CITATION: Gamvidana v. Gamvidana, 2017 ONSC 6312
COURT FILE NO.: FS-15-83181-00
DATE: 2017 10 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Karen Gamvidana
AND:
Prahbat Gamvidana
BEFORE: Barnes J.
COUNSEL: Courtney Kazembe, Counsel for the Applicant
Prahbat Gamvidana is Self-Represented
REASONS FOR DECISION
INTRODUCTION
[1] Karen Gamvidana (the applicant) and Prahbat Gamvidana (the respondent) were married on March 19, 1988 in Toronto, Ontario. They are separated. The applicant seeks a divorce; exclusive possession of the matrimonial home; the equalization of net family property, and unequal division of property.
[2] The respondent seeks a divorce; child support; spousal support; as well as partition and sale of the matrimonial home.
[3] The respondent provided extensive oral submissions addressing the issues at trial including his request that the matrimonial home be sold. The applicant provided extensive oral submissions but ignored the respondent’s request for sale of the matrimonial home.
[4] In a previous hand written endorsement, I announced my preliminary decision on the issues and provided the applicant with an opportunity to provide written submissions to address the issue of partition and sale of the matrimonial home. Given the fullness of his oral submissions, I determined that it was unnecessary to hear further from the respondent.
[5] I have considered all of the oral and written submissions filed and the evidence presented at trial. These are my reasons for the decision on all the issues. These reasons vary and supersede my previous endorsement in this case.
BACKGROUND FACTS
[6] The parties have four children, Nicole, Samantha, Christian and Jared. All the children are now adults. The parties are separated. The date of separation is in dispute.
[7] In 1989, the parties purchased a condominium apartment (the Dixon Road Apartment). They lived in this apartment until 2004 when they moved into their current home. The parties maintained the Dixon Road Apartment as an income property for a period. It was subsequently sold and the proceeds divided equally.
[8] In 2004, the parties purchased 60 Prue Court in Brampton, Ontario (the matrimonial home). The total down payment was $50,000 with a contribution of $35,000 from the applicant and $5000 from the respondent. They are joint owners of the matrimonial home. In June 2004, they moved into the matrimonial home with their children. The respondent currently resides in the basement. The applicant and the children live upstairs.
[9] In May, 2005 the parties refinanced the matrimonial home and used $59,669.07 of the equity in the matrimonial home to pay debts. In May, 2008. The parties refinanced the matrimonial home and used $126,156.23 of the matrimonial home’s equity to pay debts. In 2009, the respondent filed for bankruptcy. He was just over $144,000 in debt.
ISSUES
[10] These are the issues:
What is the separation date (valuation date)?
How should the net family property be equalised?
Should the equalisation amount be varied?
Should child support be paid for the youngest child?
Should spousal support be ordered?
Should the applicant be awarded exclusive possession of the matrimonial home?
Should leave be granted to the respondent to amend his answer in order to include a request for sale of the matrimonial home?
Should the matrimonial home be sold?
PRELIMINARY MATTERS
[11] In his written submissions, counsel for the applicant referred to certain information contained in the settlement conference brief filed in this matter but not introduced at the trial, thus depriving the respondent the opportunity, at his option, of challenging the information presented at the trial.
[12] The information from the applicant’s settlement conference brief related to money spent by the applicant to pay for utilities and hydro expenses for the matrimonial home over the past seven years. Including information about the respondent’s use of equity in the home, in 2008, to pay gambling debts.
[13] Family law settlement conference briefs are confidential. They do not form part of the continuing record and are returned to the parties at the end of the settlement conference or destroyed by court staff immediately after the conference: Family Law Rules O. Reg. 439/07, s.1, Rule 17(22.2).
[14] No brief or evidence prepared for the settlement conference or statement made at the settlement conference shall be disclosed to any other judge, unless the parties agree or the court orders that this should occur. The exception to this prohibition is if the case is a Child Protection matter: Family Law Rules, Rule 17(23) & (24).
[15] Therefore, the information sought to be introduced cannot be introduced on the basis that it was filed at the settlement conference. The applicant had the option of introducing the information on hydro and utilities paid as part of the viva voce or documentary evidence presented during the trial.
[16] The applicant testified about the removal of $100,000.00 in equity from the matrimonial home to only pay for the respondent’s debts. This was not conceded by the respondent and for the reasons articulated below, I found no evidence to support this assertion.
VALUATION DATE
What is the separation date (valuation date)?
[17] The date of separation is September 1, 2010. This date is also the valuation date for the purpose of the equalization of net family property. The parties have been living separate and apart for more than one year. It is not disputed that there is no reasonable prospect of reconciliation. Therefore, on consent, the parties are granted a divorce.
[18] A married couple shall be granted a divorce when the breakdown of the marriage is established. One of the three ways in which a breakdown of the marriage can be established is where “the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding”: section 8(2)(a) Divorce Act, R.S.C. 1985, c. 3, (2nd. Supp.).
[19] In this case, the parties disagree on the date when they began to live separate and apart. The resolution of the dispute over the date of separation requires an assessment of the nature of the parties’ relationship.
[20] A non-exhaustive list of the criterion to consider in this assessment includes whether there is physical separation; if one or both spouses has withdrawn from the marital union with the intention of repudiating the marital relationship; whether sexual relations continue between the spouses (not conclusive); how family issues are discussed and resolved; how the spouses communicate; how family responsibilities are distributed and implemented; performance of household tasks and the true intent of each spouse as opposed to their stated intent, etc.: Greaves v Greaves, 2004 25489 (ON SC), [2004] O.J. No 2522, (S.C.), at para. 34.
[21] The parties moved into the matrimonial home on June 1, 2004. The parties currently live in different quarters in the matrimonial home but disagree on when this arrangement began. The applicant testified that when the family moved into the matrimonial home, she and the respondent occupied separate bedrooms. She said June 1, 2004, is the date she and the respondent began to live separate and apart.
[22] The applicant explained that she and the respondent had already begun to have marital problems prior to moving into the matrimonial home in June 2004. She said sexual relations ended as of June 1, 2004. She said the respondent continued to try to have sex but she always rebuffed him.
