Court File and Parties

COURT FILE NO.: FS-47823-13 DATE: 2018-06-22

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARIETTE MICHELE HARAS Applicant

• and -

PHILIPPE ROBERT CAMP Respondent

Counsel: Lorrie Stojni, Counsel for the Applicant Brian Kelly, Counsel for the Respondent

HEARD: May 23, 24, 26, 29, 30; June 1; November 29, 30; & December 22, 2017

BEFORE: The Honourable Justice C.D. Braid

REASONS FOR JUDGMENT

I. OVERVIEW

[1] Mariette Haras and Philippe Camp were married for 25 years and had three children together. The parties resolved all issues related to parenting and equalization, and a trial proceeded on issues related to support and claims for other compensation.

[2] The following are the issues to be decided at trial:

A. What is the wife’s income for support purposes? B. What is the husband’s income for support purposes? C. Is the wife entitled to spousal support? D. What are the proper amounts of child and spousal support? E. Is the husband entitled to reimbursement of expenses? F. Is the husband entitled to occupation rent?

[3] For the reasons set out below, I impute the wife’s income at $30,000 and set the husband’s income according to line 150 of his tax return. The wife is entitled to spousal support on an indefinite basis. In addition, the husband is entitled to reimbursement of post-separation expenses, but his claim for occupation rent is dismissed.

II. BACKGROUND FACTS

[4] Mariette Haras is currently 55 years of age. In these reasons, I shall refer to Ms. Haras as the wife.

[5] Philippe Camp is currently 57 years of age. In these reasons, I shall refer to Mr. Camp as the husband.

[6] The parties were married on August 30, 1986.

[7] The parties had three children together:

i. Zachary Alexandre Camp, born November 10, 1989. Zachary is 28 years of age and living independently. ii. Isabelle Michele Camp, born May 2, 1993. Isabelle is 25 years of age. She lived with the mother following separation and began living independently on July 1, 2015. iii. Elliott Haras Camp, born February 23, 2002. Elliott is presently 16 years of age and has resided with the mother since separation. Elliott is the only remaining child of the marriage.

[8] The parties separated on December 31, 2011. They continued to live separate and apart in the matrimonial home until December 1, 2012, when the husband moved to a separate residence.

[9] The wife commenced this application on April 17, 2013.

[10] A number of issues have been resolved by prior consent orders. Other issues were resolved on consent, on a final basis, during the trial.

[11] The divorce was severed from the corollary relief. On May 3, 2016, the court granted a divorce.

III. ANALYSIS

A. What is the Wife’s Income for Support Purposes?

[12] The determination of the wife’s income is relevant for the calculation of spousal support. The wife submits that the court should calculate support based on the income as declared on her income tax return. The husband states that the prior interim consent order was made on the basis that the wife had $50,000 in income imputed to her. He submits that this was an appropriate imputation of income.

[13] The wife graduated from Wilfred Laurier University in 1986 with a B.A. in physical education and resource management. The parties married that year. From 1986 to 1996, the wife held various positions as manager of a golf and country club, a yacht club, and a recreation centre.

[14] The parties’ older two children were born in 1989 and 1993. After the birth of their second child, the parties decided that the wife would start her own business and run it out of the home. This would provide flexibility to permit her to look after the family.

[15] The wife has run her own event planning company, Big Events Inc., since 1996. She obtained her Certified Meeting Professional designation in 2009. Big Events has coordinated special events for large companies and individuals in the Waterloo Region, such as RIM, TD, Equitable Life, and St. Mary’s Hospital Foundation.

[16] The wife continues to earn income from Big Events. Her income as declared on line 150 of her annual tax returns is as follows:

i. 2009 - $53,662.00 ii. 2010 - $21,140.00 iii. 2011 - $29,549.00 iv. 2012 - $20,989.00 v. 2013 - $36,225.00 vi. 2014 - $24,114.07 (after deducting spousal support) vii. 2015 - $11,913.00 (after deducting spousal support) viii. 2016 - $22,183.00 (after deducting spousal support)

[17] The wife’s income fluctuates. Between 2009 and 2016, her average income was approximately $27,470. The wife earned $53,662 in 2009, but has earned much less in the years that followed.

