LM v. DBM, 2017 ONSC 5197

COURT FILE NO.: 5959/16 (Haileybury)

DATE: 2017-09-01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LM

Applicant

– and –

DBM

Respondent

Paul E. Trenker, for the Applicant

Sylvano A. Carlesso, for the Respondent

HEARD: August 15 and 16, 2017

REASONS FOR JUDGMENT

Gordon RSJ.

Overview

[1] The trial of this action was held to determine issues of custody, support and equalization of net family properties.

[2] As a preliminary matter, and although it was not requested by either party, I am making an order under section 70 of the Children’s Law Reform Act that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. I do so having regard to the nature and sensitivity of the evidence I heard and the potential for mental or emotional harm to the parties or their child should such evidence be published or made public.

Background Facts

[3] The Applicant and the Respondent were married on September 11, 1999 after living together for just over eight months. They separated on November 12, 2015 and have not reconciled. Together they have one daughter, BDMM, who is now sixteen years of age.

[4] Their story is an unfortunate one. The discord in their marriage arose as a result of the Respondent’s affliction with posttraumatic stress disorder (PTSD) and its effect on his behavior. The Applicant found herself unable to cope. Their daughter came to fear him. The family broke down not as a result of anyone’s deliberate actions but because of illness. These are good people who have found themselves in difficult circumstances.

[5] The Applicant is now 48 years of age. She has full-time employment as a dental hygienist and expects to earn about $55,000 in 2017.

[6] The Respondent is an Ontario Provincial Police Officer but is currently on leave as a result of his PTSD. He currently receives tax-free Workplace Safety and Insurance Benefits (WSIB) of $60,739 per year and taxable income from his employer of $57,835. He is hopeful that he will return to work with accommodation of his disability in the not too distant future. When that happens, his income will revert to taxable income of $118,574 per year.

[7] BDMM is a high achiever. She maintains an academic average of 93% in high school and excels at athletics. She plays on several school teams and attends an elite camp for volleyball and leadership skills. Her sights are set on a career as an optometrist. However, as accomplished as she is, her mother reports that she suffers from emotional difficulties related to the Respondent, the separation and the issues that remain outstanding. She receives ongoing psychiatric care and counselling. She does not have contact with her father and has not since shortly after separation. Although he has attempted to keep the lines of communication open, and clearly loves his daughter, he sees more harm than good in forcing her to have contact with him. He hopes that in time they will be able to develop a positive relationship. In the meantime he remains committed to her well-being, to paying the child support that is required of him, and to contributing to special expenses that are within his means.

[8] The parties have been responsible in their financial planning. The Applicant has not insignificant registered retirement savings plans. The Respondent has a significant pension. They have accumulated a registered education savings plan for their daughter. Together they own their home. Although they have some debt, it is not excessive given their station in life.

The Issues

[9] There are several issues and sub-issues which remain outstanding between the parties:

1. Custody of BDMM: should custody should be to the Applicant alone or to her and the Respondent jointly?

2. Child Support: What is the Respondent’s income for the calculation of child support? To what extent should he contribute to section 7 expenses? Who should be the beneficiary of life insurance maintained to secure the support obligation? Should there be a retrospective award?

3. Spousal Support: What is the Respondent’s income? What is an appropriate amount of spousal support? Should there be a review? Should support should be time limited? To what extent should the Respondent maintain the Applicant as a beneficiary of his medical benefits? Should there be a retrospective award?

4. Equalization of Net Family Properties: What is the equalization payment? How is it to be paid?

[10] I will deal with each in turn.

Custody

[11] The Respondent asks the court to make an order for joint custody of the child, with decision making reserved to the Applicant. Such an order, he submits, would give him at least a semblance of involvement in the life of his child and perhaps promote their eventual reconciliation.

[12] BDMM is now over 16 years of age. She has been consistent in her position that she wishes to have no interaction with her father for more than 18 months. According to the Applicant, the child is quite emotionally fragile and reacts badly to the notion that her father would have any significant involvement in her life.

