COURT FILE NO.: FS-15-82731-00 DATE: 20170615 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

KARRIE WEIDMAN G. Deokaran, for the Applicant Applicant

• and -

NEIL WEIDMAN Mr. Weidman, on his own behalf Respondent

HEARD: May 24, 25, 26, 2017 at Brampton

REASONS FOR JUDGMENT

André J.

[1] The issues in this trial are access to the two children of the marriage, spousal support and equalization of net family property. Ms. Karrie-Lyn Weidman (Ms. Weidman) seeks increased access to the couple’s two sons who currently live with Mr. Weidman, spousal support in the amount of $307 monthly, and an equalization of net family property. Mr. Weidman opposes any increased access to the children and the quantum of spousal support sought by Ms. Weidman. He is not opposed to the equalization of net family property.

SUMMARY OF THE EVIDENCE

[2] Ms. Weidman testified that she met Mr. Weidman in California in 1994. They moved to Canada later that year. The parties initially lived in a basement apartment of Mr. Weidman’s parents home. They got married on May 27, 1997. They subsequently purchased their matrimonial home in June 2000.

[3] The couple’s first son, Austin, was born on July 10, 2000. Their second son, Evan, was born on September 17, 2001.

[4] Ms. Weidman worked as a billing clerk before Austin and Evan were born. Following the birth of their children, the couple decided that Ms. Weidman should remain at home to care for the children while Mr. Weidman operated his own business as a landscape contractor.

[5] Ms. Weidman maintained that she did the laundry, cleaned the house, cooked the couple’s meals and took care of the children. She took them to their medical appointments and school. She volunteered in some of their programs and coached their sons’ soccer team when Austin and Evan were 11 and 10 years old.

[6] Ms. Weidman described Mr. Weidman as a “good dad,” a “good husband” and noted that he “helped out as much as he could”.

[7] During the marriage, Ms. Weidman worked sporadically as a bartender/waitress. She earned between $12,000 and $15,000 annually. Mr. Weidman, on the other hand, earned approximately $80,000 annually although that amount does not include the cash payments which Mr. Weidman frequently received for work he did.

[8] The relationship between the couple deteriorated to a point where in the three days preceding March 1, 2014, Mr. Weidman threw his wife’s personal possessions out of the matrimonial home. The two then got into an altercation about Ms. Weidman’s keys to the home. At one point, Ms. Weidman tried to remove her keys from Mr. Weidman’s pocket. Mr. Weidman called a friend and told him that his wife was trying to kill him. The friend called the police who subsequently charged Ms. Weidman with assaulting Mr. Weidman. This charge was withdrawn six months later.

[9] Ms. Weidman has not stepped inside the matrimonial home since March 1, 2014. Mr. Weidman even struck her vehicle with his truck when she parked in the driveway.

[10] Ms. Weidman described her relationship with Austin and Evan as very poor. She accused Mr. Weidman of poisoning her sons against her. She pointed to an assessment conducted by the Office of the Children’s Lawyer (OCL) which confirmed that Mr. Weidman manifests a great deal of animosity towards her; one which he has transferred to Evan in particular. Evan, she testified, uses derogatory language to her. He suffers from Attention Deficit Hyperactive Disorder (ADHD) and was prescribed the drug Ritalin. However, Mr. Weidman unilaterally stopped Evan from taking the drug after telling him that it helped his mother control him. Ms. Weidman enrolled her sons in counselling on the recommendation of the OCL but Mr. Weidman stopped them from attending after the first session.

[11] After leaving the matrimonial home, Ms. Weidman was homeless until October 1, 2015. Between March 1, 2014 and October 1, 2015, she lived in various basement apartments. She worked intermittently as a waitress. She did a 17-week course in office administration and business technology in 2016 but has not obtained employment in that field.

[12] Ms. Weidman earned $8,310 in 2014; $11,857.24 in 2015 and $11,587.11 in 2016. Her 2014 income was fully derived from social assistance; her 2015 income included social assistance in the amount of $7,579.99; her 2016 income also included social assistance in the amount of $7,579.99.

