CITATION: Fortier v. Lauzon, 2017 ONSC 7503
COURT FILE NO.: FC-15-790
DATE: 2017/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lionel Fortier
Applicant
– and –
Julie Lauzon
Respondent
Self-represented
John Summers, Counsel for the Respondent
HEARD: September 18, 19 and 20, 2017
Reasons for judgment
SHELSTON J.
Overview
[1] The applicant, hereinafter referred to as “the father”, commenced proceedings on April 14, 2015 seeking various claims for relief including a divorce; joint custody of the children; an alternating weekly schedule; an order determining the spousal support and the sharing of section 7 expenses; a division of the parties’ net family property; an order seeking the sale of the family residence; and costs.
[2] The respondent, hereinafter referred to as “the mother”, filed an Answer dated May 12, 2015 where she made various claims for relief including sole custody of the children; child support; spousal support, medical and dental coverage for the children and herself; life insurance designation of $250,000; an equalization of the net family property; an order granting her exclusive possession of the family residence and its contents; and costs.
[3] On September 8, 2017, Justice Doyle granted an order based on the Partial Minutes of Settlement signed that day by the parties, which settled the issue of a divorce order, custody, access, child support, life insurance, and medical/dental benefits, and agreed that each party would bear its own costs.
Issues for Trial
[4] The issues for trial are as follows:
a. the father’s claim of occupation rent from the mother;
b. determination of the equalization of the net family property;
c. methodology for the payment of an equalization payment;
d. the father’s request that the mother deposit between $25,000 and $30,000 into a Registered Education Savings Plan (“RESP”);
e. the father’s request that the mother provide evidence that his name is removed from the mortgage with Tangerine and that there is no liability with the City of Ottawa regarding municipal taxes for the matrimonial home;
f. life insurance provisions; and
g. costs.
Background Facts
[5] After marrying on July 17, 1999, the parties had four children between the years 2000 and 2007. The father is a public servant while the mother operates a home daycare.
[6] The parties separated on October 11, 2014 and remained in the matrimonial home together. From October 2014 to April 2015, the mother lived upstairs and the father lived in the basement part of the home. This arrangement continued until April 2015.
[7] By April 2015, the father was sleeping outside the matrimonial home by staying overnight at his girlfriend’s. In Easter 2015, the father attended at the matrimonial home while the mother and the children were out and he removed the TV off the wall, speakers off the wall, and a receiver and electronics. He left a note to the mother where he stated: “Since you turned off the Internet, I took whatever was mine.”
[8] The situation in the home was deteriorating. The parties argued over its contents. The parties argued over the mother moving the family computer from the father’s room to her room because she was concerned that the father would remove it. The father called the police to complain. The police did not attend. On April 7, 2015, the father decided to leave the home and pack a suitcase. He returned on April 8 to retrieve certain items.
[9] The mother contacted the police, who advised her to change the locks. On April 10, the father attended at the home to see the children but the locks were changed and he could not enter. Again the police were called and the husband was advised that if he did not leave, he would be arrested.
[10] On April 7, 2015, the father’s supervisor advised the father to take time off work which he did, returning to work on May 4, 2015. On that date, while at work, the father called the mother and made threats against the mother that resulted in the father being arrested by the Gatineau Police at his place of work. On February 18, 2016, the criminal proceedings ended with the father entering into a peace bond.
[11] From mid-April 2015, the mother paid for all expenses related to the matrimonial home without any contribution by the father.
[12] On April 14, 2015 the father commenced this proceeding. On November 16, 2015, Master Champagne made a temporary and without prejudice order that the children and the mother would reside at the matrimonial home; the father would have supervised access once per week at designated supervised access locations and the father would pay to the mother child support of $1,149 per month commencing December 1, 2015.