[13] Custody of a child is to be determined in the child’s best interests having regard to the factors set out in section 24 of the Children’s Law Reform Act. Having regard to those factors, it is not appropriate to make an order for joint custody. In particular, I note the following. First, although I do not doubt the Respondent’s love, affection, and emotional ties to the child, at the present time they are not shared by the child. BDMM is however, close to her mother and shares love, affection and emotional ties with her. Second, the child’s views are clear that she does not want her father involved as a custodial parent. At her age, her views must be given significant weight. Third, the child has lived in the stable home of her mother without involvement of her father for a significant period of time. Fourth, because of the views and preferences of the child, the Respondent does not have the practical ability to act as a parent towards her.

[14] I wish to be clear that in my view the Respondent has the ability and the willingness to provide the child with guidance and education and the necessaries of life. He loves her and is committed to acting in her best interests. Unfortunately, the nature of his relationship with her is not one that warrants designation as a joint custodial parent.

Child Support

What is the Respondent’s Income for the Calculation of Child Support?

[15] As noted above, the Respondent’s income is currently made up of taxable and a non-taxable components. Both parties agree that the Respondent’s income must be grossed-up to determine the appropriate income for application of the Child Support Guidelines.

[16] The Respondent is of the view that it is appropriate to gross-up the non-taxable amount of $60,739 by 25% to 30% as is typically done when a payor has non-taxable income. The Applicant, on the other hand, has provided Divorcement calculations in which the Respondent’s non-taxable income in combination with his taxable income is imputed to be $159,344. For the reasons which follow, I am in agreement with the Divorcemate calculation.

[17] Section 19(1)(b) of the Child Support Guidelines (Ontario) allows the court to impute income to a parent having regard to such circumstances as the parent being exempt from paying federal or provincial income tax. This is because the guidelines have been based upon the taxable income of the parent. Where a parent receives non-taxable income, it is appropriate to equate the amount received to a comparable taxable income to ensure the appropriate amount is being paid.

[18] In the case before me, the appropriate exercise is not to simply gross up the amount of the non-taxable income without regard to his other taxable income. To do so would ignore the effect of increases in the marginal rates of taxation. What is more appropriate is to determine his total after tax income and then calculate what amount of solely taxable income would be required to generate this same amount.

[19] In 2016, before the imputation of income to reflect the non-taxable aspect of his income, the Respondent’s annual income, calculated in accordance with section 16 of the Child Support Guidelines (Ontario) was $115,985 [total income of $174,307 less union dues of $1,363 and less WSIB repaid to the employer of $56,959]. On this amount of income just $6,102.98 of taxes was paid, leaving an after tax income of $109,882.

[20] In 2017, assuming an increase in salary to $118,574 as conceded by the Respondent, one might reasonably expect a similar analysis to result in after tax income of around $112,000. I have little difficulty accepting that $159,344 of taxable income would be required to generate this amount of after tax income. For this amount of taxable income, the guidelines provide for child support at the rate of $1,332 per month. There has been no suggestion that this amount is inappropriate.

[21] It seems probable that the Respondent will return to work at some point in the future. When he does so he will lose the non-taxable aspect of his current income and will return to regular salary. This will constitute a material change in his circumstances and the parties would do well to recognize now that child support will decrease significantly at that time.

Section 7 Expenses

[22] BDMM is already an accomplished young woman. In addition to maintaining an academic average of 93%, she is on the school basketball, volleyball, soccer and baseball teams. She is particularly good at volleyball and has attended a special volleyball camp in the summer to enhance her skills. There are significant costs associated with her activities.

[23] Exhibit #3 at trial summarized the various special or extraordinary expenses the Applicant says have been and will be incurred for BDMM. The Respondent has four main difficulties with the expenses claimed: (1) He is not satisfied that all these expenses were in fact incurred; (2) He is not satisfied that all these expenses meet the definition of special or extraordinary expenses; (3) He is not satisfied that all expenses are necessary; and (4) He is not satisfied that all expenses are reasonable given their means.

[24] As a starting point, I am satisfied that all expenses claimed were in fact incurred. The Respondent points to the Invoice at Tab D of Exhibit 3 as an example of inadequate proof because there was no credit card or other proof of payment appended. However, Tab D is an invoice showing that payment has been made. It gives the cost of the program BDMM attended and it shows the payment with a zero balance. Proof beyond this is unnnecessary.