[13] Ms. Weidman obtained a full time position as the manager of a pub two weeks before trial. She now works 47 hours per week and earns $10.50 per hour plus tips or $493.50 per week. In addition, she estimates that she receives approximately $150 monthly in tips.

[14] Mr. Weidman testified that he essentially took care of the children from 2008 to the present. He stated that his wife had an extra-marital affair prior to 2014 and, on the pretext of going to work, would go out in the evenings while he cared for the children. He threw out her clothes in March 2014 after learning about the affair. They had a physical altercation on March 1, 2014 when Ms. Weidman was trying to get her keys to go out for the evening.

[15] Mr. Weidman testified that he earned about $15,000 annually. He has a significant amount of debt and has borne all the expenses including mortgage payments, Ms. Weidman’s insurance payments on the couples’ line of credit, property taxes and home improvements. He has also taken care of the children’s needs since separation. He denied alienating Austin and Evan against Ms. Weidman.

[16] Mr. Weidman also testified that Ms. Weidman has understated her income given that she has always worked as a bartender or waitress and has received a significant amount of tips which she has not disclosed. He also maintained that Ms. Weidman has not paid him any child support since separation and that he is seeking retroactive and ongoing child support from March 1, 2014.

ANALYSIS

[17] This trial raises the following issues:

1. Should Ms. Weidman’s access to her children be increased?
2. Should Mr. Weidman be required to pay spousal support to Ms. Weidman and if so, how much?
3. Should Ms. Weidman be required to pay Mr. Weidman child support?
4. What is the quantum of net family property?

ISSUE NO. 1: Should Ms. Weidman’s access to her children be increased?

Governing Principles

[18] Both the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”) and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) suggest that the determination of custody and access to children of the marriage must be based on the best interests of the child. Section 24(2) of the CLRA sets out the criteria to determine the best interests of the child while s. 16(8) of the Divorce Act directs the court “to take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” Section 16(10) of the Divorce Act also provides that in making an order for custody or access, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

Analysis

[19] On October 30, 2015, Price J. made the following order regarding, inter alia, Ms. Weidman’s access to the children:

a) It is recommended that the children should have parenting time with their mother each Thursday after school to Saturday 2 p.m.; b) It is recommended that the children should have parenting time with their father from Saturday 2 p.m. to Thursday morning; c) All further access at the discretion of the children.

[20] It is clear that this order has been thwarted by the hostility and animosity that Mr. Weidman’s manifests towards his estranged wife and the fact that, particularly in the case of Evan, this hostility has filtered to the couple’s children. Indeed, I find Ms. Weidman to have been credible in the manner she has portrayed her interaction with Mr. Weidman and her children. I do so primarily because she did not manifest any hostility or animosity towards Mr. Weidman. To the contrary, she repeatedly described him as a “good man,” a “good father” and a “hard worker”. She did not harbour any bitterness towards him for the children’s attitude towards her. Her primary request, she repeatedly stated, was an opportunity to have greater access to Austin and Evan.

[21] Despite Ms. Weidman’s charitable portrayal of her husband, it is clear, on the evidence before me, that he had poisoned the minds of his children against their mother. Fifteen-year-old Evan openly makes disparaging remarks to her. He is allowed to smoke cigarettes. Mr. Weidman unilaterally stopped him from taking Ritalin which had been prescribed by a doctor. Mr. Weidman has discouraged Ms. Weidman from attending the family home which she jointly owns. In short, Mr. Weidman’s actions betray a blatant and callous disregard of the best interests of the children.

[22] Ms. Weidman’s testimony regarding Mr. Weidman’s behaviour is supported by the OCL’s assessment of the family. The Report dated October 2016, noted at page 17 that:

Ms. Weidman has historically been the primary parent, and attended to the children’s physical and emotional needs. She has demonstrated good decision making in the past, followed through on all recommendations of the Office of the Children’s Lawyer. Meanwhile Mr. Weidman has abdicated many of his parental responsibilities in the care of his children other than providing them with a residence. And he has done so with a malicious regard for the children’s relationship with their mother, an absolute refusal to co-parent, and he has demonstrated no regard for authority.

