CITATION: Lambert v. Peachman, 2017 ONSC 7450

PETERBOROUGH COURT FILE NO.: 59/14

DATE: 20171214

Corrected Decision Date: 20180201

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Elizabeth Heather Lena Lambert

Applicant

– and –

Eric Norman Peachman

Respondent

Russell Alexander, for the Applicant

Michael Tweyman, for the Respondent

WOODLEY, S. J.

HEARD: November 24, 25, 26, 2015, December 1, 2, 2015, May 16,17,18,19,20,23,24, 25, 26, 27, 31, June 1, 2016

FINAL WRITTEN SUBMISSIONS RECEIVED: June 27, 2017

CORRECTED REASONS FOR DECISION REGARDING FINANCIAL ISSUES

OVERVIEW

1The trial in this matter commenced on November 24, 2015 and continued for 16 days over two trial sittings. The evidence at trial concluded on June 1, 2016. I released my Reasons for Decision regarding parenting on December 1, 2016, as Lambert v. Peachman, 2016 ONSC 7443.

2Following release of the parenting decision, the parties filed their financial issue submissions with the final written submissions being filed on June 27, 2017. On this same date, the Applicant brought a motion to Re-Open the Trial. This motion was heard by me on July 7, 2017.

3For Reasons for Decision released on July 10, 2017, as Lambert v. Peachman, 2017 ONSC 4270, I dismissed the Motion to Re-Open the Trial.

4These Reasons for Decision are restricted to the financial issues between the parties and represent the last puzzle piece of an overly lengthy and unnecessarily litigious family law proceeding.

ISSUES

5The general issues to be determined are:

a. Equalization of Net Family Property (NFP);

b. Child Support; and

c. Spousal Support.

POSITIONS OF THE PARTIES

6The specific issues and the positions of the parties relative to those issues are as follows:

a. Equalization of Net Family Property

i. Elizabeth requests an equalization payment to Eric in the amount of $73,606.06 with credits for payments already received by Eric in the amount of $6,467.22, and the remaining balance of $67,139.44 to be paid by way of pension transfer or current locked-in RRSP; and

Eric requests an equalization payment to Eric in the amount of $126,916.20 ($105,340.45 + 17% gross-up), by way of a directed transfer of 40.28% from Elizabeth’s OMERS pension to Eric.

b. Child Support

i. Elizabeth requests that child support payments be payable based on set-off in the amount of $416/month based on the parties’ 2015 incomes, and termination of payment according to the provisions set out in the submitted draft Order. As for s. 7 expenses, Elizabeth suggests that she should be responsible for 66% and Eric be responsible for 34% of all s. 7 expenses, and that this proportion be adjusted in accordance with any adjustments to child support; and

ii. Eric requests that child support arrears be assessed as owing by Elizabeth for January 1, 2013 to April 1, 2016 and fixed at $11,361. Eric requests child support payable by Elizabeth commencing May 1, 2016, and on the first of each month thereafter, of $747/month. As for s. 7 expenses, Eric requests that Elizabeth be responsible for 57% and Eric be responsible for 43% of all s. 7 expenses.

c. Spousal Support

i. Elizabeth requests no spousal support going forward or spousal support arrears payable by either party; and

ii. Eric requests spousal support be paid by Elizabeth commencing May 1, 2016, and on the first of each month thereafter, in the sum of $405/month, indefinitely and that spousal support arrears from June 1, 2012 to April, 2016 be fixed at $26,524, and payment be made payable to Eric in the form of non-taxable, lump sum support that is non-deductible for Elizabeth. Eric requests that Elizabeth transfer, by way of a spousal rollover, particular RRSPs to Eric as outlined in the submitted draft Order to cover the owed amount of $18,023.79. As well, an order that OMERS transfer $8,500.21 from Elizabeth's pension to satisfy the remainder of the lump sum spousal support payment. Eric further requests that the parties each have 50% of the combined NDI according to the Spousal Support Guidelines (SSAGs) criteria.