[25] I am also satisfied that the costs of tutoring ($960 per year) and psychological counselling ($300 per year, as it is only costs in excess of $100 that are claimable) meet the definition of special expenses in Section 7(d) and 7(c) respectively.

[26] Several expenses I would not term as special or extraordinary but as expenses any custodial parent might expect to incur in the normal course of raising a child. The Respondent’s contribution to such expenses are already covered by his payment of guidelines support. These expenses would include those claimed for gym membership ($281.31 per years), skiing membership ($150 per year), school athletic fee ($75 per year) and activity fee ($25 per year), prom dress ($313 per year), cell phone (981.40 per year) and car insurance ($900 per year).

[27] I am satisfied that the remaining expenses claimed meet the definition of extraordinary under both section 7(1.1) (a) and (b). The expenses claimed are significant and more than the Applicant can reasonably cover even with the guideline child support she receives. The child clearly has special athletic and leadership qualities that make these programs beneficial to her.

[28] The remaining analysis requires a consideration of the necessity of the expenses in relation to the child’s best interests and the reasonableness of the expenses in relation to the means of the parents and the child and having regard to the spending pattern of the parent in respect of the child while they lived together. The Respondent, in his closing submissions, takes the position that each such expense must be as necessity to be considered under section 7. I do not share that view. Indeed, it is difficult to imagine how any extraordinary expense for an extracurricular activity could be a necessity for the child. What is of concern is the necessity of the expense in relation to the child’s best interests. In this context necessity does not mean that the expense is necessary or required for the best interests of the child; rather it contemplates an assessment of the importance of the activity in relation to the best interests of the child.

[29] I have little difficulty finding that the expenses for tutoring and counselling are necessary and reasonable. The counselling assists BDMM in dealing with the issues arising out of the breakup of her family. The tutoring has assisted her in excelling academically and will contribute to her ability to attend the post-secondary program of her choice. The combined cost of $1,260 per year is well within the means of the parties.

[30] I have little difficulty finding that the basketball, volleyball, beach volleyball, soccer and baseball fees incurred for DNMM to play on school teams are both necessary and reasonable. BDMM is a particularly driven young woman. I accept her mother’s testimony that these school sports provide a valuable diversion from the emotional turmoil surrounding the separation and her relationship with her father. I also accept that playing on these sports teams provides valuable life lessons in discipline, team work, and leadership. The combined cost of these programs ($1,115 per year) is reasonable given the means of the parties. Similarly, the sports equipment necessary to have her play on these teams are appropriate ($700 per year).

[31] The cost of volleyball camp each summer is also necessary given the child’s particular skill in and affinity for that sport. The cost of the camp ($1188.75) is reasonable given the means of the parents.

[32] The cost of having BDMM take a driver’s education course is again both necessary and reasonable. It will give her the skills necessary to drive a vehicle safely, and will make insurance more affordable. As a one-time expense of $800 it is well within the means of the parties.

[33] BDMM has two educational-related trips planned for 2017. The first is to Costa Rica at a cost of $3,143. The second is to Tanzania at a cost of $4,295. Although both trips would undoubtedly be in her best interests, I am of the view that the second trip is neither necessary having regard to her best interests nor reasonable given the means of the parties. Should BDMM which to pursue this trip, it would be incumbent upon her to undertake some long range planning to raise the funds on her own.

[34] The total cost of the expenses I have found it appropriate to have the Respondent contribute to are $8,136.75. BDMM is working part-time and should be expected to contribute something herself. In my view, $7,000 per year would be a fair contribution towards these expenses by her parents. Give their respective incomes and having factored in the effects of spousal support as determined below, the Applicant would contribute 37.6% or $2,632 and the Respondent 62.4% or $4,368 per year. In the particular circumstances of this case it is most appropriate to have the Respondent pay a set monthly amount on account of these expenses rather than force the parties to communicate and cooperate as and when they are incurred. Accordingly, the Respondent shall pay an additional amount of $364 per month to the Applicant on account of section 7 expenses. The Applicant shall be required to provide the Respondent with an accounting, along with proof of payment, of all section 7 expenses incurred each year between September 1 and August 31 of the following year. This accounting is to be provided not later than September 30, beginning in the year 2018.

