CITATION: Dagher v. Dagher, 2017 ONSC 3501

OSHAWA COURT FILE NO.: FC-15-1304-00

DATE: 20170606

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Iren Dagher (also known as Irene Dagher)

Applicant

– and –

Mone Dagher (also known as Mone Kanaan Dagher)

Respondent

Ursula B. Cebulak, for the Applicant

Evelyn K. Rayson and Diane Solomon for the Respondent

HEARD: May 18, 23 and 24, 2017

REASONS FOR DECISION ON FIRST PART OF THE TRIAL

SUTHERLAND J.:

Overview

[1] The parties were married on June 7, 2009. They separated on March 1, 2015. They are parents to two children: Matteo Mone Dagher born May 31, 2010 and Annabelle Mone Dagher born January 5, 2013.

[2] On May 18, 2017, the parties first appeared in front of me to commence their trial. Just days before May 18, 2017, Children’s Aid Society (CAS) was called in to investigate an incident that took place in the residence where the respondent resides. The incident does not directly pertain to the respondent. Given the recent involvement of CAS, the parties agreed to bifurcate the trial. The issues concerning property will be tried now and once CAS has completed its investigation, the issues of custody, access and support will be adjudicated.

[3] The reasons below only will pertain to the property issues.

Background

[4] The applicant is employed full time as a paralegal with SOCAN. The respondent was employed full time in a café called Café Mirage. Café Mirage was sold to new owners in 2014 and the respondent left in July 2014. The respondent did not wish to work for the new owners. He was unemployed for a time. He went to school to obtain is DZ licence and is presently working full time in construction with Distincttech Inc.

[5] On December 9, 2015, an order was given requesting the involvement of the Office of the Children’s Lawyer. The Children’s Lawyer declined the appointment. On December 9, 2015, Timms J. made a temporary without prejudice order that the respondent pay child support for the two children on a monthly basis in the amount of $600 based on an annual income of $41,200 and set the proportional share of section 7 expenses, daycare costs, using the respondent’s income of $41,200 and the applicant’s income of $58,500.

[6] Since the sale of the matrimonial home, the children have been in the de facto custody of the applicant and the respondent has been exercising access.

[7] The parties had a jointly held matrimonial home which has been sold. The net proceeds of sale from the matrimonial home was $217,200. The net proceeds have been disbursed to the parties equally.

[8] The two issues that this court must determine to complete the equalization of net family property are:

(i) How will the respondent’s use of his RRSPs that he had prior to the marriage in the Home Buyers Plan (HBP) to purchase the matrimonial home be categorized and the amount for said categorization?

(ii) The respondent indicates he received a gift from his sister Joselyn in the amount of $47,474 (US) and he loaned those monies to his brother-in-law. Is this a gift or a loan and what is the amount in Canadian dollars?

Home Buyers Plan

[9] On the date of marriage, the respondent had an RRSP in the amount of $25,000. This is not in dispute. The respondent used his RRSP to aid in the purchase of the matrimonial home after the date of marriage. This is also not in dispute. The dispute arises regarding where this RRSP is to be allocated and what was the amount of this RRSP on the date of separation.

[10] The evidence is that the HBP allows new home buyers to use up to $25,000 of their RRSP in the purchase of a new home. The owner of the RRSP will have up to 15 years to repay to their RRSP the amount of the RRSP used in the HBP. This payment schedule is the amount of the RRSP used in equal yearly amounts spread over a 15 year period. The owner of the RRSP has a one year grace period before payment commences. If the owner of the RRSP does not make the yearly payment, that amount is allocated into the owner’s income for tax purposes for that year. The result is that the amount of the RRSP portion is reduced by that amount. The effect is that the amount of the RRSP can be reduced every year in the amount of each year that the RRSP is not paid.

[11] The uncontroverted evidence at the trial is the respondent has not made any payments to his RRSP. He has been taxed on the scheduled payback amount(s). Accordingly, the respondent alleges that his RRSP amount has been reduced each year that he has not made that payment. The respondent also has received his equal share of the net proceeds of the matrimonial home and has not used his share to pay the remaining amount outstanding