Introduction

[1] These parties conducted a seven-day trial at the end of the May, 2017 trial sittings. Because they were unable to finish their trial within the last week of the sittings in Newmarket, the trial was completed in Barrie in June of 2017.

[2] Mr. Foster (“Jordan”) and Ms. Marquardt-Foster (“Christina”) began litigating this matter soon after the breakdown of their nearly 13-year marriage in July, 2013. They have a 16-year-old child named Justin who lives with Christina and her mother, Waltraud Marquardt (“Trudy”) in the matrimonial home. By consent order of Kaufman J. on February 17, 2015, Christine received sole custody of Justin subject to access to Jordan. This left only the support and property issues outstanding.

[3] Unfortunately, the parties were unable to settle these issues. Although there were paths towards settlement, the issues were complicated by several factors. Included in these factors were numerous changes in counsel by both parties, and the eventual self-representation by both parties during much of the latter part of these proceedings. That did little to permit reasonable concessions by either party. For example, Jordan refused to acknowledge any entitlement of the respondent to spousal support and Christina refused to acknowledge Jordan’s entitlement to a sale of the home notwithstanding his interest in that home as a one-third owner.

[4] Matters were further complicated by a co-tenancy agreement between the three owners of the matrimonial home. Jordan and Christina wanted to buy a “fixer-upper” in 2000, but they did not have a down payment, and eventually borrowed the money for the down payment from Trudy. Trudy was given a one-third interest in the home, and each party agreed to pay back to her their share of that down payment in the amount of $10,000 apiece. Each also agreed to pay a one third share of the ongoing costs of the home under the co-tenancy agreement which was signed prior to the purchase.

[5] When the parties separated, Jordan left Trudy and Christina in the home with the parties’ son. When he left, he stopped paying his share of the home expenses although he did pay child support. Since that time, Christina and Trudy have both resisted selling the matrimonial home. Because of her position as an owner of the home, Trudy was made a party to this proceeding by order of Bennett J. dated February 22, 2017. Trudy gave evidence of incurring substantial debt to pay the household expenses. Christina said that this was largely because Jordan refused to pay spousal support.

[6] As well, both parties alleged the other had not provided the disclosure that they were obliged to do under various court orders entered into in the course of the litigation. The trial opened with a one day long motion brought by Christina to strike Jordan’s pleadings by reason of his failure to provide court ordered disclosure. That motion took a day to argue and involved oral testimony by Christina. I dismissed the motion, and gave oral reasons for doing so.

[7] Although Jordan’s disclosure was deficient, it is apparent that neither party was particularly forthcoming with disclosure and a motion for spousal support was dismissed by Bennett J. on February 3, 2016 because of Christina’s failure to disclose. Email correspondence to Christina from her solicitor accuses her of failing to provide necessary disclosure[^1] and advises Christina that she should obtain another lawyer because of this (Christina surprisingly made this an exhibit and waived privilege respecting this letter). Kaufman J. observed at one point that neither party had any particular “regard for the legal system”[^2] and I agree with that observation.

[8] In essence, both parties provided spotty or insufficient documentation at trial and speculation was often necessary in order to make my findings in this matter; as well, neither husband nor wife were particularly credible in their evidence or compliant with court orders. In reviewing the parties’ evidence at trial, I was reminded of the manufactured dinosaur DNA in the film, Jurassic Park. It might be recalled that in that movie, when there were gaps in the dino-DNA, the DNA of frogs was used to fill the gaps. The same might apply to the evidence led by the parties. There were numerous gaps in the evidence, in particular concerning the value of assets for equalization purposes. I have had to fill those gaps in through some exercise in speculation and, as put by Ms. Marquardt-Foster in evidence, “guestimates” as to values.

[9] For the reasons set out below, I have ordered as follows:

a. There shall be an order for ongoing child support in the amount of $682 per month;

b. There are arrears of s. 7 expenses for the child in the amount of $1,072.50;

c. The parties shall each pay 50% of the expenses for the child’s activities as set out in s. 7(f) of the order of Nelson J. dated February 17, 2015;

d. There shall be an order for ongoing spousal support in the amount of $750 per month commencing the month after the closing of the sale of the home;

e. Pending the sale of the home to the date of the closing of the sale of the home, the applicant shall pay the respondents his one third share of the mortgage, utilities, taxes and insurance in respect of the home which I have quantified as $1,014.78 per month;

f. The respondent’s claim for retroactive spousal support and child support, including s. 7 expenses for the child, is dismissed;

g. There shall be an order for partition and sale of the matrimonial home with the closing of the sale of the home to take place no earlier than June 30, 2018;

h. Pending the sale of the home, Christina shall have exclusive possession of the matrimonial home, provided that she cooperate in the sale of the home;

i. There shall be an order that Christina owes Jordan an equalization payment of $2,706.62 to be set off against the amount owing by Jordan in respect of the expenses of the matrimonial home;

j. There shall be an order that, upon the closing of the sale of the home, that the net proceeds after payment of real estate commissions, encumbrances against the home and legal fees, shall be divided into one third shares in respect of each of the three co-tenants of the home.

k. From his share, Jordan shall pay Christina and Trudy the sum of $101,117.03 plus $1,014.78 per month commencing January 1, 2018 to the date of the closing of the sale of the home, being the amount owing by him under the co-tenancy agreement since he vacated the home less the following adjustments:

any funds paid by Jordan to Trudy and Christina pursuant to paragraph c above;
there shall be deducted from the share owing to Christina the equalization payment owing by her to Jordan under paragraph f above;

l. Once these amounts are paid, the parties shall each have their respective shares of the net proceeds distributed to each of them forthwith;

m. If there are any disputes as to the terms of the sale of the home or in respect of compliance with the order for sale of the home, any of the parties may bring a motion before the case management judge in this matter, being either Bennett J. or Douglas J. in Newmarket for directions, on three days’ notice.

n. The applicant’s claim for occupation rent is dismissed;

o. The respondents’ claim in debt against the applicant is dismissed.

Issues

[10] As noted above, the issues are essentially financial in nature. No financial issues were settled by the parties. The issues can therefore be summarized as follows:

a. What are the incomes of the parties?

b. What child support, including section 7 expenses, is payable by the applicant husband?

c. What equalization payment is owing by the applicant husband to the respondent wife?

d. Should there be a sale of the matrimonial home?

e. Is the applicant’s right to a sale of the home subject to the respondent’s entitlement to an order for exclusive possession of the home?

f. Are there any credits owing in respect of the matrimonial home including occupation rent or debt owing by the applicant husband to both respondents?

g. What spousal support, if any, is payable by the applicant to the respondent wife?

Discussion

Parties’ Incomes

[11] Each party requests that income be imputed to the other. Each party claims that the other has understated income or could work harder and earn more income.

[12] Jordan suggests that Christina is “intentionally under-employed or unemployed” within the meaning of s. 19(1)(a) of the Child Support Guidelines.[^3] He says that Christina has failed to capitalize on her skills or obtain employment after losing her job in 2013, and that she should not have pursued a law clerk program after that job loss and after the loss of a subsequent job at Target Canada.

[13] Christina, on the other hand, claims that Jordan has undeclared business or other income. Christina also relies upon s. 19(1)(f) of the Guidelines as she alleges that her husband has failed to provide income information when under a “legal obligation to do so”.

[14] The provisions regarding imputation of income contained within s. 19 of the Child Support Guidelines can be equally applied to imputation of income for spousal support purposes: see Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142, (Ont. Fam. Ct.) and Perino v. Perino, O.J. No. 4298 (Ont. S.C.).

[15] According to their tax returns, the incomes of the parties have fluctuated over the years. Christina says that she has been most recently unemployed because her skill set lies within textiles, a dying industry. Jordan says that he was forced to take a cut in income because he was demoted by his employer and sent to Kitchener to operate a franchise. He says he is now earning $60,000 per year, substantially less than any previous year’s income.

[16] A review of the respective income tax returns and Notices of Assessment of the parties over the past years prior to and after separation discloses the following annual incomes:

Year	Jordan	Christina
2010	$74,760	$11,226
2011	$85,821	$428[^4]
2012	$100,692	$16,717[^5]
2013	$77,746	$30,275[^6]
2014	$80,294	$18,429
2015	$78,461	$13,105
2016	$78,077	$14,636[^7]

Jordan’s Income

[17] Jordan has had a number of jobs both before and since separation. He is a carpenter by trade, but works in the disaster restoration field, restoring properties damaged by fire, flood or other similar events. He has worked in this field since before separation and for a time attempted to operate his own business in disaster restoration. That business wound up because of a partnership dispute, leaving Jordan owing a significant amount of funds to the Canada Revenue Agency. Jordan has since had a number of employers, and is presently employed by a company known as Restoration 1 Canada.

[18] Jordan has never had a year since 2010 where he made less than $74,000 per annum. He now claims that his annual income has been reduced to $60,000. He says that this occurred because he was moved to Kitchener by his employer. He says that he was demoted because business was slow, and he was spending all his time on his divorce.