Retrospective Section 7 Expenses

[35] The Applicant’s submissions are not clear on whether and to what extent a retrospective claim is being advanced relative to Section 7 expenses. Paragraph 14 of the written closing submissions states: “With respect to the issue as to whether past expenses were in fact incurred [those expenses were tendered, for the most part, to establish some basis for the expected expenses], some expenses were not supported by receipts. The Court does, however, have the evidence of Mrs. L.M., under oath, that, in fact, they were.”

[36] For the reasons set out below relative to the issue of retrospective child support, I decline to make an order that the Respondent contribute to these past expenses. That the informal support arrangements between them did not contemplate additional payments for such expenses is likely given that the Applicant did not advise the Respondent of the expenses and did not ask for additional money as they were being incurred.

Life Insurance

[37] The parties have agreed that the Respondent be required to maintain life insurance of not less than $100,000 to meet his child support obligations in the event of his death. They disagree about who should be the beneficiary of the insurance in trust for BDMM. The Applicant suggests it be her. The Respondent would prefer to appoint his brother. In my view it would be appropriate to appoint the Respondent’s brother in trust for BDMM. Although I have been given no reason to believe the Applicant would mishandle or misappropriate the funds it is best to appoint someone for whom there is no possibility of conflict of interest.

Medical Benefits

[38] The parties have agreed that the Respondent shall maintain BDMM as a beneficiary of the medical, dental, optical, prescription and other benefits provided for by his employer and for which she qualifies.

Should Child Support be Retrospective?

[39] There is no temporary order requiring the payment of child support by the Respondent. Since separation the Respondent has paid most all of the expenses related to the matrimonial home, has paid vehicle insurance on behalf of the Applicant, and has contributed to certain other expenses from which the Applicant and the child benefitted. In most all of these months the expenditures exceeded $1,800. In some months they were more than $3,000. None of the amounts paid has been treated as spousal support and accordingly the Applicant has not been required to include any part of the payments as income, nor has the Respondent received the benefit of any deduction.

[40] The parties seem to have had an implicit agreement that this is how support would be handled between them until an order of the court was made. The amounts paid are not demonstrably higher or lower than what court ordered support was likely to have been. In all the circumstances it is not appropriate to interfere retrospectively with such an arrangement.

Spousal Support

What is the Respondent’s Income?

[41] For the reasons set out above, I find the Respondent’s current income for the purposes of the calculation of spousal support to be $159,344 per annum. Again, the parties would do well to recognize that the Respondent’s income will decrease dramatically when he returns to duty, with the result that spousal support is likely to also decrease.

What is the Appropriate Amount of Spousal Support?

[42] Given the Applicant’s income of $55,000 and the Respondent’s income of $159,344, the Spousal Support Advisory Guidelines (SSAGs) give the following range for the quantum of spousal support: Low: $1,293 Mid: $1,770 and High: $2,217.

[43] Section 33(9) of the Family Law Act sets out the factors for consideration in determining the amount of spousal support to be paid. Having regard to those factors I make the following findings.

[44] With respect to subsection 33(9) (a), (b), (c) and (d) I find that following the equalization of the parties’ net family properties set out below, each will have assets of a similar nature and liquidity. Once the sale of the home is complete, neither will have significant debt. The Respondent will continue to accrue pension over the remainder of his career. The Applicant is unlikely to be able to accumulate any significant savings without the payment of spousal support.

[45] The Respondent’s income is likely to decrease in the future once he returns to work and the non-taxable aspect of some of his income is eliminated. He will thereafter resume his salaried position and will likely have modest annual increases to his income. The Applicant will continue to work full time earning in the range of $55,000 per year. There is no reason to believe that she will have other than modest yearly increases in her income to offset inflation. She is able to contribute to her own support.

[46] Although the Respondent will have significant child support obligations as a result of this decision, he will have the capacity to provide a measure of spousal support.