d. Miscellaneous

i. Elizabeth requests an order that the parties keep $150,000 life insurance policies in place for the children as long as they are dependents or until they reach 23 years old, whichever occurs first; and

Eric requests an order that Elizabeth delay the divorce for five years from the date of this order and maintain Eric on her benefits through insurance for this time period. Or, Elizabeth can proceed with the divorce and maintain Eric on her benefits. Or, if Elizabeth cannot maintain Eric on the benefits for any reason, pay the cost of up to $350/month for additional insurance which covers the current benefits available to Eric. Eric seeks this additional insurance be maintained for 5 years from the date of the order. Eric seeks an order that Elizabeth shall provide Eric with a copy of her benefits handbook so Eric is aware what benefits are available to him and that Elizabeth further ensures that Eric is forthwith reimbursed. Eric seeks an order that Elizabeth maintain Eric as irrevocable beneficiary, in trust for the children, on her Cooperators Policy, of no less than $200,000 of the face value of the policy.

DETERMINATION OF ISSUES

7The specific issues are determined as follows:

a. Equalization of Net Family Property

i. Elizabeth shall make an equalization payment to Eric in the amount of $93,294.57 by way of a directed transfer of the amount subject to a gross up of 17% for a total payment of $112,403.09 to be paid by way of pension transfer from Elizabeth’s OMERS pension to Eric.

b. Child Support

i. Elizabeth shall pay set-off child support for the period October 1, 2014 to December 31, 2014, in the amount of $407/month for the support of two children, based on Elizabeth’s 2014 income of $85,052.00 and Eric’s 2014 income of $55,607.00.

ii. Elizabeth shall pay ongoing set-off child support for the support of two children commencing January 1, 2015, and on the first of each month thereafter, in the amount of $416/month for the support of two children based on Elizabeth’s 2015 income of $87,676 and Eric’s 2015 income of $57,106, adjusted annually.

iii. Any arrears of child support owed to December 31, 2017, shall be paid by lump sum payment from Elizabeth to Eric, within 90 days of the date of this Order.

iv. As for s. 7 expenses, Elizabeth shall be responsible for 60% and Eric be responsible for 40% of all s. 7 expenses.

c. Spousal Support

i. Elizabeth shall pay Eric the sum of $3,278.00 in lump sum spousal support representing the adjusted/retroactive spousal support for the period October 1, 2014 to November 30, 2017, adjusted for tax purposes.

ii. Elizabeth shall pay ongoing spousal support to Eric commencing December 1, 2017, and on the first of each month thereafter, based on SSAG mid-range spousal support in the amount of $43.00 indefinitely.

d. Miscellaneous

i. Elizabeth shall maintain a $58,000 life insurance policy as security for her child support obligations naming Eric as the designated beneficiary for so long as Elizabeth has a child support obligation.

ii. Elizabeth shall provide Eric with a copy of her benefits handbook so Eric is aware what benefits are available to him and Elizabeth will ensures that Eric is forthwith reimbursed.

iii. In the event that Elizabeth ceases to maintain Eric on her benefits for any reason, Elizabeth shall pay to Eric ½ the cost for additional insurance required to cover the current benefits available to Eric to a maximum of $175 per month for 5 years from the date of this order.

iv. Either party shall be at liberty to seek a divorce from the other on a without costs basis.

BACKGROUND FACTS

8Elizabeth and Eric commenced cohabiting in August 1987 and were married on May 12, 1990.

9Eric receives income from Long-Term Disability payments and CPP Disability, while Elizabeth earns an income from the Kawartha Pine Ridge District School Board.

10The parties separated on June 6, 2012, but remained living together at the family home. The parties started paying 50% each towards the household expenses on November 1, 2012.

11On consent of the parties, an Order was obtained on June 13, 2014 for the sale of the matrimonial home.

12Elizabeth moved out of the matrimonial home sometime on or about October 1, 2014.

13The matrimonial home sale closed on March 11, 2015 for approximately $312,000.

14In June 2015, Sutherland J. made an order for child support, payment towards ongoing expenses and costs. The commencement date of Sutherland J.’s June 23, 2015 order for child support was April 1, 2015.