[19] That was not borne out by the testimony of Eric Simtob, who owns Restoration 1 and is Jordan’s boss. Simtob testified that Jordan was an excellent employee and that the move to Kitchener was a business opportunity for Jordan to operate the franchise for that district. That franchise had been previously abandoned by the original franchisee and was losing money. Simtob said that Jordan accepted the challenge and continues to operate the Kitchener franchise, which is still owned by the original franchisee.

[20] Christina alleged that Jordan is operating a business on the side, and is earning undisclosed income from various enterprises, which includes profits from the franchise and income from writing articles for trade publications. Mr. Simtob denied this to be the case. He said that there were no bonuses paid to Jordan. Mr. Simtob also said that if Jordan worked at any sort of business outside of his employment, that he, as Jordan’s employer, would have something to say about that.

[21] The respondent wife also says that the applicant’s disclosure is incomplete and because of this, I should also be imputing income to Jordan. She requests that Jordan’s income should be fixed at $90,000 per year.

[22] I agree that there were concerns regarding disclosure by the applicant. Jordan did provide explanations as to why he did not earlier disclose certain items[^8] and was subsequently able to on fairly short notice; one such explanation which I found highly unbelievable was his assertion during the motion argued on Friday, May 19, 2017, that he was unable to obtain his notices of assessments because of a CRA garnishment; he then, somehow miraculously, obtained the assessment notices over the following weekend, claiming that his accountant was able to obtain them. One has to ask why he did not obtain the required documents from his accountant earlier?

[23] That being said, to impute income, the party claiming this must lay an evidentiary foundation for the imputation of income, failing which a finding cannot be made that income be imputed: see Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.) and Joy v. Mullins, [2010] O.J. No. 4202 (S.C.J.). I do not find that Christina has laid the evidentiary foundation for imputation of undisclosed income by the applicant. Although she says that Jordan’s disclosure is incomplete, that is not what is evident from the materials that were eventually filed by him at trial. His materials confirm his income from employment and there is little evidence that there is any income beyond that. The fact that he does not make other income is confirmed both by the evidence of Eric Simtob, which I found to be both credible and reliable, as well as the income tax returns and Notices of Assessment filed by Jordan.

[24] As the evidentiary foundation to impute income was not laid by the respondent wife, there was no further onus on the applicant to produce evidence disproving that he has business or other income. I find that any other requests for disclosure by the respondent wife are nothing other than a fishing expedition, and not borne out by the rules of proportionality or the law respecting imputation of income.

[25] I do, however, find that the applicant voluntarily reduced his employment by taking on the franchise in Kitchener. This was an opportunity provided to him by Mr. Simtob, and there was no evidence that he had to do this. Prior to the franchise opportunity offered to him by Simtob, Jordan was earning $80,000 per year at Restoration 1 and he agreed to a substantial reduction in income. [^9]

[26] Income may be imputed under s. 19(1)(a) of the Guidelines if a party is intentionally underemployed. “Intentional” under-employment does not require the support payor to have acted maliciously or with the specific intention of reducing income for support purposes; all that has to be proven is that the reduction in income came from an intentional act: see Drygala v. Pauli, [2002] O.J. 3731 (C.A.) at para. 25 et sequent.

[27] Based upon the evidence, I find that Jordan decided to reduce his employment income with a view to obtaining a franchise opportunity. He did not tell the truth when he said he was demoted because his performance had slipped because of the divorce. I also find that the truck that belongs to the business is used by Jordan for personal use,[^10] and this is a further benefit to him from his employment, even though it does not show up in his T4 slip.

[28] I therefore find that Jordan’s income for support purposes is $75,000 per year, which is much closer to what he has made historically than his present income of $60,000 per annum.

Christina’s Income

[29] Because of Christina’s claim for spousal support, I need to determine Christina’s income for support purposes.

[30] The evidence shows that Christina’s income has been decreasing substantially over the years since separation. The reason Christina gave for this was that her chosen career, sewing, textiles and uniforms, is a dying industry which is shrinking as cheaper imports compete with more expensive Canadian producers.

[31] Christina was extremely critical of Jordan’s disclosure, alleging that he had undisclosed business income which he was concealing from the court. She was also critical of how Jordan ran his business and the fact that his books were not kept well resulting in an eventual tax liability. This did not lie well coming from Christina considering the way that she had treated her own business income in 2011 to 2013, years during which she operated a business called Aurora Uniforms. In 2011 and 2012, she had gross business income of between $47,000 and over $51,000 combined with substantial business losses. It was apparent from her cross examination that she had written off numerous personal expenses against her own business income, thereby creating those losses. In that cross examination, she was evasive and untruthful, and her credibility as a witness was questionable as a result. She claimed that expenses at places such as McDonalds, Little Caesars Pizza, M & M Meats and SportChek were business expenses; she could not explain exactly how, especially when at least one meal expense was incurred at a restaurant down the street from the matrimonial home. She also could not explain how dentistry expenses and costs of health food, also written off against business income, were legitimate business expenses for a uniforms business.

[32] However, apart from the effect that this had on her credibility, these issues are largely irrelevant to her present income. That is because the evidence was clear that Aurora Uniforms is no longer in operation. In 2011, Christina obtained employment at Top Marks, a Montreal based uniform company. She says that in June, 2013, she was forced to give up her patterns and customers to Top Marks, after which the company terminated her in September of that year. Christina sued them for wrongful dismissal, and obtained a revised Record of Employment indicating that she was not fired, allowing her to claim Employment Insurance.

[33] Again, I have serious concerns about the respondent wife’s credibility, considering the fact that her evidence was inconsistent, in particular as to when Aurora Uniforms exactly went out of business. However, it is apparent that Aurora Uniforms is no more, and that Christina’s employment with Top Marks also came to an end. After a short stint at Target which started in October, 2014 (and we know what happened to that company), Christina began receiving EI. She is now retraining through Employment Canada as a paralegal at Seneca College and her income is from Employment Insurance, presently in the range of about $14,000 per annum.

[34] As I have found with with him, Jordan urges me to find that Christina is intentionally underemployed. He suggests that Christina’s retraining is actually a decision to avoid employment in her former occupation. He also suggests that Christina’s job search was inadequate and that she could have found a similar position to that which she had with Top Marks.

[35] I disagree. Even though I had problems with Christina’s credibility as a witness, the real issue is whether Jordan established through his cross examination of Christina, an evidentiary foundation showing that income should be imputed to her. I do not think that he has. In analyzing a party’s actions, it must be assumed that a party will take rational steps to improve their situation, and it would not have been rational for Christina to take a job at Target had there been career opportunities in the uniforms or textiles field in which she had expertise. No reason was established why Christina would have wanted to leave that field other than the lack of career opportunities. She still has the equipment with which she operated Aurora Uniforms. Under the circumstances, I do not find that the sequence of events leading up to Christina’s reliance on Employment Insurance establishes intentional underemployment of this individual. It has not been proven that there were alternative business opportunities in textiles which would have resulted in an income greater than that presently made by her.

[36] I therefore find that Christina’s income for support purposes is presently as stated, in the range of between $14,000 and $15,000 per annum. However, based upon Christina’s evidence, she will be obtaining her certificate as a law clerk this spring, and she expects that the entry level income as a law clerk is between $20,000 and $30,000 per annum. She testified that her income will rise in the next three years to about $50,000 per year. I take this into account in setting the spousal support amount in this matter.

Child Support

[37] There is one child of the marriage, and I have found Jordan’s annual income to be $75,000 for support purposes.

[38] Final child support is payable by the applicant to the respondent wife in the amount of $682 per month commencing November 1, 2017.

[39] Regarding retroactive child support, Jordan testified that he had been paying $724 per month in 2015 based upon income of $80,000 per year. He testified that he had been paying this voluntarily, and then pursuant to a court order. No order for child support appears on the record and neither party saw fit to provide me with a copy of a child support order. It was also unclear as to when he began paying this child support; Christina testified that child support was up to date and there were no arrears, although it was being paid late.

[40] I therefore find that there are no arrears of base child support.

[41] Christina also claims 50% of special expenses under s. 7 of the Child Support Guidelines. In her submissions, she requested that the obligation to pay special expenses be extended to post-secondary educational expenses including the RESP that she is accumulating for the child. Unfortunately, I was unable to find any order that dealt with payment of the child’s s. 7 expenses other than one temporary order addressing Justin’s 2014 summer camp expenses.[^11] Again, neither party referred me to any other order, temporary or final, addressing s. 7 expenses of Jordan. Although both parties thought that the final custody order of February 17, 2015 provided that the applicant would pay 50% of the child’s summer camp and hockey expenses, a review of that order confirms that it only addresses Justin’s activities, and not payment for those activities.