[18] I accept the wife’s evidence that there was a global economic downturn in or around 2009, and that this affected the work available for Big Events. The parties began having difficulties in their marriage around that time as well. The wife states that she spiralled into a depression which had a significant effect on her ability to work, and that Big Events lost business as a result.

[19] It is reasonable that one would find it difficult to end a 25-year marriage. This is a major life stressor which can temporarily impact the ability to run one’s own company. However, the wife has not produced any medical evidence of having suffered from a debilitating condition as a result of the marriage breakdown.

[20] The wife states that she has dealt with the stress of litigation since 2013, which negatively impacted the viability of Big Events. Although litigation stress is difficult, many people continue to work while dealing with litigation. In any event, that stressor has now been removed since the completion of the trial.

[21] If a spouse is intentionally under-employed, other than where the under-employment is required by the needs of a child of the marriage, the court may impute such amount of income to a spouse as it considers appropriate: see s.19 of the Child Support Guidelines.

[22] For the purposes of both child and spousal support, there is broad judicial discretion to impute income. The party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis for such a finding.

[23] The test for imputing income for intentional under-employment is one of reasonableness, having regard to the parties' capacity to earn income in light of their age, education, health, work history and work availability. A spouse's capacity to earn income will include that person's ability to work or to be trained to work: see Marquez v. Zapiola, 2013 BCCA 433 at para. 37.

[24] In this case, the husband suggests that the wife is capable of earning at least $50,000 per year. This submission is primarily based on the fact that she earned more than that in 2009, and on the fact that the wife’s expert report refers to $50,000 as the market wage for event planners.

[25] I do not agree with the husband’s submissions on this issue. In my view, the evidence does not support imputing her income at that level.

[26] I accept the wife’s evidence that event planning is a young industry and it is a physical job, which can make it challenging for her to secure new business due to her age. I also accept the wife’s evidence that, in order to grow the company, she would need to move to Toronto. It is not reasonable to expect her to do so until Elliott is independent, which will likely not occur for a few years. The older she gets, the more unrealistic the expectation that she re-establish the business in Toronto. Because of the economic downturn in 2009 and in light of these additional reasons, it would be unreasonable to expect her to continue to make the same income that she achieved in 2009.

[27] However, the wife is making less than minimum wage each year. A full-time minimum wage job in Ontario in 2018 provides an annual gross income of $29,120.00. Although the wife has sole custody of Elliott, he has been a teenager for three years and is no longer an infant or toddler with demanding needs. She no longer requires a job that permits her to work from home.

[28] Because the wife is self-employed, her income is self-driven. If Big Events is not a viable business, she certainly has the opportunity to pursue other employment. In light of her training and work experience, I would expect the wife to be able to secure at least minimum wage employment or higher.

[29] To a certain extent, the wife has underutilized her skill set. However, she has worked in a competitive field for almost 10 years and it will be difficult for her to get back to her $56,000 income achieved in 2009, or to find employment elsewhere with a comparable salary.

[30] Having considered the wife’s age, education, health, work history and work availability, I find that the wife is intentionally under-employed. It is reasonable to impute the wife’s income at $30,000 annually, commencing in 2014 and on an ongoing basis.

B. What is the Husband’s Income for Support Purposes?

i. Should the Husband Be Entitled to Deduct Employment Expenses?

[31] The husband claims employment expenses on his annual tax returns, which do not reduce his line 150 income but reduce the amount of tax ultimately paid. He argues that these employment expenses should be deducted before determining the appropriate income upon which to calculate support. On the other hand, the wife submits that support should be calculated based on the husband’s income as declared on line 150 of his tax return. She argues that the employment expenses should not be deducted for purposes of calculating support.