[47] With respect to subsection 33(9)(e), I find that both parties are fairly young and both are in good physical health. I have averted to the Respondent’s mental health issue and find that it is likely to prevent him accruing significant overtime income as he did throughout the marriage. On the information before me, his illness is unlikely to cause a reduction of income below his base salary.

[48] With respect to subsection 33(9)(f) I find that while the parties lived together they had a comfortable lifestyle. They had a nice home and reliable vehicles. They took vacations and made the odd trip out of the country. The Respondent was able to accumulate some sports memorabilia and hunting equipment. The parties wanted for little. The Applicant will not be able to sustain a similar standard of living without support.

[49] With respect to subsection 33(9)(g) I find that the Applicant is trained as a dental hygienist. She has held regular employment in that field for many years and has worked full-time since shortly after the separation. She has little debt and BDMM will, it is expected, move from the home in September of 2019 to pursue post-secondary education. There will come a time when the Applicant will be able to support herself completely. There is no evidence that her earning capacity has been adversely affected by the responsibilities she assumed during the marriage.

[50] With respect to subsection 33(9)(j), I find that the Applicant was primarily responsible for the care of their daughter during the marriage. This is not to say that the Respondent was uninvolved. He took an active interest in his daughter and her development and spent a good deal of time with her. However, the nature of his work took him away from the home for extended periods with some regularity. The Applicant’s dedication to the care of their daughter allowed the Respondent to pursue his career without hindrance. It is fair to say that she contributed significantly to his career potential over the course of their marriage.

[51] With respect to subsection 33(9)(l), the Applicant has suggested that because she will be the sole parent to assist BDMM in her many pursuits, she is likely to be unable to devote her full time to her occupation. I would not agree with this submission for two reasons. First, BDMM is now 16 years of age and without doubt will soon have her driver’s license. When this occurs she will be able to participate in many of her activities independently. Secondly, BDMM will finish high school in the spring of 2019, after which she will likely be living away from home. I find that the parties cohabited for close to 16 years.

[52] On consideration of all these factors, it is appropriate to set spousal support at the midrange of the SSAGs, namely $1,770 per month. This will result in the Applicant having 51.3% of the parties’ net disposable income, which is not inappropriate given that there will be two people dependent upon that income. Such an award has the effect of recognizing the Applicant’s contribution to the relationship and the economic consequences of the relationship on her, it shares the economic burden of child support equitably, and should allow the Applicant to become self-sufficient over time.

Should there be a Review Date for Spousal Support?

[53] In Fisher v. Fisher 2008 ONCA 11, the Ontario Court of Appeal held that a review should be the exception and not the norm, and that a review is most appropriate when a specified uncertainty about a party’s circumstance at the time of trial will become certain within an identifiable timeframe.

[54] In the circumstances of this case the only thing that is uncertain is when the Respondent will be back at work with the result that his after tax earnings are reduced. That uncertainty will not be resolved within an identifiable timeframe. Accordingly, this is not an appropriate case for a review order.

Should Spousal Support be Time-limited?

[55] The compensatory aspect of the Applicant’s claim is limited, and to the extent it is made out, can be addressed adequately by a time limited order. The Applicant is reasonably young and healthy. She is employed and has marketable job skills that are likely to ensure her continued full-time employment. The lone child who is dependent upon her is now over 16 years of age and will most likely be leaving the home in two years’ time. Although the parties lived a comfortable lifestyle, they did not live lavishly and the Applicant’s standard of living is unlikely to be dramatically less than it was during marriage. To the extent it lessens, the duration of support provided should be adequate to allow her to adapt to that change.

[56] In my view, this is a case in which time-limited support of ten years is appropriate. More particularly, given that the Respondent has effectively supported the Applicant from the date of their separation in November of 2015, it will be appropriate for him to pay spousal support up to and including November 1, 2025.

Medical Benefits

[57] The Applicant wishes to remain a beneficiary of the Respondent’s medical and other benefits indefinitely and to have an order that the Respondent continue to provide her with those benefits.

[58] The Respondent is willing to maintain the Applicant as a beneficiary of his work-provided medical and other benefits for as long as she qualifies under the terms of his benefit plan. However, once the Applicant ceases to be his spouse (as would be the case if they should divorce) she would no longer qualify.