[23] Mr. Weidman indicates that it is the children, not him, who do not wish to visit Ms. Weidman. I reject this explanation for two reasons. Frist, their reluctance to be with their mother cannot be divorced from Mr. Weidman’s hostility towards Ms. Weidman. Second, a fifteen-year-old generally should not be left to determine the amount of access he or she should have with a parent; the more so when he or she is demonstrating self-destructive behaviour. Mr. Weidman should be helping to create a harmonious relationship between his sons and their mother rather than working to undermine such a relationship.

[24] In my view, it is in the best interests of Austin and Evan that they should be given an opportunity to develop a loving relationship with their mother. This can only be achieved through counselling, an improvement in the relationship between Ms. Weidman and Mr. Weidman and increased access of Ms. Weidman to the children.

ISSUE NO. 2: Should Mr. Weidman be required to pay spousal support to Ms. Weidman and if so, how much?

Legal Principles

[25] Subsection 15.2(4) of the Divorce Act sets out the factors to be considered in determining spousal support while s. 15.2(6) outlines the purposes for such an order. In determining whether or not a spouse should pay spousal support, the court must consider all the factors enumerated in s. 15.2(4) in addition to the objectives of such support set out in s. 15.2(6).

[26] Subsection 15.2(4) provides that:

In making an order under subsection (1) … the court shall 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 arrangement relating to support of either spouse.

[27] Any support order must meet the following objectives set out in s. 15.2(6):

(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.

[28] There are three conceptual bases for entitlement of spousal support: (1) compensatory; (2) contractual, and (3) non-compensatory. Spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. See Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 49.

Analysis

[29] The parties were married for 17 years. They made a decision following the birth of their sons that Ms. Weidman would remain at home to care for them.

[30] There is no doubt that Mr. Weidman assisted in the care of Austin and Evan. There is also no doubt that he was a good provider during the marriage. Similarly however, there is no doubt that Ms. Weidman was the primary caregiver for the children. She gave uncontradicted evidence that she took them to school, fed them and took them to sporting activities. She also coached their teams and took them to dental and medical appointments. As a result of these activities Ms. Weidman was unable to work fulltime.

[31] Following separation, she was on social assistance which added to the little that she earned, which was lower than the poverty level.

[32] In my view, Ms. Weidman has clearly been disadvantaged on account of the marriage and its breakdown. In particular, she has experienced untold economic hardship on account of the breakdown of her marriage. To that extent, she is entitled to spousal support.

Quantum of Spousal Support

[33] Ms. Weidman seeks spousal support in the amount of $307 monthly. This is based on an imputed income of $35,000 for Mr. Weidman. Ms. Weidman’s average annual reported income for the years 2014 to 2016, based on her testimony, is $10,584.78.

[34] In my view a higher income should be attributed to Ms. Weidman, based on her own testimony. She stated that she also received tips which are not reflected in her reported income. These tips, according to Ms. Weidman, amount to an average of $150 monthly or $1,800 annually.

[35] Ms. Weidman has recently been promoted to the position of manager of an Irish Pub. At an hourly wage of $10.50 for 47 hours per week, she stands to earn approximately $25,662 annually. If she earns an additional $150 monthly in tips or $1,800 annually, her annual wage will be approximately $27,462.