[32] The husband is employed at Paccar as an area sales manager for Canada. He frequently travels for work. Paccar has provided him with an Amex card, which he uses to pay for many of his employment expenses. He testified that he is reimbursed by Paccar for the expenses that he incurs on the Amex card. The husband also testified that he paid for some employment expenses out of his own pocket (including motor vehicle travel expenses and costs related to a home office) and was not reimbursed by Paccar for those expenses.

[33] The husband testified that CRA audited the employment expenses claimed on his tax returns, and upheld those deductions.

[34] Schedule III of the Child Support Guidelines states that certain specified employment expenses described in paragraph 8 of the Income Tax Act are deducted from income for purposes of calculating support. Not all employment expenses are deductible from total income for support purposes. In this case, the husband states that he incurred sales expenses; travel expenses; and motor vehicle travel expenses that should be deducted pursuant to Schedule III.

[35] When a taxpayer seeks to claim employment expenses to reduce their taxes, they must file a T2200 Declaration of Conditions of Employment. This form is completed by the employer and describes the types of employment expenses that are necessary for the employee to incur as part of the employment and that are not reimbursed by the employer. The employee must also confirm that their contract of employment requires the employee to pay employment expenses.

[36] Deductions accepted by CRA are not automatically accepted as deductions from income for the purpose of determining a payor’s income for spousal support. There should be some evidence that would justify a conclusion that the employment expenses qualify as a deduction pursuant to s. 8(1) of the Income Tax Act: see Bentley v. Gillard-Bentley, 2013 ONSC 722 and Chase v. Chase, 2013 ONSC 5335.

[37] The onus is on the husband to establish, on a balance of probabilities, that his Schedule III deductions are appropriate employment expenses before they can be deducted: see Pollitt v. Pollitt, 2010 ONSC 1617 at para. 140.

[38] In this case, I draw an adverse inference from the failure of the husband to file the following evidence:

i. His T2200 forms from his annual tax returns; ii. His contract of employment; iii. Documents that he filed with the CRA when he was audited; iv. Monthly Amex statements for the Paccar Amex card; and v. Formal reconciliation of the Paccar reimbursement compared to his payments made on Amex balances.

[39] Since there was no change to the husband’s tax situation following the CRA audit, it is arguable whether the husband had an obligation under the Rules to disclose (to the wife) the documents filed in support of his submissions made during the CRA audit process. However, having failed to provide copies of those records in court, the husband has not provided a satisfactory basis for this court to determine whether the Schedule III deductions are appropriately deducted from his line 150 income for support purposes.

[40] In addition, the husband did not provide the court with the monthly statements for the Paccar Amex card. The husband states that the Amex records are the property of Paccar so he could not disclose these records absent a court order. While that may be true, it is his onus to prove that the employment expenses were proper. He should have provided these records in evidence, whether pursuant to a court order or otherwise. Since he did not produce those records, it is impossible to determine what expenses were being reimbursed by Paccar, and how they differed from the expenses claimed on his tax return.

[41] For reasons that are unclear, Paccar’s reimbursement to the husband for the Amex employment expenses often exceeded the Amex balance that the husband paid each month. The husband has not provided an adequate explanation for this discrepancy, and has not provided a formal reconciliation of the Paccar reimbursement compared to his payments made on Amex balances.

[42] The husband has failed to satisfy the court that the employment expenses are appropriate deductions for support purposes. As a result, I find that it would not be appropriate for the husband to deduct any employment expenses, either for the purposes of calculating retroactive or ongoing support.

ii. Should the Husband Be Entitled to Deduct RRSP Withdrawals?

[43] The husband agrees with the wife that RRSP income should be included in his income for child support purposes, pursuant to the decision in Fraser v. Fraser, 2013 ONCA 715. However, the husband argues that he should be entitled to deduct the RRSP withdrawals when calculating spousal support. The wife submits that there should be no deduction of the RRSP withdrawals.