15Elizabeth declared bankruptcy on July 23, 2015.

16On November 24, 2015, Master Jean issued an order permitting Eric to proceed with his Family Law Act (FLA) claims against Elizabeth and proceed against assets that were exempt from the bankruptcy.

17A trial was held between the parties in November-December 2015 and May-June 2016. Final submissions relating to the financial issues were filed on June 27, 2017.

18Elizabeth's automatic discharge date from bankruptcy was April 24, 2017.

19The key dates for the purpose of the financial and property issues are:

a. Date of cohabitation: August 1987;

b. Date of marriage: May 12, 1990;

c. Date of birth of children: April 7, 1997 and December 11, 2003;

d. Date of separation: June 5, 2012;

e. Date the parties started paying 50% towards house expenses: Nov. 1, 2012;

f. Date the parties stopped living together: October 1, 2014;

g. Date of sale of matrimonial home: March 11, 2015;

h. Date child support commenced: April 1, 2015;

i. Date of Elizabeth’s bankruptcy: July 23, 2015; and

j. Date of Elizabeth’s discharge from bankruptcy: April 24, 2017.

20For a more detailed review of the background facts see my earlier Reasons for Decision found at Lambert v. Peachman, 2016 ONSC 7443.

KEY ISSUES/QUESTIONS/ANSWERS:

21The following key issues/questions are herein answered to determine the specific relief requested as follows:

A. Child Support Issues

a. What is each party’s income?

i. Both of the parties utilized their RRSPs to fund the litigation and to pay their ongoing expenses. As per the Court of Appeal in Ludmer v. Ludmer 2014 ONCA 827 such withdrawals were not used to enhance the parties’ lifestyles and it would be unfair to include the withdrawals for support purposes. Therefore, for the purpose in computing income I have not included RRSP withdrawals received by either party.

ii. Eric’s income consists of RBC Long Term Disability payments and CPP Disability payments. However, according to the Court of Appeal in Sipos v. Sipos, 2007 ONCA 126 the child benefit received from CPP is not included for support purposes. Eric also owns a small business called Kawartha Solutions. Eric’s evidence was that his business expenses significantly exceeded his revenue. For the purposes of determining income Eric conceded that his business loss may be removed from his income with the net result is that Eric’s income for 2015 is $57,106.

iii. Elizabeth’s income consists only of her employment income. Again, deducting any RRSP payments received, the net result is that Elizabeth’s income for 2015 is $87,676.94.

b. What is the parenting arrangement between the parties?

i. As previously noted, the parenting issues were determined by me by Reasons for Decision found at Lambert v. Peachman, 2016 ONSC 7443.

ii. During the course of the proceedings Eric argued that custody and access should be joint and shared in accordance with an agreement reached between the parties following separation and the status quo. After a thorough review of the facts and considering the best interests of the children I found that custody and access should be joint and shared.

iii. At the time of trial, the eldest child was 18 years of age and no order regarding custody or access was made relating to the eldest child.

iv. At trial Eric provided some evidence that the eldest child spent the majority of his time (at that time) at Eric’s residence. Elizabeth claimed that the eldest child roughly shared his time between the two residences.

v. Since the date of the trial there have been changes to the make-up of Eric’s household. It may be that the eldest child spends more time with Eric – or – it may be that he has settled into a shared parenting regime. I cannot say with any certainty whether the eldest child spent or is spending more time at one or the other parent’s home. I do know that Eric requested shared parenting as per the parties’ agreement and the status quo.

vi. As I am not satisfied that the status quo has been changed such that the eldest child spends more time with Eric than Elizabeth, child support will include the support of both children, sharing equal parenting time with each of Eric and Elizabeth.

c. What is the simple set-off monthly amount to be paid to Eric?

i. The parties separated on June 1, 2012 and continued to reside together under the same roof until October 1, 2014. During the period that the parties were separated but living together, they shared all household expenses 50/50 pursuant to an informal agreement.