[36] Mr. Weidman testified that in 2014 and 2015, he annually earned $15,000 and $14,000 respectively. However, I have reason to seriously question the veracity of this information. First, on September 29, 2014, Tzimas J. ordered Mr. Weidman, in paragraph 1(h) of her endorsement, to provide “all supporting documentation for all figures claimed in his Financial Statement.” Mr. Weidman has failed to comply with this order. Second, Mr. Weidman’s September 11, 2014 Financial Statement indicated that he had monthly expenses of $3,265 or $39,180 annually. If Mr. Weidman’s information regarding his income is correct he would have increased his debt by at least $24,000 annually since separation. This increase is not reflected in his evidence regarding his current debt. Third, Mr. Weidman indicated in his Financial Statement that his 2013 annual income was $2,500 monthly and $30,000 annually. Finally, Mr. Weidman testified that from October 31, 2016 to the present, a period of approximately six months, he earned $22,359 in his new job. This amount clearly exceeds the amount he claimed he earned in past years.

[37] That said, I do not accept Ms. Deokaran’s submission that Mr. Weidman’s income should be fixed at $80,000. Even Ms. Weidman agreed that the couple had money problems. The OCL Report also noted that the Weidmans were living beyond their means. Furthermore, both litigants had significant credit card debt which also confirms that they were having problems paying off their debts.

[38] I do not accept Mr. Weidman’s testimony that he never received cash payments in his work. I accept Ms. Weidman’s testimony that he did. I fix this amount to be approximately $5,000 annually. I am therefore prepared to impute an annual income to Mr. Weidman in the amount of $35,000 annually.

ISSUE NO. 3: Retroactive Spousal and Child Support

2014

[39] An income of $10,110 is imputed to Ms. Weidman for 2014 while an income of $35,000 is imputed to Mr. Weidman.

[40] The Federal Spousal Support Advisory Guidelines (“the Guidelines”) indicate that Mr. Weidman would have been required to pay $350 monthly to Ms. Weidman on the low end, $408 at the midpoint range and $466 on the high end. The Guidelines indicate that he should be required to pay spousal support for a period ranging from 8 to 16 years. The Guidelines also indicate that Ms. Weidman would not have been required to pay child support to Mr. Weidman based on her 2014 imputed income.

[41] For the purpose of determining spousal support payable by Mr. Weidman, the quantum is fixed at the midpoint range of $408 monthly. Accordingly, the total amount of spousal support payable for 2014 would have been $408 x 10 months or $4,080.

2015

[42] For 2015, an annual income of $13,657.24 is imputed to Ms. Weidman while an annual income of $35,000 is imputed to Mr. Weidman.

[43] The Guidelines indicate that Mr. Weidman would be required to pay $323 monthly to Ms. Weidman while Ms. Weidman would be required to pay $153 monthly to Mr. Weidman in child support. Mr. Weidman would be required to pay $377 monthly and $431 monthly on a midpoint basis and on the high end respectively. In all three scenarios (i.e. low end, midpoint and high end), Ms. Weidman would be required to pay child support to Mr. Weidman in the amount of $153 monthly.

[44] Spousal support payable by Mr. Weidman to Ms. Weidman is fixed at the midpoint range of $377. When that amount is offset by the child support Ms. Weidman should have paid to him, he would have been obliged to pay her $224 per month or $2,688 for 2015 (i.e. $224 x 12).

2016

[45] For 2016, an annual income of $13,387 is imputed to Ms. Weidman while an annual income of $35,000 is imputed to Mr. Weidman.

[46] The Guidelines indicate that at the low end of the spectrum Mr. Weidman would be required to pay $324 monthly spousal support while Ms. Weidman would be required to pay child support of $144 monthly. At the midpoint range, the figures would be $379 spousal support and $144 child support while the high end of the range would be $433 and $144.

[47] Spousal support payable for this year will be fixed at $379 monthly. If that amount is offset by the $144 payable by Ms. Weidman to Mr. Weidman, then the net monthly spousal support payable is $235 (i.e. $379 - $144) or $2,820 (i.e. $235 x 12) annually.

2017

[48] Mr. Weidman is required to pay retroactive spousal support to Ms. Weidman for the first five months of 2017.

[49] Applying the net spousal support payable in 2016 to this period, the quantum of retroactive spousal support payable is $235 x 5 or $1,175.