[13] On June 9, 2016, the parties appeared before me on a motion for temporary relief. At that time, the parties signed interim minutes of settlement which were incorporated into my order dated June 9, 2016. My order dealt with issues regarding support, access, disclosure, and the matrimonial home. Pursuant to paragraphs 5 and 6 of my order, the parties agreed to the following:
- The matrimonial home shall be transferred to the mother on the following conditions:
(a) The father shall obtain an appraisal with Independent Appraisers at his cost. The father shall be allowed to attend with the appraiser, but he shall not bring any one with him. The mother may have any third-party present. The father will not communicate with the mother during the appraisal. The appraisal will be either on the weekend or in the evening after 5:30 pm;
(b) The mother shall forthwith apply to the bank for approval to remove the father from the mortgage;
(c) Subject to the ability of the bank to comply and the consent of counsel, should the mother not be approved within 30 days of the minutes, the home shall be listed for sale by Mario Lemieux on the following conditions:
(i) the listing price will be as recommended by Mario Lemieux; and
(ii) the parties shall accept any offer that is at least 95% of the listing price.
(d) Provided the mother is approved, the house shall be transferred into the mother’s name alone within 60 days of the appraisal. The cost of the transfer shall be shared by the parties.
- The equalization of the net family properties shall be addressed at a later date.
[14] After appearing on June 9, 2016, the parties agreed that the equity in the matrimonial home was $256,519 and that the father’s share for his equity was $128,260.
[15] The parties returned to court on August 18, 2016 to consent to an order that varied the father’s access, ordered further disclosure, set a timetable regarding the exchange of settlement conference briefs and appointed a lawyer to investigate the children’s wishes and to provide a written report to court.
[16] On October 13, 2016, the parties were back in court seeking contempt of court orders against each other. The mother sought an order that the father was in contempt for failing to transfer his interest in the matrimonial home pursuant to my order dated June 9, 2016. In reply the father sought an order finding the mother in contempt of court for failing to obtain the necessary financing to purchase his interest in the matrimonial home and sell the matrimonial home.
[17] At that time, Justice Labrosse dismissed both motions. Further, Justice Labrosse, considering Rules 2 and 16 of the Family Law Rules, O. Reg. 114/99, granted summary judgment in favour of the mother to dispense with the father’s consent to transfer his interest in the matrimonial home to the mother. At that time, Justice Labrosse identified that the father wished to satisfy the equalization payment by way of a pension transfer but that that issue should be reserved for the trial judge.
[18] The matrimonial home was transferred to the mother on November 3, 2016.
[19] On September 8, 2017, at a settlement conference, the parties entered into Partial Minutes of Settlement settling the issues of custody, access and support on a final basis. A final order will go as per the Partial Minutes of Settlement.
Father’s Claim for Occupation Rent
[20] The father seeks occupation rent of $1,100 per month from April 2015 until November 3, 2016 when the title in the matrimonial home was transferred. To support his request for $1,100 per month the father purported to file an Internet printout showing that the gross rental value for a home of similar size was $2,200 per month. I rejected the admissibility of an Internet printout. On the second day of the trial, the father returned with a report prepared by a real estate agent the night before to support the amount of occupation rent. I rejected the admissibility of that document for the reasons stated.
[21] The mother submits that I should not entertain any claim for occupation rent for two reasons. Firstly, there was no claim for relief in the father’s Answer nor was there any request at any time during the father’s evidence or during his submissions to amend his pleading and claim occupation rent. Secondly, there is no admissible expert evidence to provide an evidentiary basis upon which the court can determine the applicable rental value of the residence.
[22] The father’s position is that he raised the issue of occupation rent when he served an affidavit on August 16, 2016 at a motion. The father’s position was that he did not raise the issue of occupation rent before August 2016 because at all times the plan was that the mother would buy out the father’s interest in the matrimonial home. The father was frustrated that by August 2016 the mother had still not bought out his interest in the matrimonial home nor had he received his half of the equity.
[23] Pleadings are required to allow the parties to understand the issues that must be addressed during a trial. The father never sought to amend his pleading prior to, during or after the trial. Courts have refused to allow a party to claim occupation rent when the claim was not pled in the pleadings, as in Biding v. Biding, 2012 ONSC 2013.
[24] Further, the awarding of occupation rent is exceptional relief, as noted in Chowdhury v. Chowdhury, 2010 ONSC 781, and Malesh v. Malesh, [2008] O.J. No. 2207. In this case the mother paid all the home’s expenses without contribution from the father.