ii. Eric submits that Elizabeth foisted the 50/50 split of expenses and there was no agreement. Eric seeks repayment of expenses incurred beyond his proportionate share and retroactive child support for the period following June 1, 2012.

iii. I do not accept this submission. The parties resided together for 2 years and 4 months sharing expenses pursuant to an informal arrangement. I see no reason to undo or adjust the arrangement. I make no order for repayment of expenses or for child support for the period prior to October 1, 2014, being the date the parties’ physically separated.

iv. Elizabeth’s obligation to pay child support on a simple set-off basis commenced on October 1, 2014.

v. The evidence establishes that Elizabeth’s 2014 income was $85,052.00 and Eric’s 2014 income was $55,607.49. According to the Child Support Guidelines, the simple set-off monthly amount to be paid to Eric based on the parties’ 2014 incomes is $407.00 commencing October 1, 2014 to December 31, 2014.

vi. The evidence establishes that Elizabeth’s 2015 income was $87,676.94 and Eric’s 2015 income was $57,106.00. According to the Child Support Guidelines, the simple set-off monthly amount to be paid to Eric based on the parties’ 2015 incomes (Elizabeth at $87,676.94 and Eric at $57,106.00) is $416.00 per month commencing January 1, 2015, and on the first of each month thereafter, adjusted annually.

d. Should termination criteria for child support payments be imposed by the court?

i. Child support shall be payable in accordance with the provisions of the Divorce Act for as long as the children or either one of them remain a child of the marriage.

e. How should s. 7 expenses be shared between the parties?

i. Section 7 expenses should be shared according to s. 7 (e) of the FCSG which in the present case requires Elizabeth to contribute 60% and Eric to contribute 40%.

B. Spousal Support Issues

a. Is Eric entitled to compensatory or non-compensatory spousal support from Elizabeth? If so, what range (and/or quantum) would be appropriate under the Divorce Act?

i. Eric and Elizabeth were married in excess of 22 years and cohabitated in excess of 25 years. During their marriage the parties had two children together. Although Eric initially was the primary breadwinner, over time Elizabeth’s earnings met and surpassed Eric’s earnings. Eric became disabled during the course of the marriage and remains permanently disabled. His income is limited to employee and government disability payments. Eric’s employee disability payments cease at age 65 years.

ii. As noted in my Reasons for Decision regarding parenting, Lambert v. Peachman, 2016 ONSC 7443, following his disability, Eric became more involved in the household chores and assumed many roles previously undertaken by Elizabeth. Elizabeth was therefore able to dedicate more time to her career. Elizabeth’s career flourished and she received promotions and corresponding increases in her salary following Eric’s disability. However, Eric’s career did not suffer as a result of the marriage. Eric’s career suffered as a result of his illness and ensuing disability. Eric was deemed permanently disabled and unfit to work in any capacity which disability arose during the marriage.

iii. In the present circumstances it would appear that Eric is not entitled to receipt of compensatory support. However, given the length of cohabitation (25 years) and Eric’s age at the date of separation (47 years), the issue is moot. The result, whether based on compensatory or non-compensatory is the same. Eric is entitled to indefinite spousal support.

b. What is the appropriate quantum of support in this case?

i. Given:

a. the length of the parties’ marriage;

b. the fact that both parties had little to no savings or assets at the end of the marriage; and

c. the fact that Eric developed a disability during his marriage that prohibits him from working in any field;

it is appropriate that the parties’ have similar standards of living and that the quantum of support ordered based on SSAG mid-range spousal support.

c. If an order is made, how long should the recipient receive payment? What, if any, terms or conditions should terminate payments?

i. It is appropriate that spousal support be set in the mid-range and that it be indefinite.

d. For what period and in what amount is Eric entitled to a spousal support award?

i. As noted above, the parties shared expenses pursuant to an informal agreement during the period of their cohabitation following separation. Both child and spousal support became payable as at the date that Elizabeth vacated the property being October 1, 2014 and is payable as follows:

i. Elizabeth shall pay spousal support to Eric commencing October 1, 2014 to December 31, 2014, based on SSAG mid-range spousal support in the amount of $82.00 per month.