[44] In 2014, the husband earned $144,161 of non-RRSP income. He withdrew $25,000 in RRSP money and included this in his income for tax purposes, and had a total line 150 income of $169,161. The husband had more than $39,000 of other tax-free money available that year, including a tax refund from the previous year, a non-taxable RRSP withdrawal. He also had a cash advance that the husband says was used to pay down debt.

[45] In 2015, the husband earned $141,321 of non-RRSP income. He withdrew $15,000 in RRSP money and included this in his income for tax purposes, and had a total line 150 income of $156,321. The husband had more than $14,000 of other tax-free money available that year, including a tax refund from the previous year and a non-taxable RRSP withdrawal.

[46] In 2016, the husband earned $171,398 in income. He did not make any taxable RRSP withdrawals. He also received a $10,960.84 tax refund and a non-taxable RRSP valued at approximately $3,000.

[47] At trial, the husband testified that he withdrew the RRSP funds in 2014 and 2015 because his salary was not sufficient to cover his expenses. I find that the 2014 and 2015 RRSP withdrawals should be deducted from husband’s income for the purpose of calculating spousal support, for the following reasons:

i. As I mention later in these reasons, the husband shall be reimbursed for family expenses that he paid after separation, including some expenses that were only for the benefit of the wife. The RRSP withdrawals became necessary because the husband did not have sufficient funds to cover expenses. ii. It is notable that the matrimonial home did not sell until 2015. Although some funds have been released to the parties from the sale of the home, the husband was not able to access the majority of his equity in the home in 2014 and 2015. iii. The parties have settled equalization. The court has no evidence to determine whether these RRSPs have been equalized or not. If they have, including the RRSP withdrawals in income may be a form of double-dipping.

[48] For these reasons, I find that unfairness would result if the RRSP withdrawals were included in the husband’s income when calculating spousal support. The RRSP withdrawals made in 2014 and 2015 will be deducted from the husband’s income for spousal support purposes.

iii. Conclusions re: Husband’s Income

[49] I make the following findings regarding the husband’s annual income for support purposes:

Year	Income for purposes of child support	Income for purposes of spousal support
2014	$169,161	$144,161
2015	$156,321	$141,321
2016	$171,398	$171,398

[50] The evidence on the trial was completed on November 30, 2017. The court did not receive any evidence regarding the party’s 2017 income. I find that it is appropriate to use the husband’s 2016 income to calculate support for 2017 and the years that follow, including for prospective support.

C. Is the Wife Entitled to Spousal Support?

[51] The wife claims compensatory spousal support given the long-term duration of the marriage and the contributions she made to the advancement of the husband’s career, as a result of her assumption of child care and management of the matrimonial home. The husband argues that the prior spousal support amount was appropriate and that no variation retroactively is warranted. He submits that the support should continue at this amount and be reviewable in 2020. The husband did not suggest that the wife is not entitled to spousal support.

[52] I have previously described the wife’s education and work experience. The wife gave up a position in the work force and created her own business so that she could focus on meeting the needs of the children and the growing family. This freed up the husband to focus on the development and advancement of his career. Since 1996, the wife has not worked outside of her own business.

[53] The husband attended Wilfred Laurier University in the 1980s but did not complete his degree. The husband initially worked for seven years as a branch manager at Penske Truck Leasing. He has been employed with Paccar since November 2002. He is currently employed with Paccar as an area sales manager for Canada. He earns approximately $171,000 per year, which includes a base salary and annual bonus.

[54] Paccar encouraged the husband to complete his degree, which would lead to opportunities for advancement. He took courses in the evenings and graduated from Laurier in or about 2008 with a B.A. in economics. The wife supported him and managed the home while he attended these courses.

[55] After the children were born, the wife took part in all aspects of the children’s daily routines and medical care. While the husband contributed to child care responsibilities when the children were young, his work required him to travel more as the children got older. The wife assumed child care duties and management of matrimonial home. Because the two older children suffered from severe asthma, they had numerous sick days and several hospitalizations. The wife dealt with the children’s medical issues, attended appointments and acted as the school’s primary contact person.