[25] I find that there is no claim for occupation rent properly before the court and even if there was, I find that the facts do not support an award being made. I find that there is no admissible evidence upon which to base a determination of the fair market rent applicable to that residence. I dismiss this claim for relief.
Equalization of the Net Family Property
[26] Both parties have provided net family property statements. The parties disagree regarding the value of the mother’s savings account with the Caisse Populaire Trillium at the time of separation.
Value of the Mother’s Savings with the Caisse Populaire Trillium
[27] The father originally disputed that the balance in the mother’s account on the date of separation was $21,048.66. He claimed it should have been more money, based on his evidence that he saw the mother’s computer screen in June 2014 and the balance was approximately $30,000. The father admitted that he was aware that this account was a joint account between the mother and her own father. In his closing submissions, the father’s position changed and he was prepared to accept that the amount was $21,048.66.
[28] However, at the beginning of the trial, based on the father’s position that he did not admit the balance in the account to be $21,048.66, the mother’s position was that the value of her interest in the joint account held with her father was $10,524, being half of $21,048.
[29] The mother testified that the account was opened between her and her father while she was in high school. She testified that both she and her father have the rights to withdraw and deposit money from the account, and takes the position that 50% of the value of the account should be attributable to her at the time of separation.
[30] I accept the evidence of the mother that this was a joint account between the mother and her father and consequently 50% of the value of the account should be attributable to the mother as of the date of separation. I find that the value of the mother’s interest in the account at the time of separation was $10,524.
[31] At the date of marriage, the value of this account was $5,639. As this was a joint account, I find that the mother had an interest in this account in the amount of $2,819.50 on the date of marriage.
[32] Based on my findings I calculate the equalization of the net family property as follows:
VALUE OF ASSETS OWNED ON VALUATION DATE
| ASSET | FATHER | MOTHER |
|---|---|---|
| Matrimonial home | $204,000 | $204,000 |
| Dodge Caravan | $1,800 | |
| Mazda Tribute | $8,222 | |
| Chequing | 504.79 | $356.17 |
| Savings | $18,036 | $2,813.52 |
| Pension | $331,759 | |
| RRSP | $7,879.78 | |
| Joint Savings | $10,524 | |
| TOTAL: | $556,099.79 | $233,795.47 |
VALUE OF DEBTS ON VALUATION DATE
| FATHER | MOTHER | |
|---|---|---|
| Mortgage | $75,740.50 | $75,740.50 |
| Mastercard | $570 | |
| Home Depot | $5,846.88 | |
| Visa | $204 | |
| Notional taxes RRSP | $1,418 | |
| Car loan | $11,688 | |
| Notional taxes pension | $63,698 | |
| TOTAL | $146,059.38 | $88,846.50 |
NET VALUE OF PROPERTY ON DATE OF MARRIAGE
| FATHER | MOTHER | |
|---|---|---|
| Joint Account | $2,819.50 | |
| Debt | -$21,958 | |
| Total | -$21,958 | $2,819.50 |
| TOTAL: | $124,101.38 | $91,666.00 |
VALUE OF PROPERTY OWNED ON VALUATION DATE
| FATHER | MOTHER | |
|---|---|---|
| Assets | 556,099.79 | $233,795.47 |
| Debts | 124,101.38 | $91,666.00 |
| Net family property | $431,998.41 | $142,129.47 |
| Difference | $289,868.94 | |
| Equalization payment | $144,934.47 |
[33] I find that the father owes the mother an equalization payment of $144,934.47.
Methodology of Satisfying the Equalization Payment
[34] The question of how the equalization payment is to be made is disputed between the parties. The mother submits that the equalization payment be satisfied by the father receiving a credit of $128,260, representing his equity in the home, and that the balance be paid by a transfer from the father’s pension plan grossed up at 15 % for income tax.
[35] The father seeks an order that the mother pay him $128,260, representing his equity in the matrimonial home, and that if she cannot pay this, the matrimonial home is to be sold.
[36] Once the equalization of the net family property is calculated, sections 9 and 10.1 of the Family Law Act, R.S.O. 1990, c F.3, provide the court with various options of satisfying the equalization payment, as follows:
9 (1) In an application under section 7, the court may order,
(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
[37] Section 10.1 (3)-(4) of the Family Law Act states:
10.1 (3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.