[42] Jordan testified as to the cell phone expenses and the orthodontic expenses which he said were paid by the parties equally. That was not denied by Christina, who suggested however that Jordan refused to pay for hockey and baseball in 2014 and 2015, and provided a demand letter dated February 2, 2017 for $1,072.50 for these expenses. In cross examination, Jordan admitted to not having paid these expenses, because he had not received “paid receipts” for these expenses. He alleged that the registration fees were waived and the receipts were just for tax purposes; no evidence was provided for this other than Jordan’s statement on the witness stand.

[43] I find that Jordan owes Christina $1,072.50 for the hockey and baseball expenses.

[44] I also find that Christina has not proven any other arrears of s. 7 expenses to the date of trial. I therefore find that there are no further arrears of s. 7 expenses.

[45] There shall be an order that Jordan pay 50% of the expenses for the activities set out in paragraph 7(f) of the order of Nelson J. dated February 17, 2015.

[46] I am not going to order Jordan to pay for a proportionate or equal share of post-secondary expenses or towards contributions to the RESP. That is premature, especially in light of the evidence that Justin was intent upon pursuing a trade and apprenticeship program through high school, and did not intend upon attending a post-secondary institution after high school.

Equalization of Property

[47] I have attached a net family property statement to this judgment as Schedule A.

[48] In determining the parties’ net family property, I had some difficulty in making findings as to the ownership and value of assets. This was largely due to the fact that the parties failed to provide clear evidence of what assets they each owned, and the values of those assets. Other than the matrimonial home, there was little evidence of value of any of the assets including the personal property owned by the parties on the date of separation. The parties were unrepresented, and did their best, which at times was not very good. I have had to be arbitrary at times, and when I was, I note it below.

[49] The amounts set out in the net family property statement are based upon the following findings:

Matrimonial Home

[50] The appraisal report of Marie Garbens dated April 21, 2017[^12] states that the value of the home on the date of separation was between $560,000 and $570,000. Although Christina says that the appraiser was not aware of damage and repairs needed for the property, a review of the appraisal shows that the appraiser was aware of the flood damage in the basement (she notes that the basement ensuite was “non-functional”) as well as water damage around a bedroom window and “spalding” (sic.) bricks on the garage. Neither party insisted upon the appraiser being present at trial for cross examination. I find that the appraisal is accurate according to its terms, and that the value of the property on V-day is $565,000. The parties are one-third owners of the property and the value of each of their respective interests is therefore $188,333.

Household Contents

[51] The respondent gave evidence that the applicant took most of the household contents that had value on the date of separation. She claims in her net family property statement that the applicant took $8,000 worth of household contents, leaving her with $2,000 worth of contents.

[52] In their evidence, neither party bothered to provide a list of household contents or of any sort of valuation of the contents remaining in the home on the date of separation, or of the contents taken by the applicant when he moved out.

[53] The respondent provided in evidence a number of photographs[^13] purporting to show items removed from the home by the respondent. She provided no list of items that she said were removed other than what she spoke of in her evidence and in cross examination, she admitted that a majority of the items taken by the applicant were either purchased in 1998 (making them 15 years old on the date of separation) or were purchased from the applicant’s inheritance (which would exclude them from equalization under s. 4(2) of the Family Law Act[^14]).

[54] Christina also took the position that many of the assets were hers and should be returned to her. She was unable to provide any evidentiary foundation for this other than the fact that the items were “bought together”.

[55] Based upon the lack of specificity of the respondent’s evidence concerning the household contents, I decline to find that the applicant took more than his equal share of the household contents when he moved out of the home in July, 2013.

[56] Because I have no evidence from either party as to the value of the household contents, and because it was obvious from the photographs that many of the items dated from prior to marriage, I find, somewhat arbitrarily, that each party had, as of the date of separation, $2,000 in household contents.

Vehicles and Boat

[57] Neither party provided valuations of their vehicles as of the date of separation or of the boat. Neither party produced a Used Vehicle Package for the cars that they owned on V-day.

[58] On the date of separation, Christina was driving a 2001 Pontiac Montana. Jordan acknowledged that this vehicle was “worth nothing much” on the date of separation. According to Christina, the vehicle was not worth anything as a trade in and now has nearly 400,000 kilometres on it. She has, however, been able to use it for the four years since the parties separated and it still runs. It had to have had some worth and I attribute a value of $1,000 to the Montana.

[59] The vehicle owned by the applicant was not worth much more; at separation, he was driving a 2005 Ford F150 pickup truck. Jordan gave a value of $3,500 for this vehicle; he says he got that figure from the Auto Trader but provided no written evidence of that value. Christina says it was worth $8,000 but did not cross examine Jordan on that issue or provide her own valuation. The best evidence I have is that of Jordan that the F150 was worth $3,500 on the date of separation.

[60] Jordan owns a Thundercraft boat and trailer that he purchased in 2002 for $22,000. Again, he asserts that it was worth $8,000 on the date of separation but did not say how he came to that value.[^15] The respondent says that the boat and trailer were worth $9,000 and that she got this value from Auto Trader and the marina. No valuation was filed, although the boat continues to be insured for $22,500. I find that the most reasonable value for the boat is that submitted by the respondent, who at least had some source for the value. I therefore find that the Thundercraft boat and trailer was worth $9,000 on the date of separation.

[61] Christina suggests that I add another $2,500 for the dinghy, boat furniture, batteries and other equipment for the boat. I would have thought that this was included in the value of the boat, as these items are generally accessories to a boat and would be sold along with it. There is no basis for adding these items to the value of the boat, and Christina offered no evidence that these items increased the value of the boat beyond its base value. There shall be no value attributed to boat accessories in addition to the value of the boat.

[62] Jordan also removed from the home two dirt bikes that he purchased through a large tax rebate that he received in April, 2012.[^16] These motorcycles were purchased for Jordan and his son, and they use them together. They were bought by Jordan along with a trailer for a total cost of $10,805.[^17] Jordan says one of them belongs to his son; even accepting that, he gave no value in evidence of what his dirt bike and the trailer was worth on the date of separation.

[63] It is up to the party owning the asset to properly value that asset. Jordan provided no evidence of the value of the dirt bike he owns along with the trailer. Based upon the fact that the dirt bikes were purchased a year prior to separation for between $4,140 and $4,250, I have, again somewhat arbitrarily, deducted 20% for one years’ depreciation of the value of one of the the dirt bikes and the trailer to come to a value of $5,292 for equalization purposes.[^18] I decline to attribute the value of both dirt bikes to Jordan as he testified that one of them belongs to his son.

Other Miscellaneous Chattels

[64] These other chattels comprise jewellery, a drum set, a keyboard and tools owned by each of the parties.

Gucci Watch

[65] Christina says that she owns a Gucci watch that remains with her. She says she tried to pawn if for $200, but acknowledges that it is worth $400. That value appears to be acceptable to Jordan.

Musical Instruments

[66] Jordan owns a drum set. In her net family property statement,[^19] Christina says it is worth $900, but in evidence she said that, based on Kijiji, the value is actually $500. Jordan did not differ with this amount.

[67] Jordan also has a keyboard. He did not acknowledge this asset in his latest financial statement filed for trial.[^20] Christina says it belongs to her and should be returned, but she also says that it was given to Jordan by his parents for doing a job for them which would make it Jordan’s property. She says it is worth $2,000 but she does not advise how she arrived at this value. If the keyboard does, indeed, belong to Jordan, he should have valued it; however, Christina never put the ownership of this asset or its value to Jordan during cross examination and he never had an opportunity to testify as to whether it belonged to him or as to its value.[^21] The evidence is just too unclear as to whether it should be included in his net family property.

Miscellaneous Hobby Equipment Owned by Jordan

[68] Christina says that Jordan owns property which was together worth $7,000. She includes in this his fishing rod which he bought in 2000 for $1,000, which made it 13 years old on the date of separation. She includes as well hockey equipment, several gaming systems for the child, two remote control cars and golf clubs.

[69] Christina admits that she could not provide an accurate value for these items, and called her value of $7,000 a “guestimate” when she gave evidence. She acknowledged in evidence that a number of these items belonged to their child, Justin. Christina acknowledged in cross examination that the gaming systems taken were the older generation, and the newer generation gaming systems were left in the home.

[70] I will attribute some value to these items, but not the $7,000 suggested by the applicant. Again, somewhat arbitrarily, I find these items to be worth $2,500.

Engagement Ring

[71] Christina has an engagement ring. It was insured for $14,000 which I assume to be replacement value. However, she testified that she recently pawned the ring for $2,500, but put a value of $4,500 in her net family property statement. I find this to be a more accurate value of the ring.

[72] I note that the respondent says that the purchase amount of the ring was borrowed from her life insurance policy. She has not included this as a debt in her net family property statement or in her financial statement filed for trial.[^22] I do not take this debt into account in determining the parties’ net family property and I have also not inserted the value of the ring on the date of marriage, as there was a corresponding debt on the date of marriage for its value.

Applicant’s Tools

[73] Finally, there are the applicant’s tools. He has provided a list and estimated values of those tools.[^23] That list says that his tools had a total value of $1,200 although this is his estimate, and not an appraisal.