[59] Absent any evidence of the cost of replacement benefits once the Applicant no longer qualifies, I decline to make an order requiring the Respondent to provide those benefits.

Restrospective Spousal Support

[60] For the same reasons I have declined to award retrospective child support, I decline to award retrospective spousal support.

Equalization of Net Family Properties

What is the Equalization Payment?

[61] The Applicant agrees that the starting point for calculation of the required equalization payment is the net family property statement of the Respondent set out at Tab 4 of the Respondent’s Trial Record. Working from that statement, which calls for an equalization payment from the Respondent to the Applicant of $90,895.69, there are several items at issue.

[62] The first is the value of the laser machine owned by the Applicant. The Applicant says she sold it following separation for $5,000 and uses this amount as its value. The Respondent has produced an internet advertisement in which a somewhat similar unit offered for sale at over $18,000 (CAN). He says its value should be set at $10,000. In a letter to the Applicant dated July 17, 2016, the Respondent offered to purchase the laser from the Applicant for $7,500 to $7,900. It is to be noted that the Applicant took no steps to have the unit valued or to offer the unit for sale to a broad range of buyers. In all of the circumstances, and in particular the offer made by the Respondent, it is appropriate to value the laser at $7,500.

[63] The second issue is the value of life insurance owned by the parties. The parties agree the value of the life insurance owned by the Applicant is $1,296.98 as opposed to the $8,000 shown. The Respondent suggests that because there was no evidence led as to the value of the Respondent’s life insurance it should be shown as nil. I disagree. Both the Applicant and the Respondent filed Net Family Property Statements in which the value of the Respondent’s life insurance was shown as $4,000. There was, in effect, agreement on that issue. No further proof was required.

[64] The third issue is the Applicant’s VISA debt of $8,493.34 which is not included in the Respondent’s statement. On the evidence, the balance on that VISA was $4,221.12 at the date of separation. The increase in balance was the result of purchases made by the Applicant after separation. Notwithstanding that some of these purchases were made for Christmas gifts for members of the Respondent’s family, the expenditures were those of the Applicant and were post-separation. The appropriate amount is the balance as of date of separation.

[65] The fourth issue is the income tax discount rate, if any, to be used in valuing the Registered Retirement Savings Plan of the Applicant and the Pension of the Respondent. Each party has used arbitrary rates and neither led any evidence on the issue. There is apparent agreement between the parties that the Applicant’s RRSP’s should have a notional tax rate of 17% applied. The Respondent is of the view that his pension should be subject to a notional tax rate of 25%. It is clear that the required equalization payment will be by way of transfer from the Respondent’s pension. The required transfer as detailed below will be $126,918. Given that this will leave a significantly greater fund of registered retirement income for the Respondent and that he will continue to pay into his pension for years into the future, it is reasonably clear that he will have a greater income on retirement and consequently a greater tax liability. However, I am not satisfied that the gap in their retirement incomes will result in an 8% difference in their tax rates. In all of the circumstances and with the limited information that I have, I will apply a notional tax rate of 22% to the Respondent’s pension, resulting in a net family property entry of $387,468 rather than $372,000 as proposed by the Respondent.

[66] With these adjustments to the net family property statement of the Respondent, the required equalization payment is $105,342 payable by the Respondent.

How is the Payment to be Made?

[67] Two sub-issues present with respect to the equalization payment.

[68] The first sub-issue is whether the Applicant should have the home transferred to her or whether it be sold (there is currently an offer for its purchase for $335,000). The second sub-issue is whether the pension transfer must be grossed up.

[69] The parties’ home is registered jointly. The Applicant wants very much to retain it. Although there have been various negotiations towards that end over the course of the separation, the parties have never been ad idem on the issue. The Applicant feels very strongly about remaining in the home because of the emotional reaction of BDMM when advised that it might be sold. According to the Applicant, BDMM became despondent when advised that the house had been listed for sale and required the immediate intervention of her counsellor. Although there was no medical evidence led as to the extent of BDMM’s reaction and the potential impact of her having to move from the home, it is clear that the Applicant is very fearful of the emotional consequences of such a move. Her concerns cannot be discounted summarily.