10.1 (4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:
The nature of the assets available to each spouse at the time of the hearing.
The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
Any contingent tax liabilities in respect of the lump sum that would be transferred.
The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.
[38] The passage of section 10.1 of the Family Law Act creates another method of satisfying the equalization payment, by dividing the pension at source through an immediate lump sum payment. This does not mean that there is a presumption that an equalization payment will be made by way of a lump sum transfer out of a pension plan. Rather, each case depends on its own facts (VanderWal v. VanderWal, 2015 ONSC 384).
[39] In Nadendla v. Nadendla, 2014 ONSC 3796, the court, in considering the relief available in section 10.1, made the following findings at paragraphs 18 to 22:
With respect to factors 1.and 2.the pension constitutes greater than 50% of the Applicant’s assets. If the pension is not divided at source, the Applicant will have to deplete virtually all his liquid assets. In the result, his assets will be tied up in the pension while all of the Respondent’s assets will be liquid. In contrast if the pension is divided at source both the parties will have a reasonable balance between liquid assets and savings for retirement.
With respect to factor 3. the funds would be transferred to a Locked In Retirement Account (“LIRA”) in the name of the Respondent.
With respect to factor 4. I am not advised of any contingent tax liabilities. In any event, any such liabilities would equally affect the Applicant.
With respect to factor 5. the Respondent has only modest savings. In this case, and in virtually all cases, it is desirable that the Respondent have resources to provide for her in retirement.
These factors strongly favour division of the pension at source and I so order. As such 50% of the Family Law Value of the pension shall be transferred to the Respondent plus applicable interest, if any. The Applicant shall forthwith complete all required forms to effect this transfer.
[40] Courts have considered various factors when considering whether the equalization payment is to be satisfied by way of a pension transfer:
i. where the employment pension was the most significant asset owned by the parties and it was the only method by which the applicant would realize the equalization payment owed to her, the court ordered a transfer by pension rollover (O’Kane v. O’Kane, 2013 ONSC 1617);
ii. where neither party had much in the way of liquids assets; over half of the wife’s net family property was related to her future pension; the pension was to be locked in for many years and not liquid in either party’s hands; the husband had no pension or provision for retirement savings; and if the pension was not divided at source, the wife would have to deplete almost all her liquid assets to satisfy the equalization payment, the court ordered equalization by way of a pension transfer (Spurgeon v. Spurgeon, 2016 ONSC 14);
iii. where the applicant’s pension constituted a great portion of her net family property, both parties were in their early 40s, and the court was satisfied that each of the parties would be able to meet their needs in retirement; and the equalization payment of $35,660 represented only one quarter of the net proceeds of sale which the wife was to receive upon this matrimonial home being sold, leaving her with over $100,000 to invest in a new home, the court refused to order the equalization satisfied by way of a pension transfer (VanderWal);
iv. where there was a young child residing with the pension holder; the pension transfer would require the non-pension holder to pay an equalization of $55,000 which could significantly impact the type of residence that she could afford; and a cash payment would require the pension holder to provide a small amount to satisfy the equalization and both parties would come out of the relationship at roughly the same amount of cash, placing them in equal liquidity, the court ordered a cash equalization (Jackson v. Mayerle, 2016 ONSC 72); and
v. the pension holder cannot force the other spouse to accept a deferred payment of a share of his pension to ease his own liquidity position in the face of the clear words of section 9(1) of the Family Law Act (Tupholme v. Tupholme, 2013 ONSC 4268).
[41] The mother’s understanding was that when the father transferred his interest in the matrimonial home to the mother, he would receive a credit for $128,260 against any equalization payment owing and that the balance would be paid by a pension rollover grossed up for income tax. The father submits that he never agreed to such an agreement.
[42] Both parties were represented by counsel at the motion on June 9, 2016 and were involved in drafting the agreement. The minutes of settlement dated June 9, 2016 deal with the equalization issue as follows:
The equalization of the net family properties shall be addressed at a later date.
[43] The interim minutes of settlement do not address how the father is to be paid his equity or how the transfer of his interest in the matrimonial home is to be addressed and in determining the payment of an equalization payment owed by the father to the mother.