[74] That is a far cry from the allegation of the respondent that the tools had a $10,000 value. She says there are tools left off of the list including a generator and heaters; the applicant suggested in submissions that some of the tools belonged to his employer.

[75] According to the list, the tools were all purchased between 1999 and 2008 with the majority being purchased between 2000 and 2001. These tools would have depreciated with use and time. However, for a full set of carpentry tools, considering Jordan’s profession, I find $1,200 to be too low an estimate. I find that Jordan’s tools were worth $2,500 on the date of separation.

[76] Christina also had tools, four sewing machines, which she used in her business. She acknowledged in evidence that these sewing machines were worth $2,000. That would be included in the value of Aurora Uniforms to be discussed under business interests below.

Bank Accounts

[77] The parties had a joint chequing account at Scotiabank on the date of separation (Account no. 82362 00150 83) which was overdrawn on V-day in the amount of $2,239.74.[^24] On the valuation day, this amount is therefore inserted as a negative amount of $1,121.64 each.

[78] Christina said in argument that this account is now overdrawn by over $4,000 and that Jordan was responsible for any overdraft beyond the original $2,239.74 on the date of separation. She gave no evidence of this, or as to how and when Jordan had overdrawn this account after separation. I therefore dismiss any claim for reimbursement respecting this joint account.

[79] Christina provided evidence in her financial statement in respect of other small accounts that were not joint, but which existed on the date of separation. Jordan did not comment on these other accounts. I have inserted these other bank accounts in the net family statement attached to this decision.

[80] Finally, the respondent inserted in her net family property statement a $1,100 overdraft on the date of separation concerning her account at RBC (account no. 3996000759). This appears to be in error as this overdraft appears in her financial statement as being outstanding when the financial statement was sworn, but not on the date of separation.[^25] Christina did not prove this overdraft on the date of separation and it is excluded for the purposes of determining the parties’ net family property.

Life Insurance

[81] Christina testified that she did not have a whole life policy. In fact, the documentary evidence provided at trial indicated otherwise. She filed a policy statement from London Life[^26] which indicated that she had an account with a cash surrender value of $461.53 taking into account the loan on the policy of $8,679.05. However, she had also testified that she borrowed on the policy prior to the date of separation to purchase her wedding ring. Because I have no date of marriage value for this asset, I have chosen to ignore this policy or its value for equalization purposes.

Business Interests

[82] The only business that was owned by anyone on the date of separation was the respondent’s business, Aurora Uniforms. Although Christina said that she was forced to give up her patterns and clients to her employer in June, 2013, prior to separation, she continued to earn income from Aurora Uniforms well after that date up to November, 2013. She did not value the patterns and goodwill that she gave up; neither, I believe was she asked to do so. The value to the business at the date of separation is the equipment and the assets of the business, less any loans on the date of separation.

[83] Christina gave evidence that she had equipment for the business worth $2,000, which was four sewing machines. She said she used her son’s laptop to do her accounting. She had $361.20 in the business bank account on the date of separation and the total assets of the business were therefore $2,361.20.

[84] Deducted from this is the revolving line of credit which was paid off in June, 2014.[^27] Christina gave evidence that there was about $1,000 outstanding on this revolving line of credit on the date of separation. This means that the net value of Aurora Uniforms on V-day for equalization purposes was $1,361.20.[^28]

Debts and Liabilities

Mortgages

[85] The parties had registered two mortgages on the home by the time they separated. Each was liable for a one third amount of these mortgages as of the date of separation.

[86] The first mortgage was in favour of Scotiabank and as of July 31, 2013, there was apparently outstanding on that mortgage $144,732.[^29] Based on a one third ownership to each of these parties, this would work out to $48,244 owing by each party.

[87] The second mortgage was taken out to consolidate credit card debt and is in favour of Home Trust. There was evidence that the amount outstanding under that mortgage on V-day was $79,900.[^30] Again, based on the parties each having a one third ownership, Christina and Jordan would each owe $26,633.33 on the second mortgage.

Debt of $50,000 Owing to Trudy

[88] Christina claims that she and Jordan owe her mother $50,000, being money advanced by Trudy to the parties between 2007 and 2009 when the parties were both self-employed.

[89] That loan is undocumented and neither of these parties signed a promissory note or any other documentation evidencing this debt. No one kept track of what exactly was advanced by Trudy to the applicant and the respondent, and Trudy admitted that she did not know exactly how much was advanced by her. She said that the funds came from her line of credit, which she said now had a balance owing of $62,000.

[90] All that Christina could provide to the court was a series of cheques payable to her totalling $13,800.[^31] These funds were advanced to her between January 5 and April 3 of 2007. Trudy said in her evidence that Jordan and Christina owed her “around $50,000” but that Christina had kept track of the advances. Christina also claimed that the debt was $50,000, but was not able to prove any advances other than the $13,800 evidenced by the cheques; she had no notes or records showing what was advanced to her by her mother or when any of these advances were actually made.

[91] This debt and the advances under it have therefore not been proven; the only advances proven were the cheques noted above and no one kept track of the other alleged advances or were able to prove any funds being advanced totalling $50,000. There was no documentary evidence of the loan. There was no evidence tying Jordan to this debt; Trudy acknowledged that she had not had any dealings with Jordan and that all of the payments were to her daughter, Christina. There was no evidence that Jordan was aware of the debt or agreed to any terms of repayment, and the debt is completely undocumented. The debt has not been proven on the balance of probabilities, and I do not find that these advances were intended to comprise an enforceable obligation against either of these parties. At most, Trudy and Christina have proven an advance by Trudy to Christina of $13,800 as evidenced by the cheques.

[92] As well, even if the debt was proven, it was, on the date of separation, unenforceable as the last advances to Christina had been made in 2009, and no claim to enforce the debt had been made within two years of the date of the last advance, which means that the debt was statute barred: see the Limitations Act, 2002,[^32] s. 4 which requires a claim to be made within two years of the discovery of the claim. If there was truly a debt, then it was known of when the last advance was made, and there was no evidence of any payments being made by either party to Trudy in respect of this debt. There was no evidence of any terms of payment or that this was a demand obligation. The claim for this debt had therefore accrued on the date of the last advance, and there is no evidence of any separate acknowledgment of this debt which might have extended the limitation period: see the Limitations Act, 2002, s.13(1). As this was an unenforceable obligation on V-day, it was not a debt which can act as a deduction from either parties’ net family property under ss. 4 and 5 of the FLA. And it is certainly equally unenforceable when Trudy issued her answer making the debt claim in April of 2017, the first time that this claim was made in the litigation and eight years after the last advance.

Debt of $50,000 Owing to Members of Christina’s and Trudy’s Family

[93] Christina inserted a “Loan from Relatives” of $50,000 as a debt in her net family property statement. She says that this amount was borrowed from relatives and friends and was joint with her mother. Trudy also testified that she and Christina had borrowed $45,000 from friends and relatives.

[94] If this debt was $50,000 in total and joint, then the amount that should have been inserted in the net family property statement should have been Christina’s share, which was $25,000.

[95] Again, as with the funds supposedly advanced by Trudy to Christina, there is an issue with proving this debt. Christina said during her testimony that there were promissory notes which proved the debt. These were not produced at trial. No other documentary evidence was provided to the court to prove this debt.

[96] I am also suspicious that this debt has arisen since separation, which would mean that it does not factor into the equalization as it had to have been outstanding on the date of separation to be deducted from the respondent’s net family property. In her net family property statement, Christina says that the debt was for “living needs/costs and lawyer costs” and there would have been no “lawyer costs” until after separation. There was no evidence of this debt having been incurred during cohabitation, as both parties were working, and the expenses of the home were being paid; it was only after separation that the mortgage went into default as well as problems with Christina and Trudy meeting their obligations. In her opening submissions, Christina said that Jordan had a “stranglehold” on her household since 2013 and that, because of this, she and her mother had to “borrow money from relatives.” Although this is not evidence, it is an acknowledgement as to when this debt was actually incurred. Finally, in her own financial statement,[^33] Christina acknowledges that this debt was incurred after separation.

[97] I therefore disallow this debt for equalization purposes.

Telus Mobility

[98] Jordan seeks to deduct a Telus Mobility bill that he says was in the amount of $3,255. He says that he incurred this bill when he was self-employed and he admits that he does not have a receipt for this bill.

[99] Apart from his inability to prove this debt, Jordan’s self-employment came to an end in 2009 and the Telus debt was incurred prior to that date. As with the debt purportedly owing to Trudy, the debt was statute barred on V-day because of the expiry of the two year limitations period in 2011. The Telus bill was therefore unenforceable on the date of separation, and is not deductible for equalization purposes.

[100] I therefore disallow the Telus bill for equalization purposes.

Crates Marine

[101] Jordan filed a Statement from Crates Lagoon City Marina indicating that, on the date of separation, he owed $3,601.92 for dockage and storage.[^34] Although the invoice appears to be for dockage to April 30, 2014, the debt came due prior to the 2013-2014 boating season.

[102] This debt shall be deducted from the applicant’s net family property for equalization purposes.