[23] The respondent disagrees. He testified that he and the applicant continued to have sexual relations until at least 2013. He testified that he and the applicant shared the master bedroom until 2011, when he moved into the basement of the matrimonial home. The respondent explained that he moved into the basement of the matrimonial home because he was concerned that his periodic vocal expressions of pain, as a result of a chronic illness, were disturbing the applicant.
[24] The parties live in the same home and occupy separate bedrooms. They both conduct shift work. When the children were younger, they worked together to coordinate their shifts to ensure one of them was always available to care for the children. Save and except periods when some of the children left the matrimonial home for post-secondary education, all four children have lived and continue to live with them. Both parties have good relations with the children. The respondent’s relationship with Samantha is not as close as with the others because he was charged with threatening her in 2002.
[25] The spouses filed their taxes together, at least until 2010. The parties maintained a joint Royal Bank of Canada account and the applicant conceded that she used this joint account with the respondent until at least 2010. This is several years past the June 1, 2004 separation date she put forward. Furthermore, the parties collaborated on some maintenance around the house. The applicant conceded that the respondent wrote a check for $2150.76 for fence repair. She explained that she paid him back.
[26] The parties opened a joint line of credit to pay for the children’s education. The parties refinanced the mortgage on the home in 2005 and 2008 to pay their debts.
[27] The respondent claimed bankruptcy in 2010 and it is not refuted that the parties signed a separation agreement at that time. They agree that this separation agreement was signed to protect the matrimonial home and the applicant’s interest in it.
[28] Both parties agree that this separation agreement was “bogus”. The Court must consider why this separation agreement was entered into if the applicant believed that they were already separated as of June 1, 2004. Why the need to create a “bogus” separation agreement for bankruptcy purposes? Entering into “bogus” agreements is not condoned by this Court. By entering into the agreement, the applicant failed to convey that the parties had been separated since June 1, 2004. This failure is instructive.
[29] The parties invested in the Dixon Road Apartment as a joint venture together with a third investor. The respondent took on the financial responsibility and management of this venture. This property was ultimately sold and divided equally three ways among the parties and a third investor.
[30] The applicant paid for all expenses relating to the upkeep of the matrimonial home and the children. The respondent made no contributions to the matrimonial home expenses.
[31] The respondent also made some monetary contributions to the education of Christian and Nicole. Beginning in 2010 – 2011, the respondent began buying groceries for the home. The applicant supplemented those groceries as required.
[32] The parties worked together to refinance the matrimonial home to pay off debts in 2005 and 2008. The parties filed their income taxes together. There was a dispute over taxes in 2010 because the applicant claimed the children’s school fees as a deduction. The respondent was furious and confronted her. He accused her of stealing his money and she explained that she had claimed the deductions on the advice of their accountant. This argument occurred in or around September 2010.
[33] The respondent submits that this argument was the watershed event that caused them to live separate and apart effective September 1, 2010. Despite this, the respondent testified that he and the applicant continued to have martial relations until at least 2013. He said did not know until sometime in 2015, that she wanted to separate.
[34] The applicant’s description of this event is most instructive. Even though she asserts that June 1, 2004 is the date of separation, she described the respondent’s outburst in 2010 as the “straw the broke the camel’s back”. As a result of this incident, she decided that “enough was enough”. Why did she come to this realisation in 2010, if the parties were already living separate and apart as of June 1, 2004?
[35] The applicant explained that she remained in the matrimonial home for the sake of the children; due to her fear of the respondent, and his threat that he would “take her for everything she had”.
[36] None of the factors described above are independently conclusive. However, the cumulative effect of all of these factors, leads me to conclude that on balance, neither party formed an express or implied intention to live separate and apart as of June 1, 2004. The seminal event was the argument in September 2010 about the taxes. The separation date is, therefore, September 1, 2010.
EQUALIZATION OF NET FAMILY PROPERTY
How should the net family property be equalised?
[37] Marriage is a partnership. Each partner’s contributions to the marriage is recognized as having equal value and importance. In recognition of this, each spouse is entitled to the equalization of the net family property: section 5(7) Family Law Act R.S.O. 1990, c. F.3. [^1]; Reeson v. Kowalik, 1991 12833 (ON SC), [1991] O.J. No. 1634 (C.J.).
[38] Equalization of net family property can take place “when a divorce is granted or marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation”: Section 5(1), Family Law Act[^2]. The spouse whose net family property is a lesser of the two family properties is entitled to one half of the difference between them: Section 5(1), Family Law Act.
[39] The process for the equalisation of net family property is described in Perri v. Perri, 2016 ONSC 5833, [2016] O.J. No. 4902, at para. 90 as follows:
Section 4 and 5 of the Family Law Act, R.S.O., 1990, c. F.3 outlines the statutory framework for settling property issues between married persons. The steps involved in this framework are summarised in Berdette v. Berdette, (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513 (C.A.):
Step 1: Determine the net family property of each spouse under section 4. To determine the net family property these questions must be answered:
What property did each spouse own on valuation day?
What is the value of that property after making deductions and allowing exemptions permitted under section 4?
Step 2: Determine whether one spouse's net family property is greater than the other. Under section 5(1) this difference is equalised by ordering that one half of the difference must be paid to the spouse with the lower net family property. This is subject to Step 3
Step 3: Before making an order under Step 2, the Court must determine whether it will be unconscionable to equalize the net family properties. Considerations to consider in making this determination are listed in section 5(6)
[40] For the reasons previously articulated, I do not accept the applicant’s suggested valuation date of June 1, 2004. Therefore, the applicant’s net family property statement (Exhibit 5) is of no assistance in the equalization of net family property calculation.
[41] The respondent submitted two suggested equalization of net family property calculations dated August 22, 2016 (exhibit 12) and October 5, 2016 (exhibit 7). These equalization figures are based on a valuation date of September 1, 2010.