[44] Since the separation, the father has been consistent in his position that he requested that the mother buy out his interest in the matrimonial home. The father’s evidence was that he needed his equity in the matrimonial home to purchase his own residence.
[45] When the parties entered into the minutes of settlement on June 9, 2016, they agreed that the father would transfer his interest to the mother but did not agree on the effect of such a transfer in the equalization calculation and payment.
[46] I find that the parties were not in agreement on how the equalization payment was to be made. I do not find that the parties agreed that the father would receive a credit for his part of the equity against the equalization payment. If the parties intended that result, the minutes of settlement should have addressed that issue. It did not. I find that the parties simply agreed to defer that issue to trial.
[47] The father’s financial statement dated September 13, 2017 indicates that he has a mortgage with the National Bank in the amount of $299,741 for the residence that he purchased in Rockland, Ontario. The monthly payment is $1,489.10 and he resides with a partner who contributes $800 per month towards the expenses.
[48] At the date of separation, the father’s liquid assets consisted of $504.79 in a chequing account, $18,036 in a savings account and debts of $6,620.88, leaving him with a positive balance $11,919.91.
[49] At the time of separation the mother’s liquid assets consisted of $356.17 in a chequing account, $2,013.52 in a savings account, $7,879.78 in a registered retirement savings plan and debts of $13,106, leaving her with a negative balance of $2,856.53.
[50] The combined liquidity of the parents that they had accumulated by the date of separation was $9,063.38. Other than the matrimonial home, the motor vehicles and the father’s pension, the parties had very few assets.
[51] The mother’s financial statements of May 10, 2017 indicate that the value of her share of the matrimonial home as of May 2017 was $204,000 and the balance of standing on her half share of the mortgage was $75,740.50. The mother did not produce any information as to the current outstanding balance of the mortgage. The father filed as Exhibit 6 a statement addressed to him dated October 6, 2016 from the mortgage holder, Tangerine, which indicated that as of October 6, 2016, the balance outstanding on the mortgage was $140,026.47 with a maturity date of March 21, 2017.
[52] Neither party provided, at trial, an update of the balance outstanding of the mortgage in September 2017. I find that the mortgage, which at the date of separation had an outstanding balance of $151,481, had been reduced by October 6, 2016 to $140,026.47.
[53] Without an agreement, the provisions of the Family Law Act are applicable. I have considered the following factors set out in the Family Law Act and the jurisprudence:
i. the father’s pension comprises 59% of his assets at the date of separation;
ii. at separation the two largest assets were the matrimonial home with equity of $256,519 and the father’s pension valued at $331,759;
iii. at separation, the parties’ total net liquid assets was $9,063.38;
iv. the father has always requested that he be bought out of his interest in the matrimonial home;
v. the father has purchased his own residence post-separation;
vi. the interim minutes of settlement do not assist either party in their position that either there is to be a credit for the father or the mother owes the father his equity in the home;
vii. the maximum transferable amount (“MTA”) under the terms of the father’s pension plan is $180,529.48 accumulated from July 19, 1999 to October 11, 2014.
[54] In the Preamble of the Family Law Act, the legislature recognized that marriage was a form of partnership and that one of the goals was to provide for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children.
[55] The Family Law Act’s primary goal is a division of assets that is fair to both spouses (Best v. Best, 1999 CanLII 700 (SCC), [1999] 2 S.C.R. 868).
[56] Both parents worked hard throughout their marriage and their largest asset, other than the father’s employment pension, was the matrimonial home.
[57] I find it unfair to the father that after 15 years of marriage he will leave the marriage with a pension that he cannot access for years as his main asset. In balancing the parties’ interests, I order that the equalization be paid by a pension rollover. This decision, in my view, is in keeping with the Family Law Act’s primary goal that the division of assets be fair to both spouses.
[58] The father shall pay the equalization payment to the mother in the amount of $144,934.47 – which should be grossed up by 15% for income taxes totalling $21,740.17 for a total of $166,674.64 – by way of a rollover pursuant to the provisions of the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II.
Father’s Request to Sell the Matrimonial Home
[59] In the father’s pleading he sought the sale of the matrimonial home. Subsequent to separation the father agreed to transfer his interest to the mother. He subsequently refused to sign the transfer documents and the court ordered that his consent be dispensed with.