ii. Elizabeth shall pay spousal support to Eric commencing January 1, 2015, to December 31, 2015 based on SSAG mid-range spousal support in the sum of $80 per month.

iii. Elizabeth shall pay spousal support to Eric commencing January 1, 2016 to November 30, 2017, based on SSAG mid-range spousal support in the amount of $58.00 per month.

iv. Elizabeth shall pay ongoing spousal support to Eric commencing December 1, 2017, and on the first of each month thereafter, based on SSAG mid-range spousal support in the amount of $43.00 per month, indefinitely.

e. Should the court order transfers from Elizabeth’s locked-in and non-locked-in RRSPs to satisfy support arrears and, if so, should they be categorized as non-taxable?

i. To determine need to implement security provision for support orders, a court should consider:

a. if a party has a history of dissipating assets, so is unable to handle money;

b. if a party lives outside the jurisdiction or is a threat to abscond;

c. if a party previously refused to honour a support obligation (court order or contract) or has refused to provide support at all;

d. if a party has a poor employment history or indicated they plan to leave employment;

e. if a party is outside the jurisdiction at hearing time, but has assets in Ontario; or

f. if a party declared they will not pay an eventual order.¹

ii. None of the considerations apply to the circumstances of this case and the arrears of child and spousal support shall be paid by lump sum payment by Elizabeth to Eric.

C. Equalization of Net Family Property Issues

a. What is the value of each disputed item?

i. The Buick Enclave: Although registered in Eric’s name the Buick Enclave was driven by Elizabeth for a further two years following separation. Two separate appraisals were obtained from Keith Monk, one for date of separation at $20,000 and one by email dated July 16, 2015, which stated that the vehicle was worth approximately $11,000. It is difficult to determine the exact value that would be representative of the value in Eric’s hands at the date Elizabeth returned the vehicle to his care. However, a fair approach appears to be the midpoint between the two appraisals, or $15,500, being the average of the two appraisal. The value assigned to the vehicle is $15,500.

ii. 2012 CRA tax arrears: At trial Eric admitted that the NFP value of the CRA debts did not take into account the fact that the parties separated halfway through the year. The correct value to be applied to the CRA debt to be equalized is $4,800.00.

iii. Sick pay gratuity: Sick pay gratuities are considered property. In the present case the property was earned during the marriage. The value of the sick pay gratuity at date of separation was $24,443.08 which value is subject to a notional disposition cost. Eric obtained a letter from Mr. Peter Martin that applied a discount rate and valued the asset at $18,069. Elizabeth did not present independent evidence to value the asset but sought to discount the asset to its’ current cash out value minus 21%. I reject this approach as speculative and adopt Mr. Martin’s figure of $18,069.

iv. The 2002 Citation trailer: Elizabeth suggested and Eric agreed to have Keith Monk value their assets. While Elizabeth relied on some valuations she rejected the trailer valuation in favour of an email from Karen Challinor dated four months after Mr. Monk’s valuation. In weighing the evidence I accept the joint valuation received from Mr. Monk and determine that the value of the trailer is $5,200.

v. Loan to Angela Ronco: The loan was due to Elizabeth as co-signor, not Eric. The fact that Angela was Eric’s niece does not change this fact. No amount is to be included with respect to this loan by Eric.

vi. Elizabeth’s claims for credits on sale of home: According to section 71 of the Bankruptcy and Insolvency Act (BIA),² any interests in family-held lands and equalization vest in the trustee in bankruptcy.³ This includes Elizabeth’s interest in matrimonial home sale proceeds. Acknowledging the possibility that debt or costs payable exist, those occurring post-separation, post-closing, and giving rise to post-bankruptcy interests do not belong to the bankrupt party and should not be used in the equalization calculation.⁴ Elizabeth declared bankruptcy and following her declaration had no ownership rights in the house and no interest regarding this issue. Elizabeth is not entitled to receive a credit for funds that were not owned by her. (See Sickinger v. Sickinger, 2016 ONSC 3806.