[42] The applicant did not challenge any of the figures provided by the respondent in Exhibit 12. The respondent listed a number of items as property excluded under subsection 4(2) of the Family Law Act.[^3] No explanation was offered for the inclusion of the items described under this section. These items are not reproduced in the same section in Exhibit 7. These items represent the debts and liabilities of each party and are properly included in the “debt and liabilities” section in Exhibit 7.
[43] The applicant challenged the valuation dates as described in the respondent’s net family property statements. The applicant disputed the value of $300,000 attributed to the applicant’s life and disability insurance. The respondent conceded that this figure was erroneous. Therefore, the value of the applicant’s life insurance described in Exhibit 7 is zero.
[44] The applicant did not accept the respondent’s calculation, in Exhibit 7, that the applicant should pay the respondent an equalization payment of $345,836.35. The applicant did not challenge any of the other figures put forth by the respondent in Exhibit 7.
[45] The applicant testified that in 2008, the matrimonial home needed several renovations. The parties decided to obtain a loan from TD Canada to complete the renovations. There were two loans. One loan in both their names for $35,000, and a second loan, in only the applicant’s name, for $15,000. These facts are not disputed by the respondent.
[46] The parties are joint owners of the matrimonial home. However, the applicant alone makes payments on the loans. The total amount of the loans, $50,000, is shared equally between them in the calculation of net family property. Exhibits 7 and 12 are varied to reflect a debt of $25,000 each for the TD renovation loan.
[47] The applicant’s pension is divided equally between the parties. Each party is assigned an asset value of $28,752.24 (Exhibit 4).
[48] The value of the matrimonial home on September 1, 2010 was $510,000 (Exhibit 10). Therefore, half of this value, $255,000, is assigned to each party. Exhibits 7 and 12 are modified accordingly.
[49] The Dixon Road Apartment was not the matrimonial home on the valuation date. After the parties moved to the matrimonial home, they agreed that the Dixon Road Apartment would be treated as an income property. The respondent assumed full responsibility for management and expenses relating to the Dixon Road Apartment. By the valuation date, the Dixon Road Apartment had been sold and the proceeds divided equally among each of the parties and a third party investor. Therefore, the value of the Dixon Road Apartment is not the part of the equalization.
[50] The Dixon Road Apartment was a business venture between the respondent, applicant, and a third investor. It was agreed that the respondent would make the financial contributions to the property. There are a number of unanswered questions, including whether adjustments were made upon sale to account for expenses incurred by the respondent to keep this income property afloat, and whether there was an agreement between the investors on how the respondent’s financial contributions to keeping the property afloat would be handled. On the record, there is no evidence of an agreement between the parties that the respondent’s financial contributions to the Dixon Road Apartment were in lieu of his contributions to the matrimonial home.
[51] The respondent claims that his credit card debt, totalling $154,706.82, was incurred because of expenses associated with operating the Dixon road apartment as an income property.
[52] The respondent submits that since he was solely responsible for the maintenance and upkeep of the Dixon Road Apartment there was no need for him to contribute to the expenses associated with the matrimonial home. The respondent explains that the debts he incurred did not a result from online trading, gambling, or excessive consumption of alcohol, but rather from having to borrow to pay for expenses associated with maintaining the Dixon Road Apartment; contributing to expenses associated with the children; and also to supplement his own living expenses due to the fact that his ability to maximize his income earning potential has been permanently compromised by a number of motor vehicle accidents.
[53] The respondent was solely responsible for expenses associated with maintaining and operating the Dixon Road Apartment. In support of this the respondent filed his net Family Property Statements as exhibits 7 and 12. In these documents he listed debts and liabilities totalling $154,706.82 His figures were not seriously challenged.
[54] In cross examination, the respondent was challenged on his income and how he spent his money. He was challenged on his assertion that his high debt load was due to online gambling and excessive drinking and not due to the expenditures associated with Dixon Road Apartment or the up keep of his children. The respondent maintained his explanation for his high debt load at the time of separation.
[55] Apart from challenging the respondent that he was being untruthful, the respondent’s reasons for the debts were not challenged by the applicant on any objective basis. The applicant’s failure to challenge these assertions leaves a void in the record on a number of issues. For example, the time period during which he was financially responsible for the operation of the Dixon Road Apartment was not clarified, nor was the period of time over which the debts were incurred. It is not known whether the apartment generated any revenue, and if so, how much revenue was generated on a monthly or yearly basis; whether the business venture profitable; what was the annual or monthly profit or loss; or how much revenue was obtained when the Dixon road apartment was sold. It is not known how the investors account for or ignore the debt the respondent incurred in operating this business, among other details.
[56] The applicant may have thought it prudent to explore other avenues of questioning, however, as a result, the record is deficient. Because the respondent was not challenged to provide specifics on the types of Dixon Road Apartment expenses he paid, it is unclear why he had to pay them; how much these expense were; and how long he paid them for.
[57] The respondent has denied the allegations of reckless spending. He was challenged on his evidence but his testimony on the issue was consistent in all respects. Aside from providing the quantum of the debt he incurred, he was not challenged on the specifics and did not voluntarily provide details of the type of expenses and reasons for those expenses in support of his claim.
[58] In the result, there is no objective criteria by which to assess the truth of his assertion that his debts were incurred to keep the Dixon Road Apartment income property afloat.
[59] Given the state of the record, the court has none of the answers to the questions I have posed. An objective assessment of the evidence presented, leads me to conclude, on balance, that the $154,706.00 in credit card debt the respondent incurred to ostensibly pay expenses associated with the income property for an unspecified period of time; generating an unspecified amount of income; with a monthly and annual income, profit or loss of unspecified quantum; is a rather high figure to be associated with merely the operation of one condominium apartment.
[60] The Dixon Road apartment had three investors: the applicant, the respondent, and a third party investor. Therefore, this was a business venture. The investors shared equally in the profits. The proceeds of sale of the Dixon Road Apartment were divided equally between the three investors. For this reason, the investors shall also share equally in relation to debts incurred in operating the Dixon Road apartment. Therefore, each party has a one third share.