[56] The husband was the primary breadwinner for the family. The wife worked out of the home and cared for the children. The family enjoyed a good standard of living. They lived in a spacious home that was mortgage-free. They often vacationed together. During the marriage, the family went on trips to Europe, Disney and Whistler.

[57] Following separation, the wife’s financial situation was altered dramatically. The wife no longer enjoys the same standard of living as they had during their marriage. She has not travelled, except for a few non-extravagant trips that have been paid for by extended family. She has also been on camping trips with Elliott. She has no savings, pension or employee medical benefits.

[58] On the other hand, the husband has maintained or improved his standard of living. He takes frequent personal trips. For example, in 2016 alone, he travelled to Key West, Florida in February; took a three-week honeymoon in Europe in September; and went to Havana, Cuba in October.

[59] On September 30, 2016, the husband remarried. His new spouse earns approximately $100,000 annually. While this income will not be included for support purposes, it must be considered when the husband’s overall standard of living and ability to pay is examined: see MacLean v. MacLean, (1991) P.E.I.J. No. 89 at para. 22.

[60] In determining a party’s relative financial ability, the court shall consider such factors as the condition, means, needs, and other circumstances of each spouse. This includes the length of time the spouses cohabited, and the functions performed by each spouse during cohabitation: see Divorce Act, R.S.C., 1985, c. 3, s. 15.2.

[61] The Divorce Act sets out the following objectives of a spousal support order:

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

[62] I find that the wife has a compensatory claim for spousal support. This was a long-term marriage of 25 years. The husband was the primary breadwinner and his income was significantly higher. The wife contributed to the advancement of the husband’s career. There was a complete integration of their personal and economic lives. The breakdown of the marriage created a significant economic disadvantage to the wife and an economic hardship. She has an ongoing need and he has an ability to pay.

[63] I also find that the wife should benefit from the husband’s post-separation increase in income, for the following reasons:

i. The wife has conferred a substantial career enhancement benefit on the husband. She helped him build his career and made corresponding sacrifices. She provided childcare to the parties’ children and gave up her ability to generate a significant income of her own. She has made a direct contribution to his future income earning potential by way of contributing to his credentials and skills. ii. The husband began his career in the trucking industry during the marriage and continued to excel in his job at Paccar and in the trucking industry generally even after separation. iii. The husband completed his post-secondary degree during the marriage with the assistance and support of the wife, which provided opportunities for advancement. iv. This was a long-term marriage involving complete integration of the parties’ personal and economic lives.

[64] I find that the wife is entitled to spousal support toward the high end of the range and on an indefinite basis, for the following reasons:

a. The wife has a strong compensatory claim. She gave up employment for the husband’s benefit; supported his education and training; and sacrificed employment opportunities because of child care. b. The wife has limited income. c. The wife has limited earning capacity. d. The wife has compelling needs and standard of living. e. The wife is 55 years of age. f. The wife has primary care of the child Elliott, which will limit her ability to expand her business until he becomes independent. g. This was a long term marriage.

[65] I further find that the interim support order that was previously made was inadequate. Interim orders are adjustable at trial and are not intended to be the final answer on support. They are made on the best information available at the time. People often negotiate interim support in order to ensure that there is a flow of money to pay expenses until trial. The interim consent order specifically stated that it was being made “without prejudice to either party to re-argue spousal support.” If this was meant to be determined on a final basis, the order would have said so. In the circumstances, the wife is owed retroactive support.

D. What are the Proper Amounts of Child and Spousal Support?

[66] On consent, the court has previously fixed the arrears of support as of August 31, 2014. The parties agree that the support calculations to be determined at trial commence on September 1, 2014.