vii. Hot tub repairs: The payments were reimbursement for expenses. In any event, as above, Elizabeth had no interest in the proceeds and cannot claim a credit in this regard.

viii. Gross Up for Equalization Payment: On December 4, 2015, the parties agreed that the equalization payment would be grossed up by 17% on consent. This amount (17%) shall be applied to the equalization payment due to Eric.

ix. Value of Elizabeth’s Rings as Excluded Property: Although not raised in the written submissions, the parties treated Elizabeth’s rings differently on their NFP Statements. I accept Elizabeth’s submission that the rings were a gift or inheritance from a third person valued at approximately $2,200 and are excluded property.

x. Notional Disposition Cost of Pension and Eric’s RRSPs:

a. When disposition costs are in issue, courts apply three rules: (i) the overriding principle of fairness applies, i.e., that costs of disposition as well as benefits should be shared equally; (ii) each case should be decided on its own facts, considering the nature of the assets involved, evidence as to the probable timing of their disposition, and the probable tax and other costs of disposition at that time, discounted as of valuation day; and (iii) disposition costs are deducted before arriving at the equalization payment, except in the situation where "it is not clear when, if ever," there will be a realization of the property.⁵

b. To determine the appropriate notional RRSP tax rates—where the parties disagree—the court’s analysis must rely on evidence supporting the expected time of disposition.⁶ If the evidence is lacking, the court may consider both agreed upon rates for other assets as well as hindsight evidence of post-separation text rates and actual disposition costs incurred upon sale of RRSPs.⁷

c. For pensions, a similar reliance on evidence is preferable.⁸ As a contingent interest, the court must examine what was “reasonably foreseeable on the valuation date”.⁹

d. In the present case, actuarial evidence was provided by Mr. Kavanagh who provided an opinion as to the notional disposition cost of Eric’s RRSPs, Elizabeth’s RRSPs, and Elizabeth’s pension.

e. With respect to both Eric’s and Elizabeth’s RRSPs, further independent evidence is available to assist with the calculations. Eric’s RRSPs were disposed of and Eric was required to pay approximately 18% on disposition. The rates proposed by Eric relating to his assets are the rates that shall be applied. As for Elizabeth’s RRSPs, Elizabeth was required to pay 21.4% on disposition. The rates proposed by Elizabeth relating to her assets is the rate that shall be applied.

f. With respect to Elizabeth’s pension, I must examine what is reasonably foreseeable on the valuation date. The notional disposition cost of Elizabeth’s pension as determined by Mr. Kavanagh is 21.14%. Although this figure did not take into effect Elizabeth’s obligation to pay spousal support, the obligation at this time (which is the date of disposition for payout of the pension to Eric) is minimal. For this reason I accept Mr. Kavanagh’s calculations and attach a notional disposition cost to the pension at 21.4%.

xi. Differing Values Attached to Various Assets and Liabilities on Applicant and Respondent’s NFP Statements: By their written submissions the parties directed me to determine the value of certain disputed items so that the equalization payment could be determined. I determined the value of each disputed item which value is recorded at paragraphs i. to x above. However, when I inputted the determined values - the equalization payment differed minimally depending on whether I utilized the Applicant’s NFP statement or the Respondent’s NFP statement. To ensure a fair and proportionate result the equalization payment so ordered is the mid-point value between the Applicant and Respondent’s NFP statement (with the determined values inputted).