CRA Debt

[103] As a result of his self-employment, the applicant was audited by the Canada Revenue Agency in 2012. He ended up with a debt to CRA in the amount of $23,061.29.[^35]

[104] By the date of separation, this debt had been reduced to $19,621.82.[^36] That debt is allowed for equalization purposes.

Sylvan Learning Centre

[105] Justin has a learning disability. He went to the Sylvan Learning Centre. As with numerous other accounts, the applicant and the respondent were delinquent in paying this creditor.

[106] On the date of separation, Sylvan was owed $1,880.04.[^37] According to the Account History, the account holder, and the “Responsible Person” for this debt was Christina and this debt shall be placed on her side of the ledger for equalization purposes.

Rogers Cell Phone

[107] In his financial statement, Jordan claimed a $900 debt for the family “Rogers cell phone bill at the time of separation.” He did not testify as to the amount of this account during the trial and only referred to it in passing. In fact, Christina said that she was told where Jordan was living after separation when she went in to pay the bill. Neither party filed a statement showing the amount owing on the date of separation.

[108] This debt remains unproven and the evidence about the account was insufficient to equalize this debt in favour of either party.

Conclusion

[109] Based upon the net family property statement incorporating these figures and attached as Schedule A, here is therefore a small equalization payment owing by Christina to Jordan in the amount of $2,705.62. That amount shall be set off as against the applicant’s debt owing in respect of the costs of the matrimonial home as discussed below.

Matrimonial Home

[110] This was one of the more intractable issues between these parties which proved to be incapable of settlement. Jordan wants the matrimonial home sold, and because of this, he refused to cooperate in any issue concerning the home since separation. He refused to sign any renewals of the mortgage, and he refused approaches to consolidate the two mortgages presently on the home. He has paid nothing towards the expenses of the home since separation which perhaps resulted in a default on the first mortgage which caused foreclosure proceedings which were subsequently redeemed.

[111] Christina and Trudy, on the other hand, say that Jordan is not entitled to a sale of the home. They are not clear as to whether this is a “forever” position, or whether a sale could eventually occur, but Christina seemed to be saying that Jordan breached the co-tenancy agreement on the home and left the home with no good reason, and therefore forfeited his right to his equity in the home. She cited no law in support of this position.

[112] Christina further claims exclusive possession of the home. She notes that the home is close to Justin’s school and that this is the only home that Justin has known. She says that the relationship between her and Jordan was abusive, and this was confirmed by Trudy’s evidence about what went on in the home after separation. She says that, if a sale occurs, it should be delayed until Justin’s schooling is at an end.

[113] Finally, there is also a question of what Jordan owes under a co-tenancy agreement entered into by the three owners of the home prior to the purchase of the home.[^38] As I understand it, Jordan says that if he owes anything under that agreement, occupation rent accruing since separation should be set off against that amount.[^39]

Sale of Home

[114] Jordan is a one-third joint tenant of the matrimonial home along with Christina and Trudy. These parties confirmed this ownership interest in a co-tenancy agreement signed on September 24, 1998, prior to the purchase of the home. In that agreement both Christina and Jordan agreed to repay Trudy one third of the down payment that she had provided in order to purchase the home; it was common ground that Jordan had repaid his $10,000 share of the down payment from an inheritance.

[115] There is no restriction on the sale of the property contained in the co-tenancy agreement.[^40] Jordan wants his equity out of the home. This has become more important to him because of the recent spike in home prices; the home was appraised as of April, 2017 as being worth $975,000 to $995,000. At this time, it appears that each party has substantial equity in the home.

[116] The sale of the home is permitted home under s. 3 of the Partition Act[^41] which read as follows:

(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

[117] The presumption is that an owner is entitled to obtain his equity from the home unless the party resisting the sale can prove malicious, vexatious or oppressive conduct: see the judgment of the Court of Appeal in Latcham v. Latcham (2002), 2002 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:

That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner's prima facie right to partition.

[118] Although Latcham considered the criteria for sale of the home on a motion prior to trial, the discretion to refuse partition and sale is even less at trial, when the court can review the evidence in its totality, unlike a motion where there are conflicting affidavits and no way to test credibility.

[119] It is to be noted that partition and sale will not be ordered where there would be little point in a sale of the home, such as a situation where the party requesting sale will not clear any net proceeds because of what he might owe the other parties: see Mudronja v. Mudronja, 2012 ONSC 2655 and Lowe v. Lowe, 2014 ONSC 6097 (S.C.J.). However, that is not the case here; based upon the appraisal of the property, and based upon the mortgage balances that were cited to me,[^42] each party has approximately $260,000 in equity in the home, which is well in excess of what Jordan might owe Christina and Trudy.

[120] Although Christina complains that the appraisal was inaccurate, I have already found that the appraisal is the best evidence as to the present and V-day value of the matrimonial home.

[121] Christina says that Jordan has no right to a sale of the home, because he abandoned the matrimonial home without good excuse at separation. That is unsupported by the case law, and is, in itself, not a bar to selling the home. It is preposterous to suggest that any party who leaves the matrimonial home is disentitled from requesting a sale of the home. And to prevent a sale of the property would leave Mr. Foster indefinitely liable on the mortgages on the property, which means that he would be unable to move on with his life or obtain financing for another home in which to live. That prevents the parties from severing their financial relationship, which is in no one’s best interests.

[122] Christina also says that Jordan should not be permitted an order for the sale of the home because he is in breach of the co-tenancy agreement insofar as he has failed to pay his one third share of the costs of the home as required by that agreement. It is correct that, since separation, Jordan has been in default of his obligations under that agreement and he will have to eventually pay both Christina and Trudy what he owes them. That is, however, a question of an accounting between the parties, and is not a basis, at law, to bar a sale of the property.

[123] There may be an argument that Jordan indulged in oppressive behaviour which may affect his right to a sale of the property. He refused to sign mortgage renewals, to consolidate the two mortgages or to pay the monies that he should have paid under the agreement. However, I do not find this to be oppressive or malicious conduct; Jordan was entitled to refuse to become involved in a refinancing of the home, especially when he was consistent in requesting a sale of the property throughout. The respondents’ refusal to list the home after the breakdown of the marriage, considering the difficulties they had in meeting the expenses of the home, was most probably unreasonable. I do not find that Jordan’s behaviour was oppressive or financially abusive.

[124] The economic factors also favour a sale of the home. Although Trudy and Christina both felt that they would be left with nowhere to go, they will end up with a substantial amount of funds to invest in a new property which may be more modest in nature. The evidence was that the respondents were unable to meet the obligations connected with this property; they defaulted in paying the first mortgage, and have had to borrow substantial sums of money from relatives to pay the ongoing expenses of the home. There appears to be a failure by both respondents to recognize that the retention of the home is, in fact, destructive to them and beyond their means. Past case law has held that the economic factors in selling the home override other, more emotional, factors: see Re Cipens and Cipens (1978), 1978 1412 (ON SC), 21 O.R. (2d) 134 (U.FC.)

[125] I am therefore ordering a sale of the home, subject to the issue of exclusive possession and Justin’s best interests.

Exclusive Possession

[126] Christina says that, even if a sale of the home is ordered, it should be subject to Justin’s best interests, which would only be served by an order for exclusive possession of the home. She notes that Justin has lived in the matrimonial home all of his life, and it is close to the school, his work and his friends. She says that Justin would be harmed by an order for immediate sale of the home.

[127] The basis for an order for exclusive possession is contained in s. 24 of the FLA:

(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;

(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;

(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.

[128] I am satisfied that it would be in Justin’s best interests that he remain in the home. Justin is 16 and is now in Grade 11. He has only lived in this home and has friends in the neighbourhood. He has an Individual Education Plan through his school; he suffers from ADHD and does poorly in math. He wishes to enter into a trade and wants to leave high school moving directly into an apprenticeship. He has accommodations at his school which have shortened his tests and which will, hopefully, allow him to achieve his goal. The evidence is that it is unlikely that Justin will be in any sort of post-secondary education.

[129] There was also evidence that Justin is well adjusted; in cross examination, Christina admitted that he was a “free spirit” and fairly independent. He has a part time job and friends in the neighbourhood. He appears to have weathered the separation well.

[130] Regarding the other criteria in s. 24(3) of the FLA, there is no evidence that Christina needs the protection from Jordan that an exclusive possession order would warrant: although Christina said that Justin was abusive during the marriage, there is no history since separation of harassment or of domestic violence. There is no need for protection on an ongoing basis.

[131] There was no evidence that there is no other suitable and affordable accommodation in the vicinity; when I asked Christina if she had looked to see if there was other housing available nearby, she responded that she had not looked for alternative accommodation and did not know whether there was other housing that was affordable to her in the area.

[132] Regarding the financial position of the spouses, Christina and Trudy both say that they would not have the funds available to pay for a move or first and last months’ rent. However, if the home is sold, there is evidence that there will be a substantial payout to all of the parties upon the sale closing.