[70] Section 9(1)(d) of the Family Law Act gives me the authority, if appropriate to satisfy an obligation imposed by an order for the equalization of properties, to order that property be transferred to or vested in a spouse or that any property be partitioned or sold. The transfer power under this section must be specifically connected to the satisfaction of an equalization order and is not a general transfer power for the settlement of disputes arising out of marital breakdown [see Buttar v. Buttar, 2013 ONCA 517 (Ont. C.A.)]. The scheme of the Family Law Act does not support the proposition that an application judge can simply redistribute property and debt among the parties [see Danecker v. Danecker, 2014 ONCA 239 (Ont. C.A.)].

[71] The order requested by the Applicant amounts to a request that property and debt be redistributed in such a way as will allow her to retain the home. On my reading of the Court of Appeal decisions, I am without authority to make the order even though it could be implemented in such a manner that the Respondent would be no worse off than if the property sells. I am without authority even though it is very likely in the best interests of the child.

[72] Related to this request by the Applicant was her alternate request to be granted exclusive possession of the home until such time as BDMM graduates high school in the spring of 2019. Section 24(3) of the Family Law Act sets out the factors for consideration on this issue. Having considered the evidence of the parties, it is my view that an order for exclusive possession is not appropriate. I am satisfied that such an order would likely be in the best interests of the child in that there will be some disruptive effect of a move to other accommodation, and the child has expressed a desire to remain in the home. However, the best interests of the child is not the sole consideration. As noted above, there will be significant support orders imposed upon the Respondent and he will be obliged to make a significant equalization payment, albeit by way of pension transfer. If exclusive possession of the home is granted, he will be without access to his equity in the home and will remain liable for significant joint debt. Although the Applicant would be required to assume most of the responsibility for the joint debt, she would not have the ability to consolidate or otherwise rationalize that debt to make it more manageable. Finally, there has been no allegation that there is a lack of other suitable and affordable accommodation for the Applicant and their daughter.

[73] It is my view that the entire equalization payment should be made by way of immediate lump sum transfer out of the Respondent’s pension plan. Aside from the modest net proceeds from the sale of the home (likely to be in the range of $17,000 each after payment of joint debts), the Respondent has virtually no liquid assets from which to make the equalization payment. The proportion of his net family property that consists of the imputed value of his interest in the pension plan is 100%. Without the transfer, the Applicant would have modest resources available to her in retirement. The immediate transfer of a lump sum will contribute to her long term financial stability.

[74] With respect to the second sub-issue, it is my view that the pension transfer must be grossed up. To hold otherwise would result in the Applicant be awarded an equalization of after-tax dollars, but then being paid in funds upon which she will eventually be taxed yet again. The gross up should reflect her expected tax rate of 17%. The amount would therefore increase from $105,342 to $126,918.

Other

[75] The Respondent is an owner of a life insurance policy insuring the life of BDMM. There was little evidence given as to its face value, its cash surrender value, or any of its other terms. It is of some importance, however, because BDMM may have difficulty with future insurability due a protein C deficiency.

[76] The Applicant asks that I order the transfer of this policy to her as she has some concern that the Respondent may let it lapse. The Respondent testified that he will keep the policy in good standing and transfer it to BDMM when she is of the age of majority.

[77] As I have indicated above, I am without authority to order the redistribution of specific assets held by the parties. I am without authority to order the transfer of this policy.

[78] With respect to chattels, except to the extent listed in the Net Family Property Statements of the parties, I was given virtually no evidence by which to assess their value. I am advised that the Applicant retained most of the household furnishings the bulk of which were older and likely of limited retail value. I am advised that the Respondent took those items he wanted, which included sports memorabilia and hunting equipment which tend to retain their value significantly better than furnishings. In the absence of better evidence, I will simply order that each of them retain those chattels currently in their possession free of claim from the other.

Costs

[79] There were many issues argued and the success has been largely divided. If the parties are of the view that an award of costs is appropriate and cannot agree, they may make written submissions to me, not to exceed four pages in length plus attachments, within 45 days.

The Honourable Mr. Justice Robbie D. Gordon, RSJ.

Released: September 1, 2017