[67] Charts containing support calculations are found at Schedule “A” to this decision. For ease of calculation, I have considered retroactive support from September 1, 2014 until June 30, 2018 and then prospective support from July 1, 2018 onward. For ease of calculation, the parties agree that the court apply the former Child Support Guidelines for the 2017 support calculations, and apply the new Child Support Guidelines for the calculations commencing January 1, 2018.

i. Child Support

[68] Elliott has lived with the wife since separation. The parties have consented to a final order that the wife have sole custody of Elliott. There is no dispute that the husband should pay child support to the wife and that the amount of support should be calculated according to the Child Support Guidelines.

[69] In 2013, the court ordered that the husband pay interim child support (for one child) of $1,300/month commencing January 1, 2013; and $1,151/month commencing January 1, 2014. In 2014, the court ordered that the husband pay interim child support (for two children) in the amount of $1,750/month commencing May 1, 2014.

[70] In 2015, the court ordered that the husband cease paying child support for Isabelle who had moved out on July 1, 2015. The husband was ordered to pay interim child support (for one child) of $1,405/month commencing November 1, 2015.

[71] I find that the husband owes $2,646 in retroactive child support. I also find that the appropriate amount of ongoing child support, commencing July 1, 2018, is $1,453 per month for one child.

[72] The parties have agreed that s.7 expenses shall be apportioned according to their respective incomes as determined at trial. The husband’s income is $171,398 and the wife’s income is $30,000. Therefore, the husband shall pay 85% and the wife shall pay 15% of the s.7 expenses.

ii. Spousal Support

[73] In 2013, the court ordered that the husband pay spousal support commencing January 1, 2013 in the amount of $1,600/month. This order was made on an interim basis and on consent.

[74] I find that the husband owes $75,200 in retroactive spousal support. As noted, the chart setting out how this amount was calculated is attached.

[75] The retroactive spousal support must be netted down for tax purposes, to account for the parties’ respective tax rates. The court heard no submissions at trial regarding the appropriate rate to be applied.

[76] If the parties do not agree on the rate to use, they may make written submissions on this issue. The wife shall provide submissions by July 9, 2018; and the husband shall provide any response by July 23, 2018. In the event that the parties settle the rate, a consent shall be filed that reflects the rate and the total amount of retroactive support (net of tax), which shall be incorporated into the final order.

[77] I also find that the appropriate amount of ongoing spousal support, commencing July 1, 2018, is $3,600 per month.

E. Is the Husband Entitled to Reimbursement of Expenses?

[78] After the parties separated, the husband continued to pay some of the family expenses until the home was sold. He now asks to be reimbursed. The wife submits that this request should be dismissed; or, in the alternative, that any amount to be reimbursed should be set off against the total retroactive support.

[79] The husband has provided a list of the expenses that he paid post-separation, including: insurance; property taxes; contribution to the wife’s RRSP; dog sitting; and overdraft interest. Of the expenses claimed, the husband seeks reimbursement of 100% of expenses that were solely for the wife’s benefit, and 50% of the expenses that were for the benefit of the family.

[80] I find that the expenses claimed are reasonable, as is the request for reimbursement. As a result, the husband shall be reimbursed for these expenses. The reimbursement amount of $16,576 shall be set off against the retroactive support that this court has found to be owing.

F. Is the Husband Entitled to Occupation Rent?

[81] The matrimonial home was jointly owned. The wife had exclusive possession from December 2012 until July 2016, when the home was sold. The husband blames the delay in the sale of the home on the wife, and seeks $44,415 in occupation rent. The wife states that both parties were arguing over who would pay for the municipal water hook up and over which real estate agent to use. She argues that there is no basis for the occupation rent claim.

[82] When the parties purchased the matrimonial home, it did not have its own municipal water hook-up. The parties were able to access water because they had an agreement with a neighbour. After they separated, they learned that they had to install a municipal water hook-up on the property before it could be sold.

[83] On December 19, 2013, the court made an interim order, on consent, that the matrimonial home be listed and sold. The parties were to agree on an agent, cooperate in the sale and equally fund the water hook-up.