[133] Finally, Justin will be 18 years old in July, 2019, when he finishes high school. As noted, he will probably not be attending any sort of post-secondary education.

[134] An order for permanent exclusive possession is therefore not warranted. Justin will be an adult soon, and although it would be ideal for him to remain in the home, it appears that this home is a financial strain upon both Trudy and Christina; even if Jordan had paid the amounts that he should have under the co-tenancy agreement, it is questionable whether this would have prevented the financial issues that have occurred since separation. These financial issues appear to have arisen because of Christina’s job losses which have sharply reduced her own income. A permanent order for exclusive possession will only serve to continue the financial strain which must be pervasive within that household. I do not believe that to be in Justin’s best interests even if the home is ideally located for Justin’s attendance at school. And I have no evidence that there is not alternative accommodations within the school catchment area which would permit Justin to continue to attend at that school

[135] Justin is now in grade 11 and I am willing to delay the closing of the sale of the home until June of 2018 to allow him to finish this school year while living in the home. In my view, it would be less disruptive to him to remain in the home for this school year. During this time, and pending the sale of the home, Christina will continue to have exclusive possession of the home.

Amounts Due Pursuant to Co-Tenancy Agreement and Occupation Rent

[136] Under the co-tenancy agreement, each party was obligated to “contribute equally for the payment of all monies owing for mortgage payments, realty taxes, insurance, utilities, and expenses incurred for the general maintenance of the Lands”. It is common ground that the applicant has paid nothing towards this obligation since leaving the home in July, 2013.

[137] To obtain an idea of what the applicant might owe both Christina and Trudy for his third of the expenses under this agreement, Christina filed as an exhibit an incomplete affidavit sworn August 27, 2015[^43] which outlines what she says was owing by Jordan between the date of separation and the date of the affidavit. Christina also filed a spreadsheet which she says reflects Jordan’s share of the household expenses.[^44] To the end of December, 2017, Christina says that Jordan owes the following:

a. Property taxes $4,488.99

b. Second mortgage payments $12.500.00

c. First mortgage payments $38,461.01

d. Home Insurance $3,684.00

e. Total $105,606.02

[138] Jordan did not cross examine Christine regarding these figures. However, I will not include the property taxes in the total because Christina gave evidence that the tax payments have always been included in the bi-weekly mortgage payment, and the payment has been the same since May, 2014. Taxes are therefore paid through the mortgage and included in the amount for first mortgage payments in the list above. Therefore, if Jordan paid for the taxes, Christina would receive double compensation for the taxes: the amount owing to the end of December, 2017 is therefore reduced to $101,117.03.

[139] I note that Christina and Trudy had paid bi-weekly on the first mortgage which has paid it down quickly; according to the spreadsheet, the first mortgage will have been reduced by over $60,000 since separation. Although this increases Jordan’s monthly liability, he only has himself to blame as he refused to cooperate in the renewal of the mortgage, and could have requested the payments be reduced to monthly payments at a reduced interest rate. As well, he receives a benefit as his equity has increased substantially as a result of the increased payments.

[140] Jordan says that he is owed occupation rent to be set off at this amount. He estimates, without providing independent evidence, that the current rental amounts for homes in the neighbourhood is $2,500 per month[^45] and presumably he is owed one third of that amount, or $833.33 per month since separation.

[141] Occupation rent may be ordered under both s. 122 of the Courts of Justice Act[^46] as well as s. 24(1)(c) of the FLA. As stated by Allen J. in Chowdhury v. Chowdhury, 2010 ONSC 781 [at para. 107], “Where the occupying spouse seeks contribution for expenses associated with the carrying charges for the home such as mortgage and insurance payments, taxes, utilities and maintenance costs, the non-occupying spouse may counter claim for occupation rent. [Stone v. Stone, 2001 24110 (ON CA), [2001] O.J. No. 3282 (Ont. C.A.)].” As Jordan is a one third owner of the property, he could be entitled to one third of the fair market rental of the property which he says should be set off against the money he owes under the co-tenancy agreement which he says, as set out above, is $833.33 per month.

[142] Allen J. also notes in Chowdhury that the courts “have not routinely ordered occupation rent” and that the discretion to order occupation rent should be exercised “with caution”. He sets out a number of criteria for the ordering of occupation rent which include the following;

a. When the claim for occupation rent was first raised;

b. Duration of the occupancy;

c. The inability of the non-occupying spouse to access his equity in the property;

d. Other competing claims for adjustment or compensation;

e. The conduct of the non-occupying spouse, including his or her payment of support;

f. Whether the non-occupying spouse moved for sale of the home, and if not, why not;

g. Whether the occupying spouse paid the mortgage and the expenses of the home;

h. Whether the children resided with the occupying spouse and whether the non-occupying spouse paid child support;

i. Whether the occupying spouse improved the value of the home.

[143] In addition, many courts have also reviewed the issue of why the non-occupying spouse left the home and whether he or she did so voluntarily or whether he or she had no choice but to leave. In other words, was the non-occupying party “ousted” from the home and prevented from re-occupation? See Matheieson v. Ostrowski, 2011 ONSC 1031 (S.C.J.) as varied by 2013 ONSC 1984 (Div. Ct.).

[144] In the present case, the respondent gave evidence as to the circumstances under which the applicant left the home. She said that he had no reason to leave, although Trudy gave evidence that he probably should have left considering the abuse that she witnessed during cohabitation. The applicant agrees that he left the home voluntarily and was not forced to leave; it was his decision to end the marriage which he announced to the respondent on July 4, 2013 and he removed his items from the home at the end of the month while the respondent was at work. He was not forced to leave and in fact had occupied separate quarters in the matrimonial home for some time prior to separation.

[145] As well, the applicant did not take steps through the legal process to effect a sale of the home; no motion was for partition and sale is reflected on the continuing record. Instead, he fought a guerilla war by refusing to participate in mortgage renewals or to reduce the debt repayment load by consolidating the two mortgages on the home. He refused to pay his share of the costs of the home notwithstanding an agreement to the contrary. His lack of cooperation with the two respondents was his method of forcing a sale of the home rather than bringing a motion in court to force a sale of the property. Although I have already stated above that this was not “malicious, vexatious or oppressive conduct” for the purposes of ordering a sale of the property, this behaviour also affects Jordan’s right to occupation rent.

[146] In relation to the issue of when the claim was first made, Jordan did not join his co-tenant Trudy in this proceeding until he served his Amended Application. It also has to be noted that he had to be forced to do so by the Court. In her endorsement dated October 13, 2015, Rogers J. said that an amended application should be served joining Trudy as a party because she was an owner of the home. That endorsement was not complied with by Jordan and he only served an Amended Application joining Trudy when ordered to do so by Bennett J. on February 22, 2017. Moreover, Jordan did not raise the issue of occupation rent until he served the Amended Application on March 17, 2017; his original application did not raise the issue.

[147] As well, apart from his contribution to the expenses of the home, it is apparent that Jordan should have paid spousal support to the respondent as his income was always greater than that of the respondent. I have found that income should not have been imputed to Christina and spousal support would have followed that finding. Even if I ordered that the expenses of the home that Jordan should have paid were set off by occupation rent, there would have been an otherwise primary obligation on Jordan to pay support to Christina. There is no way that Jordan would have ended the day with no obligation to provide support to that household which was obviously struggling financially.

[148] Finally, Jordan provided no independent evidence of the fair market rental of properties in that area. Although he says that the parties agreed on the amount he submitted during his final submissions, Christina said that she never explored rental properties in her neighbourhood. Jordan provided no proof of the fair market rental of this property in order to prove his claim.

[149] For all of these reasons, Jordan’s claim for occupation rent is dismissed. Accordingly, although Jordan was obligated to pay one third of the expenses of the home, I decline to set off occupation rent as against that obligation.

[150] There will be an order that the applicant pay one third of the expenses of the home. To the end of 2017, that amount is quantified, as found above, at $101,117.03. After that date, the amount will be quantified as being one third of the payments on the first and second mortgages, as well as one third of the home insurance costs to the date of closing. That amount shall be deducted and paid to the respondents from Jordan’s share of the equity in the matrimonial home.

[151] In the meantime, and pending the sale of the home, the respondent should pay his one third share of the expenses he agreed to pay. According to Exhibit 101 as adjusted by me, Jordan’s one third share of the expenses on an annual basis is $12,177.34, or $1,014.78 per month. He is to pay that monthly amount to the date of the sale of the home and commencing November 1, 2017. This amount shall be enforceable as support and all payments made shall be deducted from the amount payable by him under the co-tenancy agreement from his share of the equity in the matrimonial home.

Spousal Support

[152] Christina requests spousal support from Jordan. She says that she has both entitlement and need and that an order should go for both retroactive and ongoing spousal support.

[153] Firstly, Christina says she is entitled to compensatory spousal support. She says that the parties pooled their resources together, and that they supported each other during the marriage. They were dependent upon each other economically and shared the expenses and upbringing of their son. She requests spousal support and says that it should be retroactive to the date of separation, July, 2013.

