COURT FILE NO.: FS-14-392534
DATE: 20180523
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHREEMATTIE PERSAUD
Applicant
– and –
RAVISHANT PERSAUD
Respondent
In Person
In Person
HEARD: November 20, 21, 22, 23, 24, 2017
kristjanson j.
[1] The applicant Shreemattie Persaud and the respondent Ravishant Persaud were married on April 1, 1999 and separated on May 9, 2013 when Mr. Persaud left the matrimonial home. Their two children are 10 and 15 years old.
[2] During the marriage Mr. Persaud was the higher income earner, although Ms. Persaud had her own business as a consultant and worked full-time. Following a significant health crisis in October 2015 he went on short term disability. Following emergency surgery on January 2, 2016, after exhausting short term disability, Mr. Persaud transitioned to and remains on long term disability insurance. Mr. Persaud pays child support based on his long-term disability income; Ms Persaud requests that child support be paid on his pre-disability income.
[3] The parties were assisted by a full-time nanny during the marriage. After separation the children resided with Ms. Persaud, who has sole custody, in the matrimonial home (Hallsport). Ms. Persaud continued to work and the children continued in after school child care; a claim is made for retroactive and prospective section 7 expenses including child care.
[4] During the marriage Mr. and Mrs. Persaud owned two income properties, Whitburn and Tavistock, as joint tenants, and the matrimonial home. After separation in 2013, the applicant remained in the Hallsport marital home with the two children and the husband occupied part of Tavistock. All three properties were transferred after separation pursuant to consent orders, although issues remain regarding post-separation adjustments. Custody and access issues were settled prior to trial, as well as some financial issues.
[5] Both parties were represented by counsel until the spring of 2017, and were self-represented at the trial. This is a high-conflict couple; the children do not see their father, and the parties have not been able to resolve issues except through the family court process.
Issues
[6] The following issues were raised at trial:
Income of the Parties
(1) What is the respondent’s income, and what is the applicant’s income, for child support purposes;
Child Support
(2) How much should the respondent pay the applicant for table child support;
(3) How much does the respondent owe the applicant for retroactive section 7 expenses from May 9, 2013;
(4) How are prospective section 7 expenses to be allocated;
Spousal Support
(5) Is the respondent entitled to receive spousal support, and if so how much and for how long;
(6) Is the applicant entitled to receive spousal support, and if so, how much and for how long;
Miscellaneous
(7) Can Mr. Persaud be required to make a lump sum RESP contribution;
(8) Is respondent required to designate Ms Persaud rather than the children as beneficiary of his life insurance to secure his child support obligations;
Post-Separation Adjustments
(9) What amounts are owed, to whom, for post-separation adjustments;
Equalization
(10) What amount is owed, to whom, for equalization of net family property.
Issues Resolved Prior to Trial
[7] A number of issues were resolved before trial; relevant portions of the orders are set out below.
May 12, 2014
[8] By order of Justice Goodman dated May 12, 2014, the court ordered on consent that:
(a) commencing on June 1, 2014 Mr. Persaud would pay $1,740 a month table child support for both children based on his income of $126,472 on a temporary, without prejudice basis;
(b) commencing on June 1, 2014, the parties would equally contribute to the section 7 expenses which were agreed to be daycare and piano, on a temporary without prejudice basis. The applicant was to provide receipts;
(c) there was a disagreement as to arrears of table child support. The respondent was to pay at least $10,400 on or before date of equalization;
(d) the respondent was to continue to designate the applicant as trustee of the children as beneficiaries of his life insurance until further order of the court;
(e) the parties were to jointly retain a real estate appraiser to appraise all 3 properties jointly owned as of May 12, 2014;
(f) on a final basis the parties divided the contents of the matrimonial home to their mutual satisfaction save and except for a bicycle and work tools belonging to the respondent. Neither party shall list any assets for contents on their respective net family property statements;
(g) the order bears interest at a rate of 3% per annum effective from the date of the order; where there is default payment, the payment in default shall bear interest only from the date of the default.
March 25, 2015 Consent Order
[9] On March 25, 2015 parties entered into a further consent order before Justice Goodman. The parties agreed that by April 30, 2015 the Tavistock property would be transferred to the respondent and the Whitburn property to the applicant. Each was to be solely responsible for the mortgage and other expenses thereafter, and the other party would be removed from title and the mortgage. It was also agreed the matrimonial home, Hallsport, would be transferred to the applicant, the respondent would be removed from the mortgage, and adjustments would be made. The parties did not follow the Order, and the properties were not transferred until January, 2017.
January 23, 2017 Minutes of Settlement and Order
[10] By order of Justice Paisley dated January 23, 2017 the Hallsport and Whitburn properties were transferred to Ms Persaud and the Tavistock property was transferred to Mr. Persaud effective January 31, 2017. This was almost two years after the agreed April 30, 2015 transfer date set out in the consent order of Justice Goodman on March 25, 2015. The payment was to be subject to further adjustments between the parties other than the fair market value of the properties.
[11] Commencing January 1, 2017, the husband would pay monthly table child support in the amount of $1,023, based on the husband’s income of $68,969, with a support deduction order and interest at 2% per annum on payments from date of default.
March 8, 2017
[12] By consent order of Justice Kiteley dated March 8, 2017, the applicant was granted sole custody of the children with access to be arranged between the parties.
[13] The court separately ordered that the director of the Family Responsibility Office suspend the enforcement of the order of Justice Goodman dated May 12, 2014, subject to the determination of the correct amount of child support payable by the respondent prior to 2017.
September 13, 2017 Order
[14] By order of Justice Backhouse, issued on consent September 13, 2017, the parties agreed on a number of issues:
(a) child support arrears owed by Mr. Persaud were fixed at $8,500;
(b) Mrs. Persaud owed Mr. Persaud $113,000 to equalize the values of the 3 properties already transferred, without prejudice to adjustments each claims for rent and carrying costs since separation;
(c) Vehicles were equalized by the payment of $8,013 owed from Mr. Persaud to Ms Persaud.
Income of the Parties for Child Support and Section 7 Expenses
[15] The applicant’s income is derived from a wholly owned, sole purpose personal billing corporation, NSP Project Consulting Inc. The respondent is on long-term disability, and his income has decreased significantly since date of separation. They had income and losses from the two rental properties as well. Justice Kiteley encouraged the parties to jointly retain an expert, but they did not do so. Neither party adduced expert evidence except a valuation of the husband's pension.
[16] The fundamental objective of the federal Child Support Guidelines (CSG) is to ensure fairness to both spouses, and to their children, in determining what amount of money is in fact reasonably available for the payment of support: Mason v. Mason, 2016 ONCA 725. I consider this guiding principle in determining the incomes of each party for child support purposes (section 7 expenses, and table child support by the respondent).