[61] I have no information on the third investor. As I explained earlier, the amount the respondent claimed was not specifically challenged. Therefore, the amount of $154,706.82, claimed by the respondent as credit card debt is reduced by $51,568.94. This figure is one third of the total Dixon Road Apartment related credit card debt the respondent is claiming. This amount is assigned to the applicant as her one third share in the liability for the purposes of the equalisation payment calculation. The respondent will be responsible for the remaining two thirds of the debt for these expenses, amounting to $103,137.88.
[62] The respondent claimed bankruptcy of just over $144,000 on April 2011. On the valuation date, his debts and liabilities were as described in Exhibits 7 and 12, subject to the variations I have made, I accept those figures as describing the respondent’s debts and liabilities as of the valuation date.
[63] The equalisation of net family property amount is calculated in accordance with the framework described in section 4[^4] and 5[^5] of the Family Law Act and as explained in Berdette.
[64] Based on these figures, the applicant’s Net Family Property is $36,019.65. The respondent’s Net Family Property is $-44,626.06 and pursuant to section 4(5) of the Family Law Act, this figure is deemed to be zero. Subject to considerations under section 5(6) of the Family Law Act, the applicant owes the respondent an equalisation payment of $18,009.83, which is half the difference of their net family property values. See Appendix A for the details of the equalization of net family property calculation.
Should the equalisation amount be varied?
[65] In circumstances that fall under the enumerated statutory conditions in section 5 (6) of the Family Law Act[^6], the Court is permitted to award a spouse an amount that is more or less than half the difference between the net family properties of the parties. The equalisation share can be varied “If the Court is of the opinion that equalizing the net family properties will be unconscionable”: Section 5(6), Family Law Act.
[66] The applicant submits that the respondent should be awarded less than half the difference between the net family properties because his conduct falls under some of the reasons for variation enumerated subsections 5 (6) (a) to (f) [^7] of the Family Law Act.
[67] The alleged impugned conduct is as follows: the respondent has accumulated debts and liabilities recklessly and in bad faith and his actions have reduced the spouses’ net family property: subsection 5(6)(b); the respondent has engaged in intentional and reckless depletion of his net family property by engaging in irresponsible gambling and online trading: subsection 5(6)(d); the applicant incurred a disproportionately larger amount of debts and other liabilities than the respondent for the support of the family: subsection 5(6)(f); and the respondent has never contributed to any expense relating to the preservation, maintenance or improvement of the property: subsection 5(6)(h). For example, he has never contributed to mortgage payments, taxes, utilities, cost of repairs or improvements or any other expense in relation to the matrimonial home.
[68] The threshold for unequal division under section 5(6) is exceptionally high. The focus of the analysis is on whether equal division, in all the circumstances, whether resulting from fault based conduct or not, yields a result which is unconscionable in all the circumstances: Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432.
[69] The applicant submits that the respondent recklessly incurred debt through gambling and online trading, and spent money on the excessive consumption of alcohol. The applicant argues this constitutes a reckless depletion of family property. The applicant submits that the equity in the matrimonial home was reduced in 2005 and 2008 to pay the respondent’s debts. In addition, she argues the respondent did not assist her with the expenses associated with caring for the children; including not contributing to groceries until 2011. She submits that although he resides in the matrimonial home, he does not does not contribute to any expenses associated with the maintenance and preservation of the matrimonial home.
[70] The applicant’s assertion that the 2005 and 2008 refinancing of the matrimonial home provided funds used only to pay the respondent’s debt is not substantiated by the evidence. Reporting letters from lawyers handling both transactions, indicate that the funds were used to pay off debts belonging to both parties: see Exhibits 2 and 3.
[71] The parties agreed that the respondent was responsible for paying for the children’s sporting activities. He has also made some contributions to the education of Christian and Nicole. As of the valuation date, the respondent was not contributing to groceries in the matrimonial home where he lives with the applicant and the children.
[72] It is not undisputed that the applicant has paid for a disproportionate share of expenses associated with the upkeep of the children and the maintenance and preservation of the matrimonial home. There has been little contribution from the respondent. These expenses include mortgage payments, tax payments, and utilities.
[73] These circumstance relate to the maintenance and preservation of the matrimonial home as contemplated in subsection 5(6)(h). The only amounts that can accurately be determined from the record are the mortgage payments made by the applicant. Therefore, an adjustment in the equalisation payment to account for the mortgage payments is warranted.
[74] The valuation date is September 1, 2010. 85 months have elapsed from that date to October 1, 2017. Given the state of the record, it is difficult to ascertain the precise monthly mortgage, tax, and utility payments made by the applicant during this lengthy period. The applicant testified that her monthly mortgage payment is $2,268.93. Therefore, over an 85 month period, the applicant has paid $192,859.05 towards the mortgage and presumably taxes of the jointly owned matrimonial home without contribution from the respondent.
[75] The respondent has lived in the matrimonial home since the valuation date and shall pay half of that expense. The figure is $96,429.53. This figure is larger than the equalisation payment of $18,009.83. The respondent thus owes the applicant an adjustment for the mortgage payments of $78,418.70.
CHILD SUPPORT PAYMENT
Should Child support be paid for the youngest child?
[76] The youngest child Jared was born on February 6, 1999. He is now an adult. No child support shall be ordered.
[77] Jared lives in the matrimonial home with his three siblings and the parties. Jared is currently 18 years old and an adult. No evidence was led by either party to show that “by reason of illness, disability or other cause,” Jared is unable to withdraw from his parents charge or obtain the necessaries of life: see section 2(1) Divorce Act, “child of the marriage” (b).[^8]
[78] The applicant has always assumed the lion’s share of expenses related to Jared’s upkeep. It seems unlikely that this circumstances will change at the current time. On the basis of the record before me, Jared is no longer a “child of the marriage” entitled to child support as defined under section 2 and 15.1 of the Divorce Act. This decision is without prejudice to Jared should he seek child support from his parents by establishing the proper evidentiary foundation in the normal course.
SPOUSAL SUPPORT
Should Spousal support be ordered?
[79] The Respondent is awarded spousal support for a period of seven years. His entitlement is based on need. This stems from a chronic injury which has impacted his income earning potential.