Total Amount of Net Retroactive Spousal Support Owing From March 1, 2014 to May 31, 2017

[50] The outstanding amount owing by Mr. Weidman to Ms. Weidman is the aggregate of the following:

1. 2014 $4,080
2. 2015 $2,688
3. 2016 $2,820
4. 2017 $1,175

Total outstanding $10,763

Ongoing Support

[51] Should Mr. Weidman be required to pay ongoing spousal support or child support to Ms. Weidman?

[52] In determining this issue, I rely on the following findings:

1. Ms. Weidman’s annual income is $27,462.
2. Mr. Weidman’s annual income is imputed to be $35,000.
3. Based on the increased access which Ms. Weidman will receive to Austin and Evan, their accommodation will be shared between Mr. and Ms. Weidman, rather than residing with Mr. Weidman.

[53] Based on these factors and calculations done by www.mysupportcalculator.ca, the following support scenario emerges:

1. Ms. Weidman will not be required to pay any child support to Mr. Weidman; and
2. Mr. Weidman will pay child support to Ms. Weidman in the amount of $106 monthly.

ISSUE NO. 4: Quantum of Net Family Property

Legal Principles

[54] Section 5(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), provides that when spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

[55] Section 5(6) of the FLA provides that 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 equalization of such would be unconscionable, having regard to the following circumstances:

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of 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 circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[56] An assessment of the net family property of each spouse involves the following:

(a) Determine what property each spouse owned on the valuation date. (b) Determine the property value after making any applicable deductions and exemptions under s. 4. (c) Determine if one spouse’s net family property is less than the other, if there is a difference in net family properties s. 5(1) provides that the difference between the two shall be equalized by dividing it equally and half the difference shall be paid to the other spouse with the lower net family property, subject to step 3. (d) The court must consider whether given the considerations listed in s. 5(6), it would be unconscionable to equalize the net family properties, if not the payments shall be made as described in step 2: see Berdette v. Berdette (1991), 3 O.R. (3d) 513 (C.A.).

[57] For the purposes of this case, the valuation date is the date when the parties separated with no reasonable prospect of reconciliation. Ms. Weidman and Mr. Weidman agree that this date is March 1, 2014.

Equalization of Net Family Property

Matrimonial Home

[58] Ms. Weidman and Mr. Weidman agree that the appraised value of the matrimonial home is $732,000.

Vehicles

[59] On the date of separation, Mr. Weidman owned two vehicles: a 2002 Ford F-150 truck and a 2008 Dodge Caravan. Mr. Weidman testified that the value of the truck on the date of separation was $2,000, a figure which was not challenged. Both parties testified that the Dodge Caravan was purchased for approximately $17,000 to $18,000 in 2010.

[60] In his 2014 Financial Statement, Mr. Weidman valued the van at $7,000 on the date of separation. In my view, that amount appears to be reasonable, given the depreciation of the vehicles.

[61] Mr. Weidman subsequently gave the van over to Ms. Weidman. However, on the date of separation, Mr. Weidman owned two vehicles valued at $9,000.

Golf Equipment

[62] Mr. Weidman also owned $800 worth of golf equipment on the date of separation.

Bank Accounts, Savings and Pensions

[63] Ms. Weidman had no savings or pension on the date of separation.

[64] Mr. Weidman testified in cross-examination that he had $55.65 in a tax free savings account on the date of separation. He also testified that he had $36,499.18 in an RRSP on the date of separation. Finally, he indicated in his financial statement that on the date of separation, he had $500 in a savings account and another $500 in a TD Canada Trust account.

Life and Disability Insurance

[65] There is no evidence that either party has life or disability insurance.

Household Goods

[66] These items are comprised of household appliances, couches, tables, bed and televisions.

[67] Ms. Weidman testified that the value of household goods at the date of separation was approximately $10,000. Mr. Weidman countered that the furniture was all second hand and was only worth $500.

[68] I seriously doubt Mr. Weidman’s testimony regarding the value of the household goods. One would expect that the living room and dining room furniture, bedroom sets, and appliances would be valued well in excess of $500.