Mr. Persaud’s Income for Child Support Purposes
[17] Mr. Persaud was the higher-income earner until a significant health crisis in October 2015 and surgery in January, 2016. He is presently on long-term disability. His annual long-term disability income is $68,964. He testified as to the nature of health crisis, and gave evidence that his heart problems will prevent his return to work. He called no medical evidence, and there is no evidence other than his testimony as to his prognosis or ability to return to work. Ms Persaud was aware of the health crisis, although she now takes the position that even though he is on long term disability, his income for child support and section 7 purposes should be calculated on the basis of his pre-disability earnings.
[18] Mr. Persaud’s income has been primarily from employment, other than the rental income, and now LTD. Section 16 of the CSG provides that generally, a spouse's annual income is determined using the "Total Income" from line 150 of the T1 General CRA form, adjusted in accordance with Schedule III. I see no reason to depart from this in the case of Mr. Persaud, and there is no basis for the argument that child support should be set on a pre-disability income as argued by Ms Persaud, since he has been on disability since October, 2015 and is anticipated to remain on disability.
Rental Income/Losses and Calculation of Annual Income
[19] Mr. and Ms Persaud jointly owned two income properties from date of separation until they were transferred in January, 2017, with Ms Persaud gaining the Whitburn property in addition to the Hallsport matrimonial home, and Mr. Persaud the Tavistock property, part of which he occupies. There has been an ongoing dispute about the income and expenses of the properties.
[20] I set out information from Mr. Persaud’s personal tax returns below:
| Year | Total Income Line 150 | Rental Income (Loss) | Losses Apportioned 50% |
|---|---|---|---|
| 2016 | 34,881 | (13,639) | (6,820) |
| 2015 | 117,485 | (10,559.59) | (5,280) |
| 2014 | 122,455.45 | (5,169.02) | *parties claimed 50% each |
[21] The evidence is that there were net losses for the Whitburn and Tavistock income properties from date of separation in May, 2013 until date of transfer in January, 2017.
[22] In this litigation, Mr. Persaud seeks repayment of 50% of the post-separation expenses relating to the rental properties, which I grant. The evidence before me is that Mr. Persaud paid all of the expenses on the jointly owned rental properties after separation. As discussed below, I find that he is entitled to repayment of 50% of the expenses on the jointly owned properties until the date of transfer. Mr. Persaud declared all of the income and expenses for the jointly owned properties on his taxes in 2015 and 2016. Both parties claimed the income and expenses in the 2014 tax return.
[23] The transfer of the properties ultimately occurred in January, 2017. Ms Persaud’s evidence is that since she began managing the Whitburn property there are no losses. As a result, I accept based on her evidence that she will not be incurring losses in the future. There is no evidence of the profits on the Whitburn property. For the purposes of establishing income, then, I attribute neither gain nor loss, and on the evidence, regard ownership of the Whitburn property as neutral for the purposes of determining income for child support purposes.
[24] Mr. Persaud’s evidence is that he lives in part of the Tavistock property now, but a part of the property continues to be rented out. There is no evidence on which I can find that on a go forward basis, he will have either income or losses from the property. For the purposes of establishing income, then, I attribute neither gain nor loss to the Tavistock property, and on the evidence, regard ownership of the Tavistock property as neutral with respect to determining income for child support purposes.
Conclusion re Mr. Persaud’s Income
[25] Because he is on long term disability, and will now manage only one income property which I find neutral as to income on the evidence before me, I accept the submission of Mr. Persaud that so long as he is on long term disability, his income for child support purposes will be the amount of his long term disability income, $68,964. I order the parties to exchange income tax information annually by August 1, so that child support obligations and section 7 expenses can be adjusted. Mr. Persaud is to advise Ms Persaud within 30 days if he returns to work, and shall provide financial information about the terms of employment at that time.
Applicant’s Income
[26] The applicant is a project manager. She derives her income through a personal corporation, NSP Project Consulting Inc. (“NSP”). Ms Persaud is the sole shareholder of NSP. Her evidence is that except for a period in 2013 when her sister billed through NSP, she is the only person working for NSP. Ms Persaud’s income is relevant to the determination of section 7 expenses.
[27] I set out below a summary of relevant information regarding Ms Persaud’s income as reflected on personal income tax returns for the last three years (see Line 150 and child care deduction); the remainder of the information is from the NSP unaudited balance sheets prepared by accountants on the basis of information provided by Ms Persaud:
| Year | Line 150 | NSP Gross Revenue | NSP Net Post-Tax Income or Loss | Salaries and Management Fees | Automobile Expenses | Home Office | Promotion |
|---|---|---|---|---|---|---|---|
| 2016 | 82,720 | 124,351 | 4,386 | 84,544 | 22,247 | 1,695 | 3,217 |
| 2015 | 86,384 | 117,024 | 8,470 | 84,480 | 12,346 | 1,662 | 2,136 |
| 2014 | 90,830 | 132,509 | (256) | 109,426 | 11,730 | 1,629 | 2,577 |
| Average | 86,645 | 124,628 | 4,200 | 92,817 | 15,440 | 1,662 | 2,703 |
| 50% | 7,720 | 831 | 1,352 |
[28] As discussed below, I find Ms Persaud’s income to be the average of the last three years of the salaries and management fees paid by NSP, plus 50% of automobile, home office and promotion expenses, or $102,720 annually.
[29] Ms Persaud’s position was initially that her income should be based on line 150 of her 2016 income tax return. Her evidence at trial was that her automobile expenses were run through the corporation, but agreed she benefitted personally from this. While Ms Persaud testified generally that the expenses claimed for marketing were necessary to run the business, she did not provide any particulars or evidence with respect to the nature of the expenses and their role in the business beyond the bald assertion they were necessary for her business. In closing submissions, she argued that her income should be set at the 2016 Line 150 level of $82,720, with 50% of the NSP automobile expense deduction of $22,247, for a total of $93,843.
[30] Mr. Persaud argued that since this is a wholly owned corporation, and all expenses are run through the corporation where ordinary T4 employees cannot claim such expenses, Ms Persaud’s income should be set at the gross revenues of NSP. He also argued that the income should be averaged. Mr. Persaud submitted that Ms Persaud’s average income should be set based on gross revenues of NSP in the period 2012-2016, in the annual averaged amount of $128, 246.
[31] Since the parties are self-represented, I provided some guidance as to legal issues that had arisen on the evidence and I requested specific submissions. I provided the parties with copies of the Federal Child Support Guidelines, ss. 7 and 15-20, as well as the Schedule III adjustments to income relevant to section 16 of the Guidelines. Section 16 provides that generally, a spouse’s annual income is determined using the “Total Income” from line 150 of the T1General CRA form, adjusted in accordance with Schedule III.