[154] Jordan denies this to be the case. In a surprisingly effective cross examination of Christina, he proved that she was writing off significant personal expenses against her business income during the years leading up to separation. He says that there was never dependency upon each other, and when the marriage broke down, any dependency on him was post-separation and not related to the marriage.

[155] He also says that Christina could be self-sufficient if she wanted to. He noted that she chose to return to school rather than seeking employment in her own field, that of fashions, textiles and school uniforms.

[156] Temporary spousal support was never ordered prior to trial. This was not for want of trying. Christina brought a motion for temporary spousal support before Bennett J. on February 3, 2016; it was dismissed and set down for trial because of the respondent’s “failure to make full disclosure, particularly as to her 2013, 2014 full income tax returns and the particulars of her employment termination in 2013”. The trial was adjourned and the spousal support motion was next returned before Sutherland J. on May 11, 2016, when it was adjourned to a case conference because it would have required well over the one hour limit for the regular motions list. The respondent wife requested spousal support before Jarvis J. on September 15, 2016; however, she had not filed an updated financial statement or updating affidavit under the rules. Spousal support has never been paid by the applicant husband since the date of separation and it was apparent from his submissions at trial that he does not feel that there is any obligation on him to pay spousal support.

[157] Section 15.2 of the Divorce Act[^47] speaks to spousal support orders. As this is a divorce proceeding, that section is applicable.

[158] Section 15.2(4) lists the factors to be taken into account in awarding spousal support; this is the “entitlement” subsection of s. 15.2:

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

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

[159] The factors to be taken into account in making a spousal support award are set out in s. 15.2(6) of the Divorce Act, which reads as follows:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[160] There are no contractual issues as to the awarding of spousal support. Therefore, spousal support in this case must be either compensatory (“disadvantages arising from the marriage”) or non-compensatory (“disadvantages arising from the breakdown of the marriage”): see Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420. Compensatory issues speak to the roles undertaken by each party during the marriage, and the disadvantages accruing to the support claimant as a result. Non-compensatory issues involve the needs of one party and the disproportionate means of the other; these are issues arising from breakdown of the marriage, and economic disadvantages flowing from those issues.

[161] These parties were cohabited for 13 years. Within the marriage, as testified to by Christina, both parties worked and they “supported each other.” There was no evidence given of any disproportionate child care role taken by Christina from which she suffered any economic disadvantage. Although there was evidence that Jordan was away from home for significant periods of time, the evidence was also clear that it was Trudy, and not Christina, who provided the caregiving role respecting Justin; in fact, Trudy says that she had moved in with the parties and retired in order to provide full time care for Justin while both of the parties worked.

[162] Throughout most of the marriage, both parties were also successful in their chosen careers. Jordan, a carpenter by training, did well in the vocation of disaster recovery, other than his business failure which took place well prior to separation, in 2009. Christina also succeeded in setting up a school uniforms sewing business, Aurora Uniforms, which had gross business receipts of up to $50,000 per year. The only reason that this business lost money was because of the significant personal expenses charged by Christina against business income, which went to her benefit and the family’s benefit prior to the separation of the parties. Christina did not prove that she had any disadvantage to her resulting from the marriage or her role within the marriage.

[163] I therefore do not find that the respondent wife has a compensatory claim for spousal support.

[164] I do find, however, that Christina has a non-compensatory or, in other words, a “means and needs” claim to spousal support. During the years 2011 to 2013, Christina was employed with Top Marks, a Montreal firm specializing in uniforms and fashion. She also continued to operate her business, Aurora Uniforms. Christina’s evidence was that, in June of 2013, prior to the date of separation, she was told by her employer that she had to give up her uniforms patterns to her employer and wind up Aurora Uniforms. She said that she did this, only to be terminated, wrongfully, in September of that year. She was by then unemployed, and only obtained part time work at Target after that. She was unable to qualify for Employment Insurance because she was terminated by Top Marks for cause, and was only able to obtain a revised Record of Employment by means of a wrongful dismissal lawsuit, which she testified was for that exact purpose, to change the record of employment. The damages Christina received for wrongful dismissal were, according to her, only $5,000 net of legal fees.

[165] Although the applicant husband would argue that, on the date of separation, Christina was gainfully employed in her career and that there was no causal connection between the separation and her eventual economic circumstances, I disagree. The seeds of the reasons for which the respondent wife was dismissed were, most likely, arising from the fact that she continued to operate her business after separation and after being told not to in June, 2013. In fact, there was evidence that she continued to make purchases for Aurora Uniforms as late as November, 2013, something which was inconsistent with the allegation that she was forced out of business in June of that year. The timing of her problems with her employer and business were coincident with the separation, and not subsequent to it.

[166] In addition, whatever the reasons for her situation, the respondent wife’s economic circumstances result, in my view, from what she referred to as her chosen vocation being in textiles, which she referred to as a “dying industry”. We know what has happened to textile manufacturing in North America and the fact that much of it has now gone offshore because of trade agreements: see, for example, Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161 which speaks of the fate of the Canadian textile industry as a basis for unconscionability in equalization issues. It is apparent to me that there are very few opportunities in that area of employment and for that reason, I refused to impute income to her, and I have ruled that Christina is maximizing her income and becoming self-sufficient by retraining as a law clerk. That being said, there is a good non-compensatory claim for spousal support by Christina, and she is entitled to spousal support under the Divorce Act.

[167] I have attached as Schedule B to this endorsement a Spousal Support Advisory Guideline (“SSAG”) calculation using the incomes that I have found for these parties. It gives a range of $599 per month as a lower range of spousal support to $1,081 per month as an upper range. The suggested duration of spousal support is between 7 and 14 years.

[168] There was no reason given as to why I should depart from the SSAG. As this is a non-compensatory claim for spousal support, the commentary to the SSAG suggests that the range of spousal support be closer to the lower range of spousal support than the upper range: see Rogerson and Thompson, Spousal Support Advisory Guidelines: The Revised Users Guide (2016) at pp. 45-47 and Ross v. Ross, 2010 BCSC 52. However, I note that the respondent wife gave evidence that she expected to enter into the field as a law clerk earning about $30,000 per year, and would eventually have income in the range of $50,000 per year. This means that the duration of support may be quite short, allowing some restructuring: a short duration but higher level of spousal support in order to allow Christina to get a start in her career and become self-sufficient. There will also be a step down of support on the basis of her evidence that she expects to have full time work in the future in her chosen career.

[169] I therefore order spousal support in the amount of $750 per month for three years, after which it reduces for another two years. This is based upon the evidence of Christina, wherein she acknowledged that she expected to be self-sufficient with income of about $50,000 per year within two to three years of graduation. It is also based upon the duration limits in the SSAG, which are between 7 and 14 years for this couple. It should be in the lower range because this is a non-compensatory claim for support, and Christina strikes me as a resourceful and capable individual, who is able to achieve self-sufficiency within the foreseeable future.

[170] The respondent claims retroactive spousal support. Unlike child support, which has to be paid from the date of separation based upon the needs of the child, retroactive spousal support is discretionary, and should not be ordered where it causes hardship: see Bremer v. Bremer, 2005 3938, 13 R.F.L. (6th) 89 (Ont. C.A.).

[171] I decline to order retroactive spousal support partly based upon the applicant husband’s obligation to pay a one third portion of the housing expenses from the date of separation, which will go to assist the needs of Christina as the husband was not in the home during all of this time. In the present case, I have ordered that Jordan pay a portion of the expenses of the home under the co-tenancy agreement which remains binding and in effect subsequent to separation. Those expenses, to be paid from Jordan’s share of the matrimonial home net proceeds, will go to defray the needs of the respondent who was in possession of and had the use of the home since separation. Because of this, I believe that it would be inequitable and would cause a hardship to the applicant to order spousal support on top of that. I have also ordered that Jordan pay just over $1,000 per month towards the expenses of the home to the date of the closing of the sale of the home.

[172] As well, the respondent’s income in 2013 consisted partly of business income from which she unreasonably wrote off personal expenses to reduce that income; her income in that year would have been found to be substantially more than that declared in her income tax return. Finally, much of the need, as will be seen, was caused by the Respondent’s unreasonable refusal to list and sell the matrimonial home, which she and her mother were unable to afford.

[173] I also decline to order retroactive spousal support because of Christine’s behaviour during the litigation. She had requested temporary spousal support on two occasions by motion; one motion was dismissed because she had not made adequate disclosure; the other was dismissed because she had failed to file an updated financial statement. Both motions were dismissed because of Christine’s litigation conduct and I therefore do not feel that it would be fair to order retroactive spousal support under the circumstances.

[174] Therefore, spousal support shall commence upon the closing of the sale of the matrimonial home.

[175] I therefore order spousal support as follows:

a. $750 per month from the date of the closing of the sale of the matrimonial home;

b. Thereafter spousal support shall continue for three years (for a total duration of between seven and eight years after the date of separation), after which spousal support shall reduce to $500 per month for 18 months after which date, it shall come to an end and no further spousal support shall be payable by the applicant.