[69] In my view, the value of the Weidman’s household goods should be fixed at $8,000 at the date of separation. I also find as a fact that Mr. Weidman retained all the household goods on the date of separation.

Business Interests

[70] Mr. Weidman had a bank overdraft of $14,899.75 on his business bank account on the date of separation. He also owned $1,500 worth of tools. Ms. Weidman testified that the tools were worth approximately $15,000. However I seriously question this amount given Mr. Weidman’s uncontradicted testimony that his most valuable tools were stolen three months before separation. The value of his business interests is therefore $13,454.75 on March 1, 2014.

Money Owed to Parties

[71] Neither Ms. Weidman nor Mr. Weidman was owed any money on the date of separation.

Value of Debts and Other Liabilities

[72] The balance of the mortgage on the matrimonial home on the date of separation was $216,867.00. Ms. Weidman’s share of this debt is $108,433.50 or 50% of $216,867.00.

Ms. Weidman

[73] Ms. Weidman and Mr. Weidman owed Mr. Weidman’s father $50,000 on the date of separation.

[74] Ms. Deokaran, counsel for Ms. Weidman submits that by virtue of s. 4(1) (b) of the Family Law Act, this debt should not be deducted from her client’s net family property because it was used exclusively as a down payment on the matrimonial home.

[75] Section 4(1) provides that:

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and (b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

[76] This section however, only applies to a spouse who brings a matrimonial home into a marriage. As noted by the Court of Appeal in Collier v. Torbar, 2002 ONCA 41727, at para. 16:

Section 4(1) (b) of the Family Law Act imposes a special burden on the spouse who brings a matrimonial home into the marriage by not permitting the spouse to deduct the marriage date value of the home in calculating his or her net family property. The legislature must have determined that the special character of a matrimonial home justified this special burden.

[77] The evidence of both Mr. and Ms. Weidman is that they were married in 1997 and bought the matrimonial home three years later. They borrowed $50,000 from Mr. Weidman’s father for the down payment on the home. That loan remains unpaid.

[78] In my view, the parties must each be permitted to include this debt in calculating the net value of their assets at the date of separation.

[79] Ms. Weidman also owed her father-in-law $3,000 on the date of separation.

[80] Ms. Weidman had an outstanding balance of $3,489.09 on her Canadian Tire credit card and an outstanding balance of $9,000.69 on her CIBC credit card on the date of separation. Her credit card debt on the date of separation was therefore $12,489.78.

Mr. Weidman

[81] Mr. Weidman testified that he and Ms. Weidman owed his father $75,000. He tendered a promissory note signed by his father in corroboration of his testimony. I am skeptical about Mr. Weidman’s testimony about the extent of his indebtedness to his father for two reasons. The financial statement which he admitted to signing in 2014 indicated that the amount owing to his father was $50,000 rather than $75,000. Second, the promissory note tendered as an Exhibit is dated 2010, more than 10 years after the money was borrowed. I therefore find as a fact that the money owed to Mr. Weidman’s father was $50,000 rather than $75,000. Mr. Weidman’s share of this debt is $25,000.

[82] Mr. Weidman testified that he had the following credit card debts on the date of separation:

1. CIBC credit card $6,355.50
2. Canadian Tire credit card $7,819.98
3. TD Gold credit card $7,163.78
4. TD Visa $6,827.56

[83] Under cross-examination, it was put to Mr. Weidman that he had the following outstanding balances on the above-noted credit cards:

1. Canadian Tire $6,314.70
2. CIBC $6,355.50
3. TD Visa $6,827.36

[84] It was also put to Mr. Weidman, that in his 2014 financial statement, he only claimed to possess one TD credit card. Mr. Weidman confirmed that this is correct.

[85] Based on the above, I find as a fact that Mr. Weidman had the following credit card debt on the date of separation:

1. Canadian Tire $6,314.70
2. CIBC $6,355.50
3. TD Visa $6,827.36

[86] Total credit card owed by Mr. Weidman on the date of separation was $19,497.56.