[32] Ms Persaud’s income is solely derived from a wholly owned corporation, which functions as a billing corporation for her project management consulting work.
[33] Ms Persaud included rental income/losses from the Whitburn and Tavistock properties on her personal tax return in 2014, claiming a net loss of $5,169.02 in 2014. In 2015 and 2016 she did not reflect rental income or losses on her personal returns.
[34] Having reviewed the evidence, I am of the view that the Guidelines s. 16 method of determining annual income is not the fairest determination of that income (s. 17), and does not fairly reflect all the money available to Ms Persaud for the payment of child support (s. 18). Pursuant to Section 17(1) of the Federal Child Support Guidelines:
If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
[35] As stated by Justice Sherr in MacKenzie v. Flynn, 2010 CarswellOnt 3450 (Ont. C.J.) at para 15:
Self-employed persons have the onus of clearly demonstrating the basis of their net and professional income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes…This principle also applies where the person's employment income is derived from a corporation that he or she fully controls.
[36] Section 18 of the CSG provides:
18(1) Shareholder, director or officer
Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
18(2) Adjustment to corporation’s pre-tax income
In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
[37] The court may consider pre-tax corporate income, together with line 150 income over the previous 3 years to determine income if the court is of the view that the line 150 income of the payor does not adequately reflect income. Ms Persaud is the sole shareholder of a corporation, which is a sole-purpose billing corporation for the applicant’s project management work. Her evidence is that except for a period in 2013, when her sister was paid through NSP, she was the only biller. The revenues generated from consulting fees of the applicant are substantially higher than her line 150 income reflects. The amounts payable in salaries and management fees are higher than her line 150 income, and no explanation has been given. Pursuant to s. 18(2) of the CSG, I use the salaries and management fees instead of the line 150 income as a starting point because of this discrepancy.
[38] The onus of proving the validity of a deduction lies on the person claiming the deduction: see Pollitt v. Pollitt, 2010 ONSC 1617 at paragraph 128. I have identified three deductions of concern. There are significant corporate automobile expenses which the applicant admits are to her benefit. Indeed, Ms Persaud sought to claim gas and parking expenses of $38,400.00 as section 7 expenses at trial. There was no evidence as to what percentage of automobile expenses were included as part of her personal income (as a taxable benefit), and I cannot find that in any of the written materials. Since she is the only person working for the corporation, the home office expense enures to her benefit, as do promotional expenses (including meals). There was no explanation or justification given for any of the expenses taken as deductions, no supporting documentation, and no expert report. When challenged by the respondent in cross-examination with respect to meals and promotion expenses, her explanation was that networking was important.
[39] Ms Persaud also gave evidence and submissions that she has been borrowing money from the corporation to pay legal expenses relating to the family lawsuit, which is part of the shareholder’s deficiency. This demonstrates the close relationship between Ms Persaud and the corporation.
[40] The corporation year end is July 31; I have not been provided any evidence as to how this could be adjusted for a December 31 year end. No information was provided as to NSP’s income or deductions from August 1, 2016 to December 31, 2016. In the circumstances, I have no choice but to use the July 31 statement of income and deficit for each year as the annual income for that year.
[41] Using a 3 year average to account for fluctuation in revenues as testified to by Ms Persaud, allocating to her the average of salary and management fees, and 50% of the average automobile, home office and promotional expenses paid by NSP over the three year period, I find her pre-tax income for child support (section 7) purposes to be $102,720.
Conclusion: Child Support and Allocation of Section 7 Expenses
[42] The table amount for child support for two children is $1,023 for the period up to November 21, 2017, and $1,051 per month after that time due to a change in the table support amount. Mr. Persaud is presently paying the table amount monthly through FRO. Ms Persaud has requested that support be paid the 1st of the month. Table support shall be payable on the 1st day of the month, commencing June 1, 2018, and the existing support deduction order will be amended with respect to date of payment.
[43] Section 7 expenses are to be allocated between the parties based on their income determined for child support purposes. Ms Persaud’s income is $102,720, and Mr. Persaud’s income is $68, 964. Prospective section 7 expenses are allocated 67% to Ms Persaud and 33% to Mr. Persaud.
Section 7 Expenses
[44] Ms Persaud started the trial claiming $93,032 for retroactive section 7 expenses from the May, 2013 separation date to trial, proposed to be allocated 50% to each party. The claim included amounts clearly not eligible as section 7 expenses.
[45] Special and extraordinary expenses are governed by s. 7 of the Federal Child Support Guidelines, SOR/97-175. Under s. 7(1) of the Guidelines, the court may make a child support order to cover all or any portion of a child's special or extraordinary expenses, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child, and to the family's spending pattern prior to separation.
[46] Pursuant to s. 7(2) of the Guidelines, “[t]he guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child”.
[47] An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount. The framework is as follows as set out in Titova v. Titov, 2012 ONCA 864 (Ont. C.A.):
Does the expense fall within the enumerated categories of special or extraordinary expenses?
Is the expense necessary in relation to the child’s best interests?
If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, are the expenses “extraordinary”?
Is the expense reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?
Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account? The payor is only required to pay the after-tax amount of the expense (see: K.H. v. T.K.R., 2013 ONCJ 418.)
[48] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances: Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695, (Ont. C.A.). Expenses for usual or ordinary extracurricular activities are included in the table amount of support: Park v. Thompson, [2005] O.J. No. 1695, (Ont. C.A.); Kase v. Bazinet, [2011], ONCJ 718.
Piano
[49] Piano lessons for the two children since separation have been $9,200. Mr. Persaud consented to pay his proportion of piano expenses on a 50/50 basis, , and Ms Persaud agreed to this. As a result, order to go for payment by Mr. Persaud of 50% piano expenses of $9,200, for a total of $4,600.00, plus interest calculated from the date of default following the provision of receipts, at 3% annually commencing June 1, 2014 in accordance with the Consent Order of May 12, 2014. I have not been provided with the date of each receipt nor the relevant interest calculations.
Child Care
[50] Ms Persaud initially claimed child care expenses in the amount of $31,557 from separation to trial. There are a number of adjustments to be made.
[51] Nanny Care and Severance: Ms Persaud claimed the cost of the long-term nanny for May and June, 2013 at $1,200 per month. The nanny was fired by Ms Persaud and did not provide child-care in June. There is a letter in the exhibits that purports to be from the nanny stating that $1,200 received in June was “severance”. There was no oral evidence of the requirement for severance, nor argument that in the circumstances, one month of “severance” is a necessary or reasonable child care expense. There was no contract with the nanny introduced in evidence, and she did not testify. I allow the $1,200 claim for May, 2013, net of tax, to be paid 50% by Mr. Persaud ($600, to be adjusted for the child care deduction available to Ms Persaud as discussed below), but I disallow the claim for June, 2013 nanny severance.