[80] Section 15.2 of the Divorce Act sets out the statutory framework for spousal support orders. The factors to consider in determining whether a spousal support order should issue are described in sections 15.2(4)-(6).[^9]
[81] The mere status of marriage does not create an entitlement to spousal support. The primary basis for spousal support is compensation for economic advantages or disadvantages that may arise from the roles adopted by the parties during the marriage. Entitlement is not based only on the compensatory model. It may be based on a contractual obligation. It may also be based on non-compensatory factors such as illness, disability or any circumstance of need, that is, a circumstance in which the person who previously enjoyed an “inter-spousal” entitlement now finds themselves in a circumstance of need without it. The amount and duration of the spousal support award, and the ability of the payor to pay are relevant factors to consider when granting a spousal support order: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813; Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420; Rollie Thompson, “Ideas of Spousal Support Entitlement” (2015) 34 Can Fam LQ 1.
[82] The applicant’s 2016 income is $111,710. She works as a nurse. The respondent’s 2016 income is $34,000. He works as a shipper receiver.
[83] The respondent has been involved in three car accidents since 1999. He has received five lump sum payments for the car accidents $2,500; $8000, $13,000, $3,900, $51,000. The first payment of $2,500.00 was for the 1999 car accident and made out to both the applicant and respondent because they were travelling together.
[84] The applicant submits that the respondent’s annual income should be grossed up to reflect these awards. The respondent explained that he gave some of this money to his children and that a significant amount was given to his son Christian for his education. I am satisfied that these awards are one time awards over a period of 18 years. There is no evidence that there are future awards pending or anticipated. Therefore, I will not gross up his 2016 annual income.
[85] It is not disputed that the respondent suffered injuries from his accidents that have caused him chronic pain. I accept the documentary evidence of his chiropractor that the respondent has suffered significant injuries from a motor vehicle accident that causes him severe pain. The severity of the pain has necessitated modifications of his duties by his employer in order to accommodate him by reassigning him. The severity of his pain and other ailments have required him to take a variety of medications: see Exhibit 6, tabs 6 to 13.
[86] There is good reason to be skeptical about how the respondent spends his money. His contributions to the family groceries began about 12 months after the parties separated. However, the applicant continues to supplement the groceries, pay for all expenses associated with the matrimonial home, and assume the greatest share of the financial burden for children.
[87] The respondent has no accommodation related expenses. He lives in a house he jointly owns but makes no contributions to the mortgage and other associated expenses. In effect he is living rent-free. Despite all the bills he claims he must pay from his income, he can still afford to pay $680 each month for his son Christian’s vehicle. On the record, I consider this a non-essential expense. The respondent is free to spend his money how he wishes. However, how he spends his money is a relevant factor in assessing whether or not spousal support is warranted on a non-compensatory basis.
[88] The respondent did not sacrifice any career aspirations as a result of the marriage. He and the applicant were the caregivers for their children. They shared the responsibilities in a manner that accommodated their work schedules. They worked as a team to accommodate and support each other in this regard.
[89] The respondent worked as a sales person and was very successful during the marriage. What curtailed his earning power was not the marriage but the injuries he suffered from the motor accidents. The modification of his employment from sales person to shipper receiver reduced his income considerably. On balance, I find that his injuries and associated severe pain limit his ability to increase his earning potential. Given all these circumstances, his age of 57 years, though not determinative, is a factor.
[90] In addition, it is reasonable to expect that the respondent, will have to pay accommodation costs once he leaves the matrimonial home. He will lose inter-spousal benefits including the marriage related benefit of living rent-free. This creates an entitlement to non–compensatory support because the respondent is unable to generate sufficient additional income to address the additional expenses resulting from the marriage breakdown.
[91] Based on the parties’ 2016 income, Divorce Mate calculations show a monthly spousal support range of $1,894 to $2,526 with a payment of $2,210 in the mid-range. Taken into account the applicant’s past and current disproportionately higher financial burden for the home expenses and expenses related to the children; the non-compensatory nature of the award and evidence that the respondent is less than prudent in his financial expenditures, I have selected $1,894, as the monthly support payable, over a period of seven years.
[92] I find that a lump sum payment is warranted. A lump sum payment of spousal support amounts to $159,096. This amount is subject to the appropriate adjustment for tax purposes.
[93] The applicant has shouldered a significantly larger share of expenses for a family of five including the respondent’s lodging related expenses. She has paid for all expenses associated with the home and a significant portion of expenses associated with the four children. The children are young adults although Jared is only 18 years old. The applicant works shift work and testified that after several years of carrying this financial responsibility, she is now tired and wishes to reduce her hours and her income.
[94] I am satisfied that a spousal support award of indeterminate duration will cause the applicant hardship. It is clear that after several years of cohabitation, she wishes to make a clean break.
[95] This award is based on non-compensatory factors, the most significant of which is the impact of respondent’s injuries on his ability to further his income earning abilities at his current chosen employment.
[96] However, there is some evidence that the respondent has been unable to manage his finances efficiently. The scale of the respondent’s pre-bankruptcy debt load calls into question his claim that the entirety of this debt was utilised to maintain the Dixon Road Apartment, or to make periodic, if infrequent, contributions to the children’s upkeep.
[97] The state of the record does not permit me to make a definite finding on the reasons for the respondent’s debt, but on balance, there is reason to question his ability to prudently manage his income in the face of his low earnings and the financial difficulties he reported. A further example of this, is his decision to make non-essential but significant monthly payments for Christopher’s car in the face of his own financial difficulties. The respondent is free to use his money in any way he sees fit, however, on balance, I am satisfied that these types of non-essential financial expenses exacerbate the financial need created by the end of the marriage.
[98] In addition, despite his age of 57, there appears to be no reason why the respondent cannot make efforts to increase his income by identifying appropriate higher earning employment, either by using his current skills to find work that takes into account his age and with duties suited to his current physical condition, or by seeking to acquire new skills.
EXCLUSIVE POSSESION OF THE MATRIMONIAL HOME.
Should the applicant be awarded exclusive possession of the matrimonial home?