Other Liabilities on the Date of Separation

[87] Mr. Weidman testified that he owed $7,000 in property taxes on the date of separation. Ms. Weidman disputes this on the ground that Mr. Weidman has not provided any paperwork to confirm this information.

[88] Ms. Weidman testified that she was unaware of the couple’s financial affairs during their marriage. Given that the couple was heavily in debt towards the latter part of their marriage, I am inclined to accept Mr. Weidman’s testimony regarding this debt. This debt will be split evenly between the two parties (i.e. $3,500 each).

Calculation of Net Family Property

Valuation Date (VD) Total Value of Assets on VD Mr. WEIDMAN ms. WEIDMAN

ASSETS Matrimonial Home 366,000 366,000 Vehicles 9,000 0 Household Goods 8,000 0 RRSPs 36,499.18 0 Bank accounts and savings, securities and pension 1,055.65 168.17 Golf equipment 800.00 n/a Money from Home Line of Credit 42,130.00 2,000.00 Value of Property Owned on VD 463,484.83 368,168.17

Total Value of Debts & Liabilities on VD Matrimonial Home 108,433.50 108,433.50 Business debt 13,454.75 n/a Credit cards 19,497.56 12,579.78 Property taxes 3,500.00 3,500.00 Debt owed to Mr. Weidman’s father 25,000.00 25,000.00 Total: Value of Debts & Liabilities 169,885.81 149,513.28 Net value of Property Owned on VD 293,599.02 218,654.89

Date of Marriage (DM) net Value of property ( other than a Matrimonial Home) & Debts on DM

Assets Jewellery n/a n/a Cash n/a n/a Insurance n/a n/a Value of Property Owned on DM 0 0

Total Value of Debts and Liabilities on DM Debts & other liabilities Total: Value of Debts & Liabilities 0 0

Excluded Property 0 0 Net value of Property Owned on DM 0 0

TOTALS VD & DM 463,484.83 368,168.17 Net Value of Property Owned on the VD 293,599.02 218,654.89 Net Value of Property Owned on the DM 0 0

NET FAMILY PROPERTY 293,599.02 218,654.89

Equalization of net family property = 293,599.02 – 218,654.89 = $74,944.13 $74,944.13 ÷ 2 = $37,472.06

[89] Mr. Weidman must pay Ms. Weidman her share of the matrimonial home (i.e. $366,000) + $37.472.06 or a total of $403,472.06.

Post-Separation Deductions from Net Family Property Claimed by Mr. Weidman

[90] Mr. Weidman claims the following additional deductions from any equalization payment he is required to make to Ms. Weidman:

1. The sum of $7,000 representing the value of the van he gave to Ms. Weidman four months after separation;
2. The sum of $10,000 he was ordered by Tzimas J. to pay Ms. Weidman;
3. The sum of $34,200 in mortgage payments he made in the 38 months following separation; and
4. The sum of $15,600 in household improvements he made and paid for, after March 1, 2014.

[91] In my view, the first two items should be deducted from the equalization payment which Mr. Weidman is required to make to Ms. Weidman. Accordingly, $17,000 will be deducted from that amount, leaving a balance of $386,472.06 (i.e. $403,472.06 less $17,000).

[92] The other two deductions claimed by Mr. Weidman cannot be contemplated without a consideration of the issue of occupation rent. In Khan v. Khan, 2015 ONSC 6780, at para. 11, the court noted that:

When the occupying spouse has an order for exclusive possession, occupation rent can be ordered pursuant to s. 24 of the Family Law Act, R.S.O. 1990, c. F.3. Where as in this case there is no order for exclusive possession, the court has the power at common law to order occupation rent. Either way, the same factors apply in considering whether to order occupation rent. It is not automatic and should only be awarded when it is reasonable and equitable to do so. It is a tool to achieve justice in the circumstances of the case. The award usually represents half of the rent that could have been earned had neither spouse lived in the house (see Griffiths v. Zambosco (2001), 146 O.A.C. 83 at para. 49; Irrsack v. Irrsack (1978), 22 O.R. (2d) 245 (Ont. S.C.), affirmed Irrsack v. Irrsack (1979), 27 O.R. (2d) 478 (C.A.), leave to appeal to S.C.C. refused [1980] 1 S.C.R.; De Acetis v. De Acetis (1991), 33 R.F.L. (3d) 372 (Ont. Gen. Div.), affirmed De Acetis v. De Acetis (1992), 39 R.F.L. (3d) 327 (Ont. C.A.); McColl v. McColl (1995), 13 R.F.L. (4th) 449 (Ont. Gen. Div.); Higgins v. Higgins, [2001] O.J. No. 3011 (S.C.); J.B. v. D.M., 2014 ONSC 7410).

[93] Mr. Weidman provided no documentation confirming the money he spent on home improvements or mortgage payments. I am prepared to assume that he did make payments on both areas although he never testified about the mortgage payments he made from separation to the present. Even if Mr. Weidman had provided proof of these payments it would be incumbent on this court to consider whether the amounts claimed should be offset by occupation rent.

[94] Mr. Weidman has lived in the matrimonial home since the date of separation. It is a three bedroom, two garage home with a finished basement. Mr. Weidman did not wish to see Ms. Weidman at the home and on one occasion, deliberately struck her van with his truck when it was in the driveway of the home.

[95] Based on the facts of this case, a consideration of occupation rent is appropriate. At the very minimum, this Mississauga residential home would have been rented at $2,000 monthly or $76,000 over 38 months. Half of that amount is $38,000. In the absence of any document from Mr. Weidman confirming his mortgage payments and home improvements made between March 1, 2014 to the present, I find that whatever expenses he had of that nature are offset by the occupation rent he would have been required to pay Ms. Weidman.

CONCLUSION

[96] Based on the foregoing I order that:

(1) In addition to the access that she already has, Ms. Weidman will have, effective June 1, 2017, increased access to Austin Weidman, born on July 20, 2000, and Evan Weidman, born on September 17, 2001, in accordance with the following schedule:

(a) Sunday 7:00 p.m. to Tuesday morning drop off at their school; (b) On Wednesdays after school (pickup from school by Ms. Weidman) to drop-off at school on Thursday morning; and (c) On Saturdays from 9:00 a.m. to 5:00 p.m.

(2) Effective June 1, 2017, Mr. Weidman is ordered to pay child support in the amount of $106 monthly for the children Austin Weidman and Evan Weidman.

(3) The matrimonial home located at 2852 Windwood Drive, Mississauga, shall be listed for sale by a mutually agreeable Real Estate agent within forty-five (45) days of the date of this judgment;

(4) Mr. Weidman will make an equalization payment to Ms. Weidman in the amount of $386,472.06 from the net proceeds of the sale of the matrimonial home;

(5) Mr. Weidman is ordered to pay retroactive spousal support in the amount of $10,763 to Ms. Weidman from the net proceeds of the sale of the matrimonial home;

(6) SDO to issue.

Costs

[97] Ms. Weidman seeks costs in the amount of $12,339.80 on a partial indemnity basis.

[98] Ms. Deokaran was called to the Bar in 2011. Her hourly rate of $260 is not unreasonable.

[99] In assessing the quantum of costs which can be considered fair and reasonable in this case, I consider the following factors:

1. Ms. Weidman was substantially successful in this trial and is therefore entitled to her costs;
2. Mr. Weidman’s conduct did not unnecessarily prolong or complicate the trial;
3. The issues in this trial were not complex;
4. Given the relatively short duration of the trial (three partial days), the time Ms. Deokaran spent in preparing her examination-in-chief and cross-examination (10 hours) is excessive.

[100] In my view, costs fixed at $10,000 inclusive, are fair and reasonable in this matter.

[101] Mr. Weidman is ordered to pay costs fixed in the amount of $10,000 inclusive, to Ms. Weidman within ninety (90) days of today’s date.

André J. Released: June 15, 2017