[52] Maternal Grandmother and Airplane Ticket: Ms Persaud claimed for care provided by her mother for June, July and August of 2013 at $1,200 per month, and the cost of her mother’s airline ticket at $800.00. The cost of the airline ticket is not an eligible expense. The grandmother did not testify. There is no evidence as to the nature and type of child care provided by the grandmother. This is an “inexact” child care arrangement.
[53] Mr. Persaud does not agree that the grandmother should be paid. He testified that while the grandmother had from time to time provided babysitting to the children in the past, and had been given money, this was not payment for child care, but helping out by family members.
[54] The question of whether child care services provided by family members will qualify is a complicated one. As stated by Justice Barnes in Sage v. Sage, 2014 ONSC 1330 (SCJ) at paras. 14-15:
[14] …[C]hild care services provided by a family member will usually not attract any remuneration, unless the circumstances dictate otherwise. To determine whether the circumstances warrant remuneration and financial contribution by the parents, the overriding consideration is whether, in all the circumstances, child care provided by the family member, is in the best interests of the children and whether it is reasonable to provide financial compensation, to the family member, for providing those services.
[15] Such an analysis warrants the consideration of a series of factors, some of which include:
(a) Why is the child care service necessary?
(b) Is it in the best interest of the child for child care services to be provided by the family member?
(c) Was child care provided by the family member prior to separation?
(d) Did the family member receive any compensation for child care services provided prior to separation?
(e) Will the child care services be provided solely by the family member or will there be other persons assisting with the activity?
(f) Will the family member provide child care services as part of normal, inevitable, family interaction or do special arrangements have to be made to facilitate the activity?
(g) Is the family member foregoing employment or other activity to provide the child care?
(h) Is the provision of child care the dominant activity or is it ancillary to normal, inevitable family interaction?
(i) Does the family member have some special child care qualifications?
(j) What type of child care services will be provided? Will the services be the same as a structured day care service or will the service be similar to a babysitting service?
(k) Will the provision of child care service be the dominant service or will it be intermingled with caring for other family members?
(l) How were the amounts charged for child care expenses arrived at? Is it based on speculation or based on some objective basis?
(m) What is the nature of the financial relationship between the parties?
(n) Given the nature and circumstances of the family relationship, is financial compensation a reasonable expectation?
(o) Are the time periods for which financial compensation is expected defined or open-ended?
(p) Are the child care expenses claimed reasonable in all the circumstances?
(q) What is the ability of the parents to pay for the child care expenses?
(r) This is not an exhaustive list; the circumstances of each case will dictate which constellation of factors will be determinative.
[55] There was very little information on any of the relevant factors as set out above that would enable me to conclude that the claim for the grandmother’s care was necessary and reasonable; whatever care was provided was not explained. It appears that Ms Persaud is simply invoicing at the same rate she paid for the long term nanny. Given the lack of evidence, I disallow this claim.
[56] Before and After School Program: Ms Persaud claims expenses for Rippleton Roadsters Child Care for both children in the before and after school program, which does not operate in July and August. She claims expenses for 2013 of $2,468; 2014, $6,170; 2015, $7,251.50, 2016, $4,762, and 2017, $3,105, for a total of $17,089.50. Mr. Persaud disputes the expenses once the older daughter reached the age of 15 and could care for her sister. I find daycare to be a reasonable expense, regardless of the older sister, as there was no evidence of the ability or willingness of the older daughter to drop off and collect her sister from school every day. There is evidence that the older daughter takes the TTC to school. As such, I allow the expense. Mr. Persaud owes Ms Persaud 50% of net child care expenses to December, 2015, the gross amount of which is $17,089.50.
[57] Child Care Deduction: Section 7(3) of the Guidelines provides that in determining the amount of the expense to be paid, the court is obliged to take into account any subsidies, benefits or income tax deductions or credits that are available relating to the expense and any eligibility to claim for these benefits. Mr. Persaud is responsible for contributing to the net amount of the child care expense, which takes into account the child care deduction available to or taken by Ms Persaud: Bennett v. Bonatsos, 2014 CarswellOnt 2417 (SCJ). Ms Persaud claimed a child care deduction of $5,547 in 2014 and $7,251.50 in 2015, for a total deduction of $12,798.50. Mr. Persaud owes 50% of the net remaining cost, $4,291, or $2,145.50, with interest at 3% annually from date of default in accordance with the Consent Order of May 12, 2014. From January, 2016 onwards, Mr. Persaud owes Ms Persaud 33% of the gross $7,867.50, to be adjusted for the income tax deduction taken by Ms Persaud. For 2016, the child care deduction was $4,762.50; I have no information regarding the 2017 income tax deduction, and on the evidence before me direct that Mr. Persaud pay 33% of $3,105, which is $1,024.65, with interest at 3% annually from date of default in accordance with the Consent Order of May 12, 2014.
[58] I have not been provided with interest calculations.
[59] Summer Babysitter: Ms. Persaud claims $1,000 for summer babysitting in 2014. The notation on her spreadsheet is “$1000.00 paid to Nina for trial.” There is no receipt in the materials, no evidence as to the nature of care provided, the number of hours, nor the full name of the caregiver. In the absence of any evidence, I find this is not an eligible section 7 expense.
Ms Persaud’s Holidays with the Children
[60] In her opening statement and her evidence, Ms Persaud claimed as section 7 expenses her trip with the children to Punta Cana in 2016 ($1,990); Disney in 2015 ($3,000); and Quebec and Montreal in 2014 ($2,000). After I distributed the section 7 Guidelines, Ms Persaud abandoned this claim in her closing argument. Holiday trips with children do not fall within the section 7 Guidelines. These claims are disallowed.
Ms Persaud’s Parking
[61] Ms Persaud initially claimed gas and parking expenses of $38,400 as section 7 expenses. She testified that the cost of approximately $800 a month was necessitated by the fact that in order to take her children to school, she used the car and then would park at the site where she would be working on that day.
[62] All parents have to change their lives once they have children. Many struggle with the drop-off/pick-up associated with childcare, school, and work. However, parking, gas and related automobile expenses are not eligible section 7 expenses. They are neither necessary nor reasonable to claim in relation to child care under the Child Support Guidelines. They are not an eligible expense, and I disallow this claim.
[63] I note that for this entire period, Ms Persaud was running automobile expenses through her company, and there is no evidence as to how the benefit she received from the company relates to what she now claims as section 7 expenses. This is relevant as to the reasonableness of the claim when assessing costs.
Girls’ Bedroom Furniture
[64] Ms Persaud claims $725 as bedroom furniture for the girls. This is not an allowable section 7 expense.