Order

[176] There shall therefore be a final order as follows:

a. Commencing November 1, 2017, the applicant shall pay the respondent child support in the amount of $682 per month based upon income imputed to the applicant in the amount of $75,000 per annum;

b. The applicant shall pay the respondent arrears of s. 7 expenses for the child in the amount of $1,072.50 to be deducted from his share of the net proceeds of the matrimonial home;

c. The respondent’s claim against the applicant for retroactive spousal support and child support is otherwise dismissed.

d. The parties shall each pay 50% of the expenses for the child’s activities as set out in s. 7(f) of the order of Nelson J. dated February 17, 2015;

e. The applicant shall pay the respondent spousal support in the amount of $750 per month commencing the first of the month after the closing of the sale of the home;

f. Thereafter spousal support shall continue for three years from the date that spousal support commences after which spousal support shall reduce to $500 per month for a further 18 months. After that date, it shall come to an end and no further spousal support shall be payable by the applicant to the respondent.

g. Pending the sale of the home, the applicant shall pay the respondents his one third share of the mortgage, utilities, taxes and insurance in respect of the home in the amount of $1,014.78 per month commencing November 1, 2017;

h. There shall be an order for partition and sale of the matrimonial home subject to the following terms:

I. The parties shall cooperate in choosing a listing agent. If they are unable to agree on an agent, then they may co-list the property, each using an agent of their choice;

II. The home shall be listed at a price as recommended by the realtor or realtors and the parties shall accept all reasonable offers on the home as recommended by the realtor or realtors;

III. The home shall be listed no later than February 1, 2018, with a closing date no earlier than June 30, 2018;

IV. The respondents shall keep the home in a presentable condition for the sale of the property as requested by the realtor or realtors;

V. If there is any disagreement as to the terms of the listing, the conduct of the sale and the execution of any necessary documents concerning the sale, either party may bring a motion to any judge of this court on three clear days’ notice for directions regarding the sale.

i. Pending the sale of the home, Jordan shall pay, commencing November 1, 2017, $1,014.78 per month as his one third contribution to the costs of the home under the co-tenancy agreement;

j. Pending the sale of the home, the respondent, Christina Marquardt-Foster shall have exclusive possession of the matrimonial home subject to her keeping the home in a saleable condition, showing the home when necessary and in general cooperating with the sale of the home;

k. There shall be an order that the respondent pay the applicant an equalization payment of $2,705.62 to be set off as against the amount owing by Jordan for expenses of the matrimonial home as set out below;

l. There shall be an order that, upon the closing of the sale of the home, that the net proceeds after payment of real estate commissions, encumbrances against the home and legal fees, shall be divided into one third shares in respect of each of the three co-tenants of the home.

m. From his share, the applicant shall pay all amounts owing by him under this judgment quantified as follows:

I. To be paid to both of the respondents, the amounts owing under the co-tenancy agreement to December 31, 2017, the sum of $101,117.03;

II. After that day, and to be paid to both respondents, one third of the payments actually made by the respondents under the first and second mortgage (including taxes) plus the insurance costs as adjusted on sale; plus

III. Payable to the respondent, Christina Marquardt-Foster, child support arrears of $1,072.50;

n. There shall be deducted from the amounts to be paid by the the following amounts:

I. As against the funds owing to the respondent, Christina Marquardt-Foster, the equalization payment owing by that respondent to the applicant of $2,705.62,

II. As against the funds owing to both respondents, one third of any adjustments made in favour of the vendors for realty taxes on the sale of the property; and

III. As against the funds owing to both respondents all payments made by the applicant under paragraph i of this order.

o. Once these amounts are paid, the parties shall each have their respective shares of the net proceeds distributed to each of them forthwith;

p. The applicant’s claim for occupation rent is dismissed;

q. The respondent’s claim for permanent exclusive possession of the home is dismissed;

r. The respondents’ claim in debt against the applicant is dismissed.

[177] The parties may make submissions as to costs of this trial, first the applicant and then the respondent on a ten day turnaround. The applicant shall make his submissions first and then the respondent. Submissions shall be no longer than five pages not including offers to settle or bills of costs.

McDERMOT J.

Released: October 30, 2017

[^1]: Trial exhibit 126 [^2]: Endorsement of Kaufman J. made April 26, 2016 [^3]: SOR/97-175 [^4]: Christina had $47,769 in gross business income, but income from the business of ($187). She had $535 in income from employment. [^5]: Net of $16,439 in business losses; the respondent wife’s income from employment was $33,097 that year. [^6]: Net of ($7,717) in business losses; the income from employment was over $37,000 that year. [^7]: This amount is based upon the respondent wife’s T4E slip. She did not have her income tax return for 2016 prepared at the time of trial. She gave evidence that her only income during 2016 was from Employment Insurance and that she otherwise attended at Seneca College as a full time student. [^8]: Such as his notices of assessment. [^9]: See trial exhibit 33. [^10]: There was evidence that he drove the company truck to court and, even though Eric Simtob said that he had to use it at all times, the truck provides him with a personal benefit as a result. [^11]: Order of McCarthy J. dated September 12, 2014. [^12]: Trial exhibit 30 [^13]: Trial exhibit 85 [^14]: R.S.O. 1990, c. F.3 [^15]: Jordan attached some listings for Thundercraft boats to his financial statement (Ex. 47) but he did not testify as to these attachments, and these were dated from 2016, and not the date of separation. I therefore do not find these are evidence of the value of the boat on the date of separation. [^16]: Trial exhibit 50. [^17]: $4,250 + $4,140 + $2,415 = $10,805 [^18]: $4200 + $2,415 = $6,615. Twenty per cent of that amount is $1,323. $6,615 - $1,323 = $5,292. [^19]: Trial exhibit 63 [^20]: Trial exhibit 47 [^21]: Jordan could have taken the stand to testify about this in reply, but it would have been hardly worth it to do this for the purpose of addressing the keyboard only. [^22]: See trial exhibit 84 [^23]: Trial exhibit 44. [^24]: See trial exhibit 87 [^25]: See trial exhibit 108 which speaks of this amount being outstanding on November 30, 2015. [^26]: Trial exhibit 110 [^27]: See trial exhibit 109 [^28]: $2,361.20 - $1,000 [^29]: See the handwritten notes on trial exhibit 90 which is the Scotiabank mortgage statement dated December 31, 2013. I have no reason to doubt those figures, which apparently were obtained by the respondent from the bank. [^30]: Notes on Ex. 90. Christina also testified that there was $75,000 owing on that mortgage and the parties were paying interest only on that mortgage. [^31]: See trial exhibit 105. [^32]: S.O. 2002, c. 24 [^33]: Trial exhibit 84 [^34]: Trial exhibit 48 [^35]: See trial exhibit 16. [^36]: See trial exhibit 13. [^37]: Trial exhibit 62 [^38]: See trial exhibit 41. [^39]: Requested in the applicant’s Amended Application and unanswered by Christina. Trudy objected to this claim in her answer. [^40]: Unlike Walpole v. Walpole, 2012 ONSC 2731 (S.C.J.) where, similarly to the present case, the wife’s mother made a significant contribution to the property, but this was based upon a co-tenancy agreement that she would be, in exchange, provided a residence within in the matrimonial home “for as long as shall be reasonably possible”. This was held to be a bar to the husband’s request to sell the home at trial. [^41]: R.S.O. 1990, c. P.4 [^42]: Christina testified that the parties owe $114,900 under the first mortgage and the second mortgage has $75,000, more or less, owing under it. If the home is, in fact, worth $975,000, then the net equity is $785,100, which results in a payment to each party of $261,700 (not including real estate commission or other closing costs). [^43]: Trial exhibit 89 [^44]: Trial exhibit 101 [^45]: This statement was not made in evidence. Jordan said during final submissions that the fair rental of a residence in that neighbourhood (and he says the parties agree on this) is $2,000 to $2,500 per month. [^46]: R.S.O. 1990, c. C.43 [^47]: R.S.C. 1985, c. 3 (2nd Supp.)

Introduction

Issues

Discussion

Parties’ Incomes

Jordan’s Income

Christina’s Income

Child Support

Equalization of Property

Matrimonial Home

Household Contents

Vehicles and Boat

Other Miscellaneous Chattels

Gucci Watch

Musical Instruments

Miscellaneous Hobby Equipment Owned by Jordan

Engagement Ring

Applicant’s Tools

Bank Accounts

Life Insurance

Business Interests

Debts and Liabilities

Mortgages

Debt of $50,000 Owing to Trudy

Debt of $50,000 Owing to Members of Christina’s and Trudy’s Family

Telus Mobility

Crates Marine

CRA Debt

Sylvan Learning Centre

Rogers Cell Phone

Conclusion

Matrimonial Home

Sale of Home

Exclusive Possession

Amounts Due Pursuant to Co-Tenancy Agreement and Occupation Rent

Spousal Support

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 9

Legal Tests 4

Legislation 6