D. Miscellaneous Issues

a. Should the court make any inference regarding Elizabeth’s bankruptcy?

i. Eric raises concerns about Elizabeth’s bankruptcy and submits that Elizabeth wants to harm Eric financially and will do what is necessary to do so. There was no evidence that would lead me to believe that Elizabeth’s bankruptcy was not a legitimate legal remedy open to assist her in a time of financial need. To the extent that it is relevant I make no negative findings whatsoever as to Elizabeth’s credibility or motivation to declare bankruptcy.

b. Should Eric have continuing access to Elizabeth’s health and medical benefits? If so, how?

i. Elizabeth contests Eric’s entitlement to health and medical benefits generally, claiming that he cannot request relief now that was not previously pled. Contrary to Elizabeth’s position, Eric is not barred from making these requests merely because he had not done so prior to financial disclosure.¹⁰ However, Eric’s access to Elizabeth’s health and medical benefits is dependent on the plan holder’s policies and Elizabeth’s cooperation.

ii. In the event that Eric no longer has access to Elizabeth’s health and medical benefits he will suffer a significant loss in the form of increased monthly expenses and/or insurance premiums estimated at $350/month. This loss is foreseeable and directly connected to the dissolution of the marriage.

iii. Elizabeth shall provide Eric with a copy of her benefits handbook so Eric is aware what benefits are available to him and Elizabeth will ensures that Eric is forthwith reimbursed.

iv. In the event that Elizabeth ceases to maintain Eric on her benefits for any reason, Elizabeth shall pay to Eric ½ the cost for additional insurance required to cover the current benefits available to Eric to a maximum of $175 per month for 5 years from the date of this order.

c. Should Eric be designated the irrevocable beneficiary on Elizabeth’s two life insurance policies?

i. Although Eric did not plead this relief in his Answer, the court has jurisdiction to require a spouse with existing life insurance to designate a beneficiary, but not to obtain or reinstate it.¹¹

ii. In the circumstances it is appropriate to ensure that the existing life insurance is designated in favour of Eric to the extent of the outstanding child support obligation owed to him. The life insurance ordered herein represents the outstanding child support obligation due as determined by the Divorcemate calculation.

iii. With respect to security for Eric’s support, in the event that Elizabeth predeceases Eric and he is entitled to support at that time - if there is no life insurance or provision in place to satisfy any support obligation owed - Eric is entitled to seek support from Elizabeth’s estate pursuant to the provisions of the Succession Law Reform Act. No security will be ordered by me in this regard.

d. Is Eric entitled to receive pre-judgment and post-judgment interest on his equalization payment?

i. It is well-established that post-judgment interest is awarded as a rule on equalization payments payable over a period of years.¹² This is distinct from the rule in Heringer v. Heringer,¹³ which specifically concerns a receiving spouse’s entitlement to interest on pension accruing from the valuation date to the date of disposition.¹⁴ Eric is entitled to pre-judgment interest from the date of separation being June 5, 2012 and post-judgment interest.

DISPOSITION AND COSTS

22For the Reasons for Decision herein, an Order shall issue in accordance with paragraph 7 herein.

23In the event that the parties are unable to agree, within 20 days of today’s date, of apportionment and payment of the costs of the trial relating to the (i) parenting issues; and (ii) the financial issues, the parties shall file costs submissions as follows:

a. Costs Regarding Parenting Issues

i. The Respondent shall file costs submissions restricted to four (4) pages total, relating to the parenting issues; with bills of costs separating the issues (parenting vs. financial); together with any offers to settle exchanged within 30 days of today’s date;

ii. The Applicant shall file costs submissions restricted to four (4) pages total, relating to the parenting issues; with bills of costs separating the issues (parenting vs. financial); together with any offers to settle exchanged within 45 days of today’s date;

iii. The Respondent shall file a Reply, if necessary, restricted to 2 pages, within 60 days of the date herein; and

iv. There shall be no sur-rebuttal reply.

b. Costs Regarding Financial Issues

i. The Applicant shall file costs submissions restricted to four (4) pages total, relating to the financial issues; with bills of costs separating the issues (parenting vs. financial); together with any offers to settle exchanged within 30 days of today’s date;

ii. The Respondent shall file costs submissions restricted to four (4) pages total, relating to the financial issues; with bills of costs separating the issues (parenting vs. financial); together with any offers to settle exchanged within 45 days of today’s date;

iii. The Applicant shall file a Reply, if necessary, restricted to 2 pages, within 60 days of the date herein; and

iv. There shall be no sur-rebuttal reply.