Epipens
[65] Ms Persaud claims $222.85 as the cost of Epipens in the period May 2013 to November 2017, 55 months, at an average cost of $4.05 per month, or $48 per year. Epi-pens are a health-related expense. However, the CSG provides in s. 7(1)(c) that only health-related expenses that exceed insurance reimbursement by at least $100 annually are eligible expenses, and the cost here does not meet that threshold.
TTC Passes
[66] Ms Persaud claims $585 for a TTC pass for 13 months for her eldest daughter’s travel to high school. This is an average cost of $45 per month. Many children in the Toronto region must take public transit to travel to school. Taking into account the section 7 test, and given the amount of the expense in relation to the budget of the recipient including child support, I do not find this to be a necessary or reasonable claim as an extraordinary expense for education, but rather an ordinary expense which the recipient parent, given her level of income and child support, is expected to meet out of her normal budget.
School ski trip
[67] Ms Persaud claims $175 for one of her children to attend a school ski trip, with no receipts. Mr. Persaud consents to the claim, 50% of which is $87.50.
Gymnastics and Hockey
[68] Ms Persaud submits a claim from 2015 in the amount of $801.15 for enrolment of each of the girls in a gymnastics class from February to June 2015. Mr. Persaud consented to pay 50%, or $400.58. Mr. Persaud also consented to pay 50% of the hockey expense of 405.61, or $202.81. These are payable with respect to the net amount after any tax credit available or claimed by Ms Persaud (fitness/activity).
School supplies and clothes
[69] Ms Persaud claimed $1,906.04 for items such as clothing, footwear, backpacks, binders, and school supplies. Most of these claims were not supported by receipts. All children need school supplies, backpacks, and binders, and those attending many schools require uniforms. These claims are not eligible extraordinary expenses relating to primary or secondary school education, and are not eligible for payment as section 7 expenses. I disallow this claim.
High school registration
[70] Ms Persaud claims the amount of $315 for high school registration for her older daughter. I assume that this is a registration fee for high school, but do not find it to be an extraordinary expense for an educational program. I assume on the evidence before me that all children attending that high school, which is a public high school, must pay such an expense. It is part of the normal cost of raising children which the child support paid by Mr. Persaud is expected to cover. Again, given the test in section 7(1.1) for extraordinary expenses, taking into account the recipient’s income and table support, and the factors set out therein, I do not find this to be an extraordinary expense.
Fitness membership
[71] Ms. Persaud claims the amount of $51.98 per month for fitness memberships for both children on a continuing basis commencing in November, 2017. Mr. Persaud objects to this as a luxury. Again, given the test in section 7(1.1) for extraordinary expenses, taking into account the recipient’s income and table support, I do not find this to be an eligible extraordinary expense. If Ms. Persaud wishes to provide a gym membership, then she may make this choice within her budget as part of the normal cost of raising children but not as a section 7 eligible expense.
Summary:
[72] Mr. Persaud is to pay Ms Persaud $9,061.04 for eligible retroactive section 7 expenses.
Future Section 7 Expenses
[73] In the future, Ms. Persaud identified child care expenses for the younger child at the cost of $345 a month until September, 2020. I have no information as to the net cost of this child care expense after Ms. Persaud claims the tax deduction, but it is an eligible section 7 child care expense. Mr. Persaud is to pay 33% of the net cost of the Rippleton childcare program. Ms. Persaud must provide the net expense (after her tax deduction or tax credit) to Mr. Persaud, and must provide receipts to Mr. Persaud.
[74] The child care expense which is approved pursuant to section 7 of the Guidelines must relate only to those costs for child care that are incurred while Ms Persaud is at work or pursuing education or training. It is contemplated that the before and after school program would extend to the end of grade 8. Often children refuse to continue in a before and after school program as they get older, particularly when there is an elder child in the home. If the younger child is no longer attending the before and after school program, Ms. Persaud must immediately notify Mr. Persaud as to the date when the Rippleton child care expenses cease.
[75] Mr. Persaud has agreed to contribute as a section 7 expense his allocated cost (33%) of piano lessons for one child until she reaches the age of 18; the other child no longer wishes to take piano. Ms Persaud is to provide invoices or receipts for all lessons, and Mr. Persaud will be obliged to pay 33%.
[76] This is a high conflict family. As a result, I find it necessary to point out that Ms Persaud has identified two prospective extraordinary expenses, child care and piano. Mr. Persaud should be notified of any other activity and the cost before Ms Persaud enrolls the children in future activities for which Ms Persaud intends to claim section 7 expenses: Romeo v. Naidoo, 2006 ONCJ 302; Zimmerman v. Doe, 2007 CanLII 28755 (ON SC), 2007 CarswellOnt 4721, (Sup. Ct.), para. 11.
[77] If Ms Persaud wishes to seek future section 7 expenses not contemplated here, that must be done on notice to Mr. Persaud, with copy of the invoice or estimated cost. Given the types of expenses she claimed in this trial as section 7 expenses, Ms. Persaud must review the Federal Child Support Guidelines and apply the legal test. I expect Mr. Persaud will either agree if it falls within the Child Support Guidelines, or disagree if it does not.
[78] I expect the parties to apply the factors and the formula set out above in determining their income and thereafter their respective contributions on a pro-rated basis to the after-tax expense.
Spousal Support
[79] Both parties sought retroactive and ongoing spousal support from the other party. During the marriage, Mr. Persaud earned more than Ms Persaud. However, due to a health crisis in January 2016, Mr. Persaud was initially on short-term disability and is now on long-term disability. During the marriage Ms Persaud worked outside the home, and was able to establish a successful and profitable business which has continued after the marriage. There was little evidence, but Ms Persaud’s evidence is that she bore a disproportionate load of child care during the marriage.
[80] Mr. Persaud requested retroactive spousal support for 2016 and 2017 of $1,000 per month and spousal support of $1,000 per month in the future given the substantial decrease in his income due to his health crisis. He also pointed to costs for medication and therapy as well as special supplements and nutritional requirements, although there was no admissible evidence on this point.
[81] In her closing argument, Ms Persaud noted that while she sympathized with Mr. Persaud’s health crisis, she did not believe that a health crisis three years after separation should affect her spousal support claim. She took the position that in the alternative to her claim for support, “I will be content with no spousal support on either party.” She noted the lack of evidence as to the expected length of time Mr. Persaud was expected to be on long term disability.
[82] Section 15.2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), grants courts the authority to make orders requiring one spouse to pay the other spouse periodic or lump sum spousal support. Sections 15.2(4) and 15.2(6) of the Divorce Act list the factors to be taken into account by the court in determining whether a spouse is entitled to receive spousal support. The court is required to take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.
[83] Section 15.2(6) of the Divorce Act provides that orders for spousal support 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;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and,
(d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[84] None of the objectives is determinative; it is important to balance all four objectives in the context of the circumstances of the particular case. A finding that there has been no economic disadvantage arising from the marriage or its breakdown is not determinative of whether the spouse claiming spousal support is entitled to support. Simply because two people have married does not mean there is an automatic entitlement to support.