[99] The applicant’s request for exclusive possession of the matrimonial home is denied.
[100] Section 24 of the Family Law Act gives a Court the authority to give one spouse exclusive possession of all or part of the matrimonial home.[^10] Factors to consider include the best interests of the children; any existing orders affecting family property and support; the financial positions of both spouses; any written agreement between the parties; the availability of other suitable and affordable accommodation; and any violence committed by a spouse against the other spouse or the children.
[101] The applicant requests exclusive possession of the matrimonial home. The reasons offered include: the respondent was charged with threatening some of the children and his relationship with Samantha is strained; the children wish to remain in the home and moving from the home would be disruptive; and the respondent does not contribute to the financial expenses of the home. The applicant argues that with better financial management the respondent would have enough money to pay for his own rental accommodation. The applicant submits that since a divorce shall be granted, and after several years of living under the same roof facing threats of violence against herself and Samantha, the time has for the respondent to live under his own roof.
[102] The respondent denied he acted violently towards any family member. He said he went to jail for Samantha. The gist of his argument is that he does not have enough the income to pay for his own accommodation. He repeated that he is unable to increase his income due to the injuries he sustained from the car accident.
[103] The parties have both lived in the matrimonial home since September 1, 2010, that is, just over seven years. The respondent was charged with threatening Samantha in 2002. That matter has been disposed of. His relationship with Samantha is not ideal, however, there is no evidence of ongoing threats from the respondent against the applicant or any of the children. Over these several years, the parties have managed to maintain this arrangement in a satisfactory manner. On balance, I conclude that the current arrangement, though not ideal, is satisfactory and does not frustrate the applicant’s or children’s wish to live in the home.
[104] I am satisfied that with prudent financial management, the respondent should be able to pay for his own accommodation. His current income is $34,000. He will now have the benefit of the monthly spousal support ordered. The children are now adults and his financial contribution to their upkeep will be minimal. However, living independently will require that the respondent rearrange his finances. Thus, an immediate order to vacate would cause him hardship.
[105] I have ordered the respondent to make an adjustment payment to the applicant. I have also ordered the applicant to make a lump sum spousal support payment to the respondent. A decision on whether or not to award exclusive possession to a spouse cannot take place in a vacuum. The impact of an order under must be considered in light of the payments ordered.
[106] Should exclusive possession be awarded to the applicant, the applicant will be required to begin making spousal support payments because these payments are a factor in the respondent’s ability to afford other accommodation. The applicant is already paying for the mortgage and all other expenses associated with the upkeep of the matrimonial home. Therefore, even if the support order was varied from a lump sum award to a monthly award, this circumstance would cause the applicant immediate financial hardship. On the other hand, requiring the respondent to move without spousal support would cause him immediate financial hardship.
[107] The issue of partition and sale of the matrimonial home will also have a significant impact on the ability of the parties to comply with this Court’s payment orders given their financial positions. For these reasons, there is no reason to change the less than ideal but satisfactory status quo in living arrangements, particularly since, for reasons articulated below, it will be a most temporary arrangement.
[108] The applicant’s request for exclusive possession of the matrimonial home is denied.
LEAVE TO AMEND PLEADINGS
Should the respondent’s answer be amended to include a request for sale of the matrimonial home?
[109] The respondent is granted leave to amend his pleadings to include a request for the partition and sale of the matrimonial home.
[110] The respondent did not request the partition and sale of the matrimonial home in his pleadings. In his opening statement, he asked the Court to consider the sale of the matrimonial home. He is a self-represented litigant. In effect, he requested leave to amend his answer. The need for leave was not raised at trial. The applicant made no objection to this request. However, I will address the issue of amending the pleadings to include this request because the applicant did not directly address the respondent’s request for partition and sale of the matrimonial home at trial.
[111] Rule 11(3) of the Family Law Rules O. Reg. 114/99 states:
11(3) On motion, the Court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way which costs or an adjournment could not compensate.
[112] Rule 11(3) is mandatory. No reason has been proffered by the applicant to demonstrate how an amendment would disadvantage her in a manner that cannot be compensated by a cost award: see Stefureak v. Chambers, 2005 7890 (ON SC), [2005] O.J. No. 1086 (S.C.), D'Souza v. D'Souza, 2016 ONSC 776, [2016] O.J. No. 551 (S.C.), at paras. 15-18. Therefore, the respondent is granted leave to amend his answer to request the partition and sale of the matrimonial home.
SALE OF THE MATRIMONIAL HOME
Should the matrimonial home be sold?
[113] The applicant and the respondent are joint owners of the matrimonial home. The matrimonial home shall be sold. The proceeds of the matrimonial home shall be held in trust by the real estate lawyer who handles the sale. Proceeds from the sale of the matrimonial home shall be divided equally between the parties after adjustments have been made for the associated disbursements, fees, and the various payment ordered by the Court.
[114] Co-owners of a property are joint tenants. Joint tenants have an equal interest in the property: Hansen Estate v. Hansen, 2012 ONCA 112, [2012] O.J. No. 780. The applicant and the respondent are co-owners of the matrimonial home and hence joint tenants of the matrimonial home.
[115] Section 2 of the Partition Act, R.S.O. 1990, c. P.4 authorizes the Court to order the partition (division of land) among joint tenants (co-owners) or sale of the property.[^11] Joint tenants have a prima facie right to the partition or sale of a property: Latcham v. Latcham, [2002] O.J. No. 2003 (C.A.). A joint tenant is entitled to the highest price the market can provide for the property. The appraised value of the property is not necessarily the highest price: Batler v. Batler, [1998] O.J. No. 2115 (H.C.).
[116] The Family Law Act does not oust the jurisdiction of the Partition Act. However, the Court has the discretion not to order the partition or sale of a property where such an order will prejudice a spouse’s Family Law Act claim: Silva v. Silva, 1990 6718 (ON CA), [1990] O.J. No. 2183 (C.A.); R.M. v. A.M., 2016 ONSC 7900, [2016] O.J. No. 6459.