Justice S. J. Woodley

Originally Released: December 14, 2017

Corrected Release: February 1, 2018

APPENDIX I: DISPUTED NFP VALUES

Assets on Valuation Date	Liz’ position	Eric’s position	Court’s Findings
Eric’s Buick Enclave	$20,000 (appraisal)	$11,000 (appraisal)	$15,500.00
Eric’s Citation Trailer *Angela’s rings (excl. pty)	$13,000 (appraisal) $2,200	$5,200 (appraisal) $0	$5,200 (Monk appraisal) *$2,200 excl. property
Eric’s owed loans to Angela Ronco	$13,493.25	Angela has no obligation to pay Eric back	$0
Liz’ Sick Pay Cashout	$4,938.29	$18,069	$18,069
Liz’ OMERS pension Agreed value: $315,028	$247,929 (based on age 65 retirement [equaling $279,901.l2], then less 21.4%)	$252,022.36 (total value, less 20%)	$247,929
Eric’s savings (RRSPs) [Agreed value: $115,976]	$106,118.00 (8.5% Notional Tax)	$42,787.33 (19.06% avg Notional Tax) $57,558.59 (17% avg Notional Tax)	$42,787.33 (19.06% NT) $57,558.59 (17% NT)
Liz’ RRSP savings	$49,508.85 (21.4% Notional Tax)	$50,556.41 (20% Notional Tax)	$49,508.85 (21.4% NT)

Debts and Liabilities on Valuation Date	Liz’ position	Eric’s position	Court’s findings
CRA debt	$4,800 (calculated to account for separation date occurring halfway through tax year)	$9,600	$4,800

Total payment	Liz’ position	Eric’s position	Court’s findings
Liz pays Eric	$67,139.44 ($73,606.66 minus a credit of $6,467.22 which she already paid Eric)	$126,916.20 ($105,340.45 grossed up by 17%, agreed on mid-trial by both parties)	$112,403.09 ($93,294.57 + 17% gross-up)

APPENDIX 2: DISPUTED SUPPORT VALUES

Item	Liz’ position	Eric’s position	Court’s findings
Child support set-off	$416/month	$747/month	$416/month
Retroactive child support	none	$11,361	Oct 1/14 – Dec 31/14 @$407/month and Jan 1/15 – Mar 31/15 @ $416/month
Section 7 expense split	66/34	57/43.	60/40
Spousal support set-off Spousal support arrears	None None	405/month $26,524	$80/month Oct 1/14 – Dec 31/14 @ $82/ Month and Jan 1/15 – Dec 31/17 @ $80/month midrange SSGA, adj. yearly

Footnotes

1. 1Singh v. Singh, 1999 14954 (ON SC), [1999] O.J. No. 2840, 1 R.F.L. (5th) 136 (Ont. S.C.J.).
2. 2R.S.C. 1985, c. B-3.
3. 3Green v. Green, 2015 ONCA 541 at para. 3.
4. 4Sickinger v. Sickinger, 2016 ONSC 3806.
5. 5McPherson v. McPherson, 1988 4732 (ON CA), 63 O.R. (2d) 641, 13 R.F.L. (3d) 1 (Ont. C.A.).
6. 6Virc v. Blair, 2016 ONSC 49.
7. 7Ibid at para. 198.
8. 8Green v. Green, 2007 2939 (ON SC), [2007] O.J. No. 454, 38 R.F.L. (6th) 378(Ont. S.C.J.) at para. 46.
9. 9Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271 (Ont. C.A.)
10. 10FLA s. 34(1)(k).
11. 11FLA, s. 34(1); Feinstat v. Feinstat, 2012 ONSC 5339 (Ont. Gen. Div.).
12. 12LeVan v. LeVan, 2006 63733 (ON SC), [2006] O.J. No. 4599, 32 R.F.L. (6th) 359 (Ont. S.C.J.) at para. 19.
13. 13Heringer v. Heringer, 2014 ONSC 7291.
14. 14Brown v. Brown, 2015 ONSC 7968 at para. 43.