[85] On the evidence before me, I find that neither spouse suffered an economic disadvantage from the marriage as a result of roles taken on during the marriage, and no pattern of economic dependency developed during the parties’ relationship. I find that neither spouse is entitled to support, whether analyzed on a compensatory or a needs basis. Both parties have sufficient income earning capacity to achieve and maintain economic self-sufficiency. A mere difference in post-separation incomes does not generate a claim for spousal support.
[86] While Mr. Persaud’s income has decreased as a result of his health crisis and reduction in income approximately three years after separation, for factors not relating to the marriage, he is not at a hardship level, and no other factors would lead me to award spousal support on the evidence.
[87] When Ms Persaud’s income is adjusted to take into account NSP income as I did for the child support analysis, the incomes of the spouses are roughly comparable for 2013-2015, and she is earning substantially more 2016 and following. I see no factors that would lead me to award spousal support on the evidence. Both claims for support are dismissed.
RESP Contribution for Children
[88] Ms Persaud sought an order that Mr. Persaud pay a lump sum to establish an RESP for the two children, whether as child support or otherwise. This is not covered by the Child Support Guidelines.
[89] Child support is intended to provide for the current needs of the children. It does not look to anticipated needs or seek to create monetary funds for the future: Crosby v. Crosby, [2002] S.J. No. 164 (Sask. Q.B.). Under the Guidelines, an RESP contribution should not be ordered, as support is to meet current needs. Gaetz v. Gaetz, 2001 NSCA 57. I decline to make this order.
Insurance coverage:
[90] Mr. Persaud has a life insurance policy. Upon his death, $470,000 will be paid equally to the two children. The Applicant has been appointed as trustee because the children are minors. The Applicant requests that she be appointed the irrevocable beneficiary to secure payment of child support obligations. Section 34(1)(i) of the Family Law Act permits a court in an application under s. 33 to “make an interim or final order … requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or child as the beneficiary irrevocably”. Section 34(1)(k) of the Family Law Act gives a court discretion to make an interim or final order “requiring the securing of payment under the order, by a charge on property or otherwise.” I find that the present designation, to the children with Ms Persaud as trustee, is sufficient.
Equalization of Net Family Property
[91] There is agreement that the valuation date is May 9, 2013. The parties, however, disagreed on almost every aspect of the equalization of net family property.
[92] In the discussion below I take into account previous court orders, the positions of the parties, the oral and documentary evidence filed with me, and agreement that emerged on certain aspects during closing argument.
Value of Property Owned on Valuation Date
Value of household contents
[93] The parties disagree as to the value of household contents to be attributed to each of them. There is no evidence but for very skimpy descriptions such as a fridge or furniture. On the evidence before me I find that the household contents of each party is equal, and should be excluded from the NFP, in accordance with the Order of Justice Goodman dated May 12, 2014.
Value of jewelry, tools
[94] Mr. Persaud asserts the value of Ms Persaud’s jewelry on the valuation date was $20,000. On cross-examination, it was established that there was relatively little jewelry save for a wedding band, some necklaces and watches. Mr. Persaud had some electronics and tools. I attribute $1,000 to each of them on the valuation date.
Value of Cars
[95] The value of cars was settled by the Consent Order of Justice Kiteley, and Mr. Persaud was ordered to pay Ms Persaud $8,013 on September 13, 2017. This sum is to be paid separately, outside the equalization, together with interest from September 13, 2017.
Other Assets
[96] By the end of trial and closing submissions, there was agreement as to the value of most of the assets, including bank accounts and investment accounts as set out in the revised net family property statements (NFP’s) tendered by each party in closing argument, which I accept. Some issues raised in the pleadings were abandoned by the end of trial, including claims by Ms Persaud for the value of property in Guyana, and the value of shares in Thales Canada which the Respondent denied owning.
[97] My findings on disputed amounts are set out below.
(i) Applicant’s value of NSP holdings
[98] The parties disagree as to the value of Ms Persaud’s corporation, NSP Holdings, as at the valuation date. Ms Persaud originally claimed that the NSP value on valuation date was $5,689.62. When challenged on cross-examination that the shareholder’s deficit of $24,689 was included as a liability of the Corporation but was in fact an amount owing by her to the corporation, she revised her claim as to the value of the company to be $30,479. Mr. Persaud’s position is that the value of NSP on valuation date is cash in the company’s account on that date, $87,296. There is no expert evidence on this point.
[99] I accept, however, that the value of this personal services billing corporation on valuation date must take into account more than just the point in time cash holdings, and what is in the bank account is not reflective of the value of a corporation on a particular date. I accept Ms Persaud’s value of $30,479 on valuation date.
(ii) Respondent’s Standard Life RSP 7379
[100] The only evidence of the value of this RSP are statements dated November 1, 2012 and October 31, 2013. The burden is on the respondent to establish this value. He has not provided a valuation date value. On November 1, 2012 the value of this RSP was $98,840.07. This is the value used by Mr. Persaud on as the value closest in date to date of separation. On October 31, 2013 the value is $118,553.53. Ms Persaud argues that the increase in value of $19,713.46 should be averaged as $1642.78 monthly, adding 6.5 months or $10,678.12 to be added to the November 2012 value. I accept this, and set the valuation date value at $109,518.19.
(iii) Respondent’s Standard life LIRA
[101] On November 1, 2012, the value of the LIRA was $25,728.23, while on October 31, 2013 the value was $29,562.67. The burden is on the respondent to establish this value. He has not provided a valuation date value. Mr. Persaud relied on the November 1, 2012 value as the value closest in date to date of separation. Ms Persaud argues that the increase in value of $3,834.44 should be averaged as $319.54 monthly, adding 6.5 months or $2,076.99 to the November 2012 value. I accept this, and set the valuation date value at $27,805.21.
(iv) Applicant’s RSP RBC 8589
[102] The opening value on March 31, 2013 is $41,827.08 (argued by Mr. Persaud); the next value is June 30, 2013 of $40,839.70 (argued by Ms Persaud). The valuation date of May 9, 2013 is approximately 5 weeks after the March value and 6 weeks before the June value. As such I find it appropriate to take an average of the 2, which is $41,333.39, the same method applied to Mr. Persaud’s RSP values.
(v) Applicant’s RSP RBC 3370
[103] As above, the opening March 31, 2013 value of $14,239 was argued by Mr. Persaud, and the next value of June 30, 2013 of $14,170 was argued by Ms Persaud, I take the average, which is $14,204.50.
(vi) Applicant - EZ Jet Airways Corp.
[104] Mr. Persaud originally sought to have $300,000 relating to EZJet Airways Corp. reflected as an asset owned by Ms Persaud. By closing argument, he had reduced this claim to $70,000. The evidence on this point is unsatisfactory.