[117] In other words, in most cases, an order for partition or sale should not be made before the Family Law Act claims of the parties have been determined on a final basis. In other words, “Orders for the sale of a matrimonial home made before the resolution of the Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course”: Martin v. Martin, 1992 7402 (ON CA), [1992] O.J. No. 656 (C.A.).
[118] The Court must be satisfied that the outstanding Family Law Act Claims are genuine claims, in which case, the matter should be deferred for trial. If the claims are not found to be genuine Family Law Act claims then the Court may decide to consider the motion at the interlocutory stage: Crosby v. Callahan, 2015 ONSC 3417, [2015] O.J. No. 5551.
[119] Once the Family Law Act issues of the parties have been resolved, the Court may exercise its discretion to order the partition and sale of the jointly-owned property under the section 2 of the Partition Act.[^12]
[120] The discretion of a Court to refuse to grant an order for partition and sale in the non-spousal context is a narrow one. Factors to be considered include: (1) whether the conduct of the moving party seeking partition and sale of the property is malicious, vexatious or oppressive; (2) an assessment of the reasonableness of the positions taken by the parties in regards to the issue of partition and sale; and (3) whether an order for partition and sale will cause hardship to the responding party: Crosby v. Callahan; Osborne v. Miette, [2004] O.J. No. 3383 (S.C.); Bailey v. Rhoden, [2008] O.J. No. 3301 (S.C.). Once the FLA interests of the parties have been resolved, the Court has discretion to grant an order for partition and sale under section 2 of the Partition Act.
[121] In the matrimonial context, the Family Law Act provides both parties with an equal right of possession of the matrimonial home. Therefore, the moving party must show that there is no good reason why the Court must not order partition and sale of the matrimonial home: Crosby v. Callahan; Walters v. Walters, 1992 8599 (ON SCDC), [1992] O.J. No. 1564 (C.J); Mignella v. Federico, 2012 ONSC 5696, [2012] O.J. No. 4705.
[122] All Family Law Act claims of the parties have been resolved in this decision and no party’s Family Law Act claims will be prejudiced by an order for partition and sale of the property. As joint tenants each party has an equal interest in the matrimonial home.
[123] The applicant request an order for an unequal distribution of any proceeds of the sale on the basis of the applicant’s larger contribution to the down payment for the sale of the matrimonial home. It is open to the parties, if they wish, to adjust their equal interest to accord proportionally with their respective contributions to the down payment for the property or for some other reasons. Absent such an agreement, a joint tenant’s equal interest in the property cannot be adjusted simply because they provided a smaller down payment in relation to the other joint tenant.
[124] Each party is entitled to the highest price that can reasonably be obtained for the property. There has been no oppressive conduct on the part of any of the parties. There is no good reason to refuse to grant the order for partition and sale of the property.
[125] In addition, both parties have claimed financial hardship. It is prudent to give them an opportunity to unlock the equity in the matrimonial home to satisfy the payment orders that I have made in resolution of their Family Law Act issues and to enable each of them to obtain their own suitable accommodation. The children are adult children and can seek their own accommodation or live with whichever parent they choose.
COURT ORDERS
[126] The parties are granted a divorce.
[127] The applicant may make the respondent an offer to purchase his interest in the matrimonial home by November 20, 2017. The respondent may, at his option, accept or refuse the applicant’s offer within 3 days after receiving it. Specifically by November 23, 2017. His decision shall be communicated in writing to the applicant and her counsel by November, 23, 2017.
[128] Unless the parties agree otherwise in a written agreement filed with the court no later than November 28, 2017, the applicant shall list the property with the municipal address of 60 Prue Court in Brampton, Ontario, which is the matrimonial home, for sale on or before November 30, 2017. The respondent’s signature and consent is dispensed with, for the purpose of listing the matrimonial home.
[129] The applicant shall choose a real estate agent and lawyer to handle the listing and sale of the matrimonial home. The respondent’s consent and signature is dispensed with, for the purpose of selecting the real estate agent and lawyer to handle the listing and sale of the matrimonial home.
[130] The parties shall fully cooperate to ensure the smooth execution of all aspects of the listing and sale of the matrimonial home.
[131] The parties shall consult each other and decide on the listing price for the matrimonial home. They shall consult each other and together decide which offer for the matrimonial home to accept. The signature of both parties is required to facilitate the acceptance and completion of any offer to purchase in the normal course.
[132] If either party refuses to give consent to a reasonable good faith offer from a third party, then the offer, which offers the highest purchase price, shall be accepted by one or the other party.
[133] The applicant shall continue to pay the mortgage and other expenses associated with the matrimonial home from November 1, 2017 until the sale of the matrimonial home is completed. The applicant shall keep records as proof of these payments and shall provide them to the real estate lawyer handling the sale to make the necessary adjustments in accordance with this order.
[134] The respondent shall pay the applicant one half of expenses related to the upkeep of the matrimonial home from November 1, 2017 until the day the sale of the matrimonial home is completed.
[135] All proceeds from the sale of the matrimonial home shall be divided equally between the parties and held in trust by the real estate lawyer who handles the sale.
[136] The applicant has already received credit for full payment of the respondent’s half of the combined $50,000 renovation loan in the net family property equalization calculation and corresponding renovation loan adjustment. Therefore, from the applicant’s share of the proceeds any balance of the combined $50,000 renovation loan that remains unpaid shall be paid.
[137] From each parties share, the real estate lawyer shall pay the amount ordered payable to the other party in satisfaction of their Family Law Act issues as follows:
[138] The respondent shall pay the applicant a mortgage adjustment of $78,419.70. This is the result of an adjustment of the equalization payment to account for the respondent’s share of the mortgage.
[139] The applicant shall pay the respondent a lump sum spousal support payment of $159,096 with the appropriate adjustments made to account for any tax implications.
[140] If either party cannot agree to the form and content of the final order within seven (7) days of being served with the draft Order – then the draft Order shall be submitted to the trial judge for approval.
[141] Should the parties be unable to agree on costs, the parties shall submit a cost outline of no more than two pages by November 16, 2017.
Barnes J.