[60] The father now seeks an order that the mother pay the father the sum of $128,560, failing which the matrimonial home is be sold. As a result of the transfer of the father’s interest in the matrimonial home, the father is no longer a co-owner of the matrimonial home.
[61] The Family Law Act contains the following provisions:
7 (1) The court may, on the application of a spouse, former spouse or deceased spouse’s personal representative, determine any matter respecting the spouses’ entitlement under section 5.
9 (1) In an application under section 7, the court may order,
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
[62] The court’s power to order sale of a property here is contingent on there being an equalization order requiring satisfaction. In Buttar v. Buttar, 2013 ONCA 517, at para. 53, the Court of Appeal held that “the transfer power under section 9 is specifically connected to the satisfaction of the order for the equalization of net family properties rather than a general transfer power for the settlement of disputes arising from marital breakdown” (emphasis in original).
[63] Aside from only being triggered by an equalization payment, an order under section 9(1)(d) is also a matter of the trial judge’s discretion: Thibodeau v. Thibodeau, 2011 ONCA 110, at para. 42. The Court of Appeal held in Thibodeau that:
- The onus is on the party seeking such an order, and as a general rule the court's discretion will only be exercised in favour of a s. 9(1) order where it is established – based on the targeted spouse's previous actions and reasonably anticipated future behaviour – that the equalization payment order granted will not likely be complied with in the absence of additional, more intrusive provisions. [Footnotes omitted.]
[64] In Buttar, the Court of Appeal noted that such orders require a proven concern that the equalization payment will not be honoured (para. 56). If the evidentiary record does not disclose any such concern, then an order for partition and sale may not be appropriate.
[65] Outside the context of an equalization order, the court may order sale of property under section 10(1):
10 (1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,
(c) order that the property be partitioned or sold for the purpose of realizing the interests in it …
[66] In this case, there is no issue as to who is the owner. It is the mother. I find that the provisions of the Family Law Act do not apply in this case.
[67] Under the Partition Act, R.S.O. 1990, c. P.4, sections 2 and 3(1) provide as follows:
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3 (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.
[68] The provisions themselves apply for tenants in common and joint tenants. The mother no longer is a co-owner and does not fall into any of the categories of section 2. Further, the father does not qualify as a person “interested in land” under section 3, as that definition is “limited to those who have possession, or an immediate right to possession, of the land” (Economopoulos (Re), 2014 ONCA 687, at para. 87). The father has no such rights.
[69] I find that the father’s entitlement to the sum of $128,560 is as a result of a post-separation adjustment. I find that on the facts, I cannot order the sale of the matrimonial home to enforce the payment of the post-separation adjustment as it is not related to the equalization payment which the father, not the mother, has to make by way of a pension rollover.
The father’s request that the mother deposit $25,000 to $30,000 in a Registered Education Savings Plan for the children
[70] The father seeks an order that the mother deposit between $25,000 and $30,000 into a registered education savings plan that he will administer for the postsecondary educational expenses of the children. The mother opposes such relief.
[71] I dismiss this claim because it was not pled by the father at any time in this case and there was no evidence provided by the father regarding this issue during the trial. As there is no legal or factual reason to award this relief, I dismiss the father’s request.
The father’s request that he have no liability regarding the former mortgage on the matrimonial home with Tangerine or with any municipal taxes owing to the City of Ottawa
[72] The father was concerned that he still has liability on the Tangerine mortgage and that he still has liability with the City of Ottawa regarding municipal taxes. The mother testified that since the property been transferred into her name she has assumed full responsibility for any past, present or future to tax arrears and mortgage payments.
[73] The mother agreed to provide a letter from Tangerine confirming that the father has no liability for any mortgage related to 1570 Rumford Drive, Ottawa, Ontario and to provide a copy of the most recent tax bill, with both documents to be delivered within 30 days of September 21, 2017.
Life Insurance
[74] The parties settled this issue pursuant to the Partial Minutes of Settlement dated September 8, 2017, which provided as follows:
Lionel shall maintain life insurance of at least $200,000 naming Julie as beneficiary in trust for the children as long as he has an obligation to pay support. The amount may be varied in the event child support is not payable for any child. Julie will maintain $140,000. The party will include the usual life insurance clause in the order.