[105] Ms Persaud had originally sworn two separate financial statements in which she listed EZJet Airways Corp. as a corporation of which she was the 100% shareholder, with the value to be determined later. At this trial, she asserts that the company is owned 100% by her brother, and the only reason that she was reflected as the owner was because her brother is not a Canadian resident and she is a Canadian resident. Ms Persaud did not call her brother as a witness, although he was listed as a witness on the Trial Scheduling Endorsement Form.
[106] Ms Persaud tendered into evidence incomplete articles of incorporation for EZJet Air Services, a different company, which are lacking schedules, are undated, and are signed by Sonny Ramdeo as the incorporator. Form 2 lists Mr. Ramdeo and Ms Persaud as members of the Board of Directors. Of note, Ms Persaud’s address is listed as Sunrise, Florida. There is no date on the corporate materials filed.
[107] Ms Persaud also introduced in evidence a Master business license issued to EZJet Air Services. That lists EZJet Air Services as a sole proprietorship owned by Sonny Ramdeo licensed for wholesale/retail/airline ticket sales. The relationship between EZJet Air Services and EZJet Airways Corp. was not explained in evidence. There is no explanation as to how EZJet Air Services is both a corporation with a board of directors, and a sole proprietorship.
[108] There is no other indication as to who owned the shares of the EZJet Airways Corp. at valuation date. Although she swore two financial statements saying that she was the owner, the financial statement tendered at trial does not reflect any value. A document tendered in evidence lists Ms Persaud as the “Toronto Operations Manager” on an Air Carrier Contact list, with Mr. Persaud listed as Relations Manager. That document is undated, and does not appear to be official.
[109] I assume that one of the two EZJet companies went bankrupt, although that was not clear on the evidence. There is some correspondence by Ms Persaud with TICO May 2, 2013, which refers to attempts to get back a $120,000 deposit from TICO following a bankruptcy.
[110] The burden is on Mr. Persaud to establish that Ms Persaud was entitled to the moneys, or she owned a company with a value of the $70,000 he now claims. There is no evidence as to the existence of the sums allegedly held to EZJet’s benefit, with the exception of a list at Exhibit 19. I do not find, on a balance of probabilities, that Ms Persaud either owned EZJet Airways Inc., or shares in EZJet Airways Inc. on valuation date that should be reflected as an asset of $70,000 as now claimed by Mr. Persaud and I dismiss this claim.
(vii) Applicant’s Personal Chequing 8731
[111] The Respondent claims that the amount of $15,845 held in a chequing account is property of Ms Persaud. Ms Persaud’s evidence is that she held this account jointly with her mother, and it had been operating since 2005. The only written evidence is a one page excerpt which lists the account name under her mother’s name; there are no signature cards, and no other evidence that this was a jointly held account. There are no large withdrawals around the time of separation, and I accept that this is a jointly held account, for the benefit of Ms Persaud’s mother, and Ms Persaud was not entitled to the money. This does not go on the NFP.
(viii) Applicant’s CIBC Account 9732
[112] A US dollar account in Ms Persaud’s name was held jointly with her cousin, Radmika Bissessar Singh. On April 22, 2013, the amount of USD $31,235.93 (C$41,646) was removed from the account; a money order in the same amount is payable to Jaipaul Gobind. Ms Persaud’s evidence is that she was returning this money to her cousin; the burden of proof is on Ms Persaud to establish on a balance of probabilities that she was not entitled to the money on the date of valuation. Ms Persaud had listed her cousin as a witness on the trial scheduling endorsement form, on the issue of ownership of funds in the joint account. Her cousin did not testify. I draw an adverse inference from the failure to call Radmika Singh as a witness. As the joint account owner, Ms Persaud is presumed to have a legal right to access the moneys in the account. I note that the transfer occurred two weeks before the separation, and there is very little explanation of the transaction. I find on a balance of probabilities that Ms Persaud was a joint account holder on the date of separation, and that 50% of the value of the account on the date of separation should be contained on her net family property statement.
(ix) Applicant’s Personal Chequing USD Account 4135
[113] Mr. Persaud seeks to add CAD $1,021 as the value of Ms Persaud’s USD account, and she does not object.
Debts and Other Liabilities
Contingent Liability – Respondent’s Pension
[114] The parties agree that the contingent liability for Mr. Persaud’s pension is as set out in the valuation report, $12,340. Therefore, this amount appears as a contingent liability on Mr. Persaud’s NFP as at the valuation date.
Applicant’s CRA Debt
[115] The applicant claims a CRA debt of $18,338.00 as at the valuation date. The respondent’s position is that there is no evidence of the debt as at the valuation date. I agree. This debt is disallowed.
Shareholder Debt to NSP
[116] The applicant claims that the shareholder loan reflected on the NSP statement (which she reflected as an asset in determining the value of the company), is offset by the debt she owes to the company. I agree. The amount of $24,789 is a debt owing on valuation date by the applicant.
Excluded Property and Debts on Date of Marriage
[117] Furniture and Vehicle: The respondent claims value of a vehicle owned at date of marriage, $3,000, which I accept.
[118] Bombardier Stock and RSP: Although in his opening the respondent claimed an exclusion on date of marriage of $132,000, by closing he claimed $80,000. The respondent claims he owned 5573 shares of Bombardier on the date of marriage, with a value of approximately $10 per share, although he has no records. He also claimed the value of his RSP on date of marriage, with no records. I accept that he owned the Bombardier shares, and had RSP funds attributable to his work, and attribute a value of $50,000.
[119] Applicant Cash: The applicant claims she had $5,000 when she arrived in Canada; the respondent accepts that she had this money. Ms Persaud claims a further $30,000 was given by her parents to assist with the matrimonial home purchase. However, there are no records and the parents did not testify. Since the matrimonial home was not purchased until 2003, four years after the marriage, in the absence of records I do not accept this as a date of marriage deduction, nor as an excluded gift since it was put toward the matrimonial home. I accept Ms Persaud’s evidence that she brought furniture worth $5,000 into the marriage, and set the cash and savings date of marriage deduction for the applicant at $10,000.
[120] Applicant and Respondent Jewellery on date of marriage: There was no evidence on these points, and I set the value at zero for both.
[121] Value of Land Owned by Husband on Date of Marriage: Ms Persaud in her Net Family Property Form 13C claims that Mr. Persaud owned land with a value of $100,000 on date of marriage. However, this claim was abandoned by final argument.
Summary:
[122] I have attached a Net Family Property DivorceMate calculation to this judgment. Mr. Persaud is to pay Ms Persaud $56,609.95 for equalization of net family property.