[84] On September 30, 2014, the court made a further interim order, on consent, directing the sale of the matrimonial home and the arrangements for the water hook-up, both of which were to take place within 15 days. In 2015, the husband amended his pleadings to include a claim for occupation rent.

[85] In October of 2015, the court made another order providing direction for cooperation regarding the sale of the matrimonial home.

[86] In May of 2016, the court made yet another order regarding the sale of the matrimonial home. On consent of the parties, the court ordered the listing price

[87] The parties both signed an Agreement of Purchase in sale in May and the house sale closed on July 25, 2016.

[88] Occupation rent is a discretionary remedy to be granted only in exceptional circumstances. The onus is on the claimant to satisfy the court on a balance of probabilities that the factors weigh in favour of ordering occupation rent: see Rebiere v. Rebiere, 2015 ONSC 1324 at paras. 36-8.

[89] I have considered the following relevant factors, some of which are set out in Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] O.J. No. 2096 (C.A.):

i. The claim for occupation rent was made in 2015, so there was some delay in making the claim. ii. The wife had exclusive possession of the matrimonial home for approximately three and a half years. This is a fairly significant period of time. It was to her advantage to live there mortgage-free. iii. The husband was unable to realize on his equity in the property until it was sold. iv. The property was mortgage-free so no mortgage payments were made. v. The husband has been reimbursed for family expenses that he paid post-separation. In my view, the reimbursement of these expenses effectively balances out any inequity that the husband may have suffered by the wife’s continued occupation of the matrimonial home. vi. Two of the parties’ children resided in the home after the husband moved out. Elliott lived there until it was sold, and Isabelle lived there until July 1, 2015.

[90] In addition to the factors set out above, the husband submits that the wife deliberately delayed the sale of the matrimonial home and therefore should pay him occupation rent.

[91] Both of the parties testified at trial and gave their own version of the events surrounding the sale of the matrimonial home. The parties filed numerous exhibits relevant to the sale, including: correspondence between the parties their lawyers and/or the real estate agents; listing agreements; offers to purchase; and court orders. The orders directing the listing and sale of the home were made on motions brought by both parties, and were made on consent.

[92] There was significant hostility in the correspondence discussing attempts to arrange the water hook-up installation and the sale of the home. The evidence of the parties reveals that there was a high degree of animosity between the parties. The bitter tone of their communications escalated the conflict between them.

[93] Each party now blames the other for the delays in the sale of the home. It is indeed unfortunate that the parties could not agree on many of the issues related to the sale of the home. In my view, it is not necessary to form any sort of credibility assessment of the parties’ evidence regarding who may have been responsible for the delays.

[94] Neither party disputes that there was a high degree of conflict when the house was being sold. The parties had difficulty communicating about installing the water hookup that was necessary to sell the home. They could not agree on an agent, and so they each had their own selling agent. They could not agree on a listing price. They were unable to communicate effectively about the sale of the home, or any other issue for that matter.

[95] Neither party demonstrated exemplary conduct or attempted to diffuse the conflict. Although the wife certainly benefited from having exclusive possession of the home for three and a half years, there is insufficient evidence to support a finding that she deliberately delayed the sale.

[96] On the basis of the evidence called at trial, I am unable to conclude that either party deliberately dragged out the process for the sale of the home. Having regard to all of the evidence, I cannot find that one party was more unreasonable than the other. I do find, however, that they both contributed to the animosity which caused the sale of the home to take much longer than it should have.

[97] I find that the circumstances were not exceptional and I decline to make an order for payment of occupation rent.

[98] Even if I am wrong on this issue, I find that there is an insufficient basis upon which to quantify any calculation of occupation rent. In this case, the husband called an expert to give an opinion regarding the value of occupation rent for the home. It is well-settled that a trial judge is entitled to rely on some, all, or none of an expert’s opinion: see Bortnikov v. Rakitova, 2016 ONCA 427.

[99