[75] Counsel for the mother prepared a draft order based on the Partial Minutes of settlement which did set out the life insurance paragraphs. The father agreed with the draft except paragraph 17(d):
(d) When Lionel dies, his estate will pay the child support as if he were alive until Julie receives the insurance proceeds.
[76] I agree with the father that this clause is not necessary to secure his obligation to pay support in the event of his death and will not include it in the final order.
[77] Consequently the life insurance provision should be as follows:
Lionel owns or has an interest in a policy of term life insurance with Assurance Chevaliers de Colomb, Policy Number 04051246, in the amount of $400,000 (the “policy”). Lionel will pay all policy premiums when due. If he does not and Julie pays any premiums, interest or penalties to prevent the lapse of the policy, those amounts will be considered lump sum child support and enforceable against Lionel. If the policy lapses because Lionel failed to pay the premiums, Lionel will also pay Julie all necessary costs incurred by her to reinstate the policy.
As long as Lionel is obligated to pay child support to Julie,
a. Lionel will:
(i) keep the policy in force;
(ii) not borrow against the policy and ensure that the policy remains unencumbered; and
(iii) irrevocably designate and maintain Julie as the beneficiary in trust for the children of $200,000 of the proceeds of the policy
as security for Lionel’s child support obligations outstanding as at the date of Lionel’s death.
b. Lionel shall:
(i) provide Julie with a copy of the policy and the irrevocable beneficiary designation; and
(ii) authorize Julie to confirm directly with his insurer that the policy is unencumbered and in force.
c. If Lionel’s policy cannot be maintained for any reason, he will immediately obtain replacement coverage at a reasonable cost, ensuring no gap in coverage. If Lionel learns that there may be a change in insurance coverage, he shall advise Julie of the proposed change in coverage and the reason for the change.
d. If the policy or the full amount of the policy is not in force on Lionel’s death:
(i) there shall be a lien and first charge against Lionel’s estate for the full amount of the policy proceeds; and
(ii) all of Julie’s rights and remedies against Lionel’s estate are preserved.
e. The amount of the insurance required shall be reviewed in the event that child support is not payable for any of the children.
- Julie shall maintain life insurance in the amount of $140,000 naming Lionel in trust for the children. All of the above clauses regarding Lionel’s life insurance shall equally apply to Julie’s life insurance.
Disposition
[78] I order:
a. the father’s claim for occupation rent is dismissed;
b. the father shall pay the equalization payment to the mother in the amount $166,674.64 by way of a rollover pursuant to the provisions of the Pension Benefits Division Act;
c. the mother shall pay the father the sum of $128,560, with interest accruing at 3% effective September 1, 2017;
d. the father may register a charge against the matrimonial home as security for the payment of $128,560 plus interest owed by the mother to the father;
e. the father’s request that the mother deposit between $25,000 to $30,000 into a Registered Education Savings Plan is dismissed;
f. the mother shall provide a letter from Tangerine confirming that the father has no liability for any mortgage at related to 1570 Rumford Drive, Ottawa, Ontario and provide a copy of the most recent tax bill, with both documents to be delivered within 30 days of September 21, 2017; and
g. paragraph17(d) of the draft order shall not be included in the order.
Costs
[79] If the parties are unable to resolve the issue of costs related to the issues in this trial, the father shall provide his written cost submissions, not to exceed three pages, plus any offers to settle and a detailed bill of cost, by January 12, 2018. The mother shall file her written cost submissions, not to exceed three pages, plus any offers to settle and a detailed bill of costs, by January 26, 2017.
Mr. Justice Mark Shelston
Released: December 20, 2017
CITATION: Fortier v. Lauzon, 2017 ONSC 7503
COURT FILE NO.: FC-15-790
DATE: 2017/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Lionel Fortier, Applicant
AND
Julie Lauzon, Respondent
BEFORE: Shelston J.
COUNSEL: Self-Represented, counsel for the Applicant
John Summers, counsel for the Respondent
REASONS FOR JUDGMENT
Shelston J.
Released: December 21, 2017