Date: October 30, 2017
APPENDIX A
GAMVIDANA NET FAMILY PROPERTY STATEMENT
Net family property not to be less than zero
(5) If a spouse's net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).
| ITEM | APPLICANT | RESPONDENT |
|---|---|---|
| 1. Assets | ||
| Matrimonial Home | 255,000.00 | 255,000.00 |
| Pension | 28,752.24 | 28,752.24 |
| Bank Accounts, RRSP | 34,011.35 | 22,859.58 |
| Vehicles | 26,000.00 | 6,900.00 |
| TOTAL ASSETS | 343,763.59 | 313,511.82 |
| 2. Debts and Liabilities | ||
| Mortgage | 230,000.00 | 230,000.00 |
| Credit cards | 1,175.00 | 103,137.88 |
| Credit card - Dixon Road Apartment expenses: [Applicant takes 1/3 of Respondent’s credit card debt of $154,706.82] | 51,568.94 | |
| TD Renovation Loan | 25,000.00 | 25,000.00 |
| TOTAL 2. | 307,743.94 | 358,137.88 |
| 3. Excluded Property | ||
| TOTAL 3. | 0 | 0 |
| 4. Net Family Property (Total 1 minus Totals 2 and 3) | 36,019.65 | -44,626.06 DEEMED 0 |
| 5. Equalization Payment from Applicant to the Respondent before adjustments | 18,009.83 |
APPENDIX B
Section 5 Family Law Act R.S.O. 1990, c. F.3, as am.
5 (1) When a divorce is granted or a marriage is declared a nullity, or when the 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. R.S.O. 1990, c. F.3, s. 5 (1).
Death of spouse
(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (2).
Improvident depletion of spouse’s net family property
(3) When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net family property, the other spouse may on an application under section 7 have the difference between the net family properties divided as if the spouses were separated and there were no reasonable prospect that they would resume cohabitation. R.S.O. 1990, c. F.3, s. 5 (3).
No further division
(4) After the Court has made an order for division based on subsection (3), neither spouse may make a further application under section 7 in respect of their marriage. R.S.O. 1990, c. F.3, s. 5 (4).
Idem
(5) Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract between the spouses provides otherwise. R.S.O. 1990, c. F.3, s. 5 (5).
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).
Purpose
(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).
APPENDIX C
Section 4 Family Law Act R.S.O. 1990, c. F.3, as am.
Definitions
4 (1) In this Part,
“Court” means a Court as defined in subsection 1 (1), but does not include the Ontario Court of Justice; (“tribunal”)
“matrimonial home” means a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date; (“foyer conjugal”)
“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; (“biens familiaux nets”)
“property” means any interest, present or future, vested or contingent, in real or personal property and includes,
(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,
(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and
(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date; (“bien”)
“valuation date” means the earliest of the following dates:
The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
The date a divorce is granted.
The date the marriage is declared a nullity.
The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”) R.S.O. 1990, c. F.3, s. 4 (1); 2006, c. 19, Sched. C, s. 1 (2); 2009, c. 11, s. 22 (1-4); 2009, c. 33, Sched. 2, s. 34 (1).
Net family property, liabilities
(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property. 2009, c. 33, Sched. 2, s. 34 (2).
Excluded property
(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:
Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.
Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).
Onus of proof re deductions and exclusions
(3) The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it. R.S.O. 1990, c. F.3, s. 4 (3).
Close of business
(4) When this section requires that a value be calculated as of a given date, it shall be calculated as of close of business on that date. R.S.O. 1990, c. F.3, s. 4 (4).
Net family property not to be less than zero
(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).
Section Amendments with date in force (d/m/y)
Equalization of net family properties
APPENDIX D
Subsection 2 (1) (b) Divorce Act R.S.C. 1985, C.3 (2nd Supp.), as am.
2 (1) In this Act,
child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; (enfant à charge)
APPENDIX E
Subsection 15.2 (4) – (6) Divorce Act R.S.C. 1985, C.3 (2nd Supp.), as am.
15.2 (4): In making an order under subsection (1) or an interim order under subsection (2), the Court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
the length of time the spouses cohabited;
the functions performed by each spouse during cohabitation; and
any order, agreement or arrangement relating to support of either spouse.
15.2 (5): In making an order under subsection (1) or an interim order under subsection (2), the Court shall not take into consideration any misconduct of a spouse in relation to the marriage.
15.2 (6): An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
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;
relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
1997, c. 1, s. 2.
APPENDIX F
Section 24 Family Law Act R.S.O. 1990, c. F.3, as am.
Order for possession of matrimonial home
24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the Court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the Court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,
to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the Court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).
Temporary or interim order
(2) The Court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the Court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.
Best interests of child
(4) In determining the best interests of a child, the Court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).
Offence
(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,
(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and
(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c. F.3, s. 24 (5).
Arrest without warrant
(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession. R.S.O. 1990, c. F.3, s. 24 (6).
Existing orders
(7) Subsections (5) and (6) also apply in respect of contraventions, committed on or after the 1st day of March, 1986, of orders for exclusive possession made under Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c. F.3, s. 24 (7).
APPENDIX G
Section 2 Partition Act, R.S.O. 1990, c.P.4, s.2
Who may be compelled to make partition or sale
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only. R.S.O. 1990, c.P.4, s.2
CITATION: Gamvidana v. Gamvidana, 2017 ONSC 6312
COURT FILE NO.: FS-15-83181-00
DATE: 2017 10 30
SUPERIOR COURT OF JUSTICE - ONTARIO
Karen Gamvidana
AND:
Prahbat Gamvidana
BEFORE: BARNES J.
COUNSEL: Courtney Kazembe, Counsel for the Applicant
Prahbat Gamvidana is Self-Represented
REASONS FOR DECISION
Barnes J.
DATE: October 30, 2017
[^1]: See Appendix B [^2]: See Appendix B [^3]: See Appendix C [^4]: APPENDIX C [^5]: APPENDIX B [^6]: APPENDIX B [^7]: APPENDIX B [^8]: APPENDIX C [^9]: APPENDIX D [^10]: APPENDIX E [^11]: APPENDIX G [^12]: Appendix G