Post-Separation Property Adjustments
[123] The parties obtained a Consent Order that the three jointly owned properties would transfer in April, 2015. It was agreed that the 3 properties would transfer on the basis of 2014 appraisal evidence. On the evidence before me, the transfers were arranged and new mortgage commitments were secured for the April, 2015 transfer. However, Ms Persaud refused to sign the mortgage documents at the lower rate, and mortgages were thus put in place at a much higher rate causing increased costs. The Tavistock mortgage increased from 2.35% to 6.04% on May 1, 2015, and the Whitburn mortgage increased from 3.14% to 6.04% in November, 2015. Ultimately, the properties were transferred in 2017 rather than in 2015 as originally ordered by this court on consent. I find on the evidence that this was entirely due to the actions of Ms Persaud. Because the mortgages were not renewed at the lower value solely due to the actions of Ms Persaud, I attribute the extra mortgage servicing cost of $18,886 to Ms Persaud, and find that she is solely liable for the amount of additional mortgage costs due to her refusal to sign on the original date for transfer pursuant to the Consent Order. Ms Persaud is to pay Mr. Persaud $18,886 in respect of increased mortgage amounts incurred.
[124] The other costs associated with the post-separation adjustments for the 2 income properties, Tavistock and Whitburn, in the amount of $52,269, are to be shared equally between Mr. and Ms Persaud. As Mr. Persaud has paid all of the expenses, Ms. Persaud owes $26,134.50 in post-separation adjustments for these two properties. This is in addition to the $113,000 which pursuant to the Consent Order of Justice Backhouse dated September 13, 2017, Ms Persaud agreed to pay to equalize the values of the three transferred properties. Mr. Persaud claims and is entitled to interest on the $113,000 from the date of the September 13, 2017 Order. No interest calculations were provided to me. All expenses after transfer in January, 2017 are to be borne by the owner.
[125] Mr. Persaud has established an adjustment for payment of the matrimonial home insurance in the amount of $2,080 for January 2016 to January 2017, when the home was jointly owned. Ms Persaud to pay Mr. Persaud $1,040 for the insurance, 50% of the expense.
[126] Ms Persaud claims adjustments for costs associated with Hallsport, the former marital home, in which she has resided with the children since the separation date. That property should have transferred in April 2015, on the basis of a March, 2015 court ordered value, but for the actions of Ms Persaud. Ms Persaud gained 100% of the value of the increase, as it was not transferred until January, 2017, and it transferred based on the 2014 valuation. She has been residing solely in the property, and benefiting from any improvements made to the property since the 2014 appraisal and the Court-ordered transfer date in April, 2015. Mr. Persaud continued to pay the mortgage on the matrimonial home from separation until transfer in January, 2017, and Ms Persaud paid no occupation rent. As a result, I find that there should be no expenses relating to Hallsport payable by Mr. Persaud after April, 2015.
Child Support Arrears
[127] The consent order of Justice Backhouse dated September 13, 2017 fixed child support arrears at $8,500; Mr. Persaud is to pay the arrears, plus interest at 2% since September 13, 2017.
Order
[128] I have calculated that the net effect of this decision, subject to certain interest calculations, is that Ms Persaud owes Mr. Persaud $76,876.51, plus interest.
[129] Order to go as follows:
(1) Mr. Persaud is to pay table child support for the two children in the monthly amount of $1,023 per month until November 21, 2017 and $1,051 per month after that date, based on Mr. Persaud’s income for child support purposes of $68, 964 annually. Payments to be deducted on the 1st of the month commencing in June, 2018. The existing support deduction order is to be amended with respect to date of payment.
(2) The parties are to exchange income tax information annually by August 1, so that child support obligations and section 7 expenses can be adjusted.
(3) Mr. Persaud is to advise Ms Persaud within 30 days if he returns to work, and shall provide financial information about the terms of employment at that time.
(4) Mr. Persaud to pay Ms. Persaud $8,500 child support arrears and $8,013 vehicle equalization pursuant to the Order of Justice Backhouse dated September 13 2017, with 2% post-judgment interest from September 13, 2017.
(5) Ms. Persaud to pay Mr. Persaud $113,000.00 to equalize the value of the three jointly owned properties pursuant to the Order of Justice Backhouse dated September 13, 2017, with 2% post-judgment interest from September 13, 2017.
(6) Mr. Persaud to pay Ms Persaud $9061.04 as retroactive section 7 expenses as set out herein:
(a) Net piano lesson expenses of $4600.00 less 50% of the tax credits available to Ms Persaud each year for the piano lessons, plus interest at 3% calculated annually in accordance with Order of May 12, 2014, to be calculated from the date of default following the provision of receipts;
(b) Net child care expenses of $3,770.15 plus interest at 3% calculated annually in accordance with Order of May 12, 2014, to be calculated from the date of default following the provision of receipts;
(c) Hockey expense of $202.81;
(d) Gymnastics expense of $400.58;
(e) Ski trip expense of $87.50.
(7) Future section 7 expenses are to be allocated between the parties based on their income determined for child support purposes, 67% to Ms Persaud and 33% to Mr. Persaud.
(8) Existing section 7 expenses are piano and child care. Ms Persaud is to consult with Mr. Persaud about incurring new categories of section 7 expenses if she seeks reimbursement; failing agreement, she will have to bring a motion. Ms Persaud is to provide proof of any section 7 expense by invoice or receipt. Mr. Persaud is to pay his 33% share at the end of the month following provision of the receipt or invoice. Mr. Persaud is liable for the net expense only. Annually, Ms Persaud is to provide proof of the expenses net of tax deduction or tax credit available to Ms Persaud, and Mr. Persaud may set off any reimbursement against future section 7 expenses.
(9) Mr. Persaud is to pay Ms Persaud $56,609.95 as equalization of net family property.
(10) Ms. Persaud is to pay Mr. Persaud $1040.00 for overpayment of house insurance.
(11) Ms Persaud is to pay Mr. Persaud $18,886 in respect of increased mortgage amounts incurred on the three properties prior to the January 31, 2017 transfer;
(12) Ms Persaud to pay Mr. Persaud $26,134.50 for post-separation adjustments relating to the three properties;
(13) All amounts owing shall be set-off against the other such that Ms Persaud shall pay to Mr. Persaud the net amount owing of $76,876.51 within 30 days of this decision, although the interest on amounts owing in respect of earlier orders as set out in paragraphs 4, 5 and 6 of this Order may be separately calculated and adjusted resulting in a separate payment for adjustment of interest, within 60 days of this decision.
(14) All amounts owing bear 2% post-judgment interest from the date of this judgment unless otherwise specified herein.
Kristjanson J.
Released: May 23, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHREMATTIE PERSAUD
Applicant
– and –
RAVISHANT PERSAUD
Respondents
REASONS FOR JUDGMENT
Kristjanson J.
Released: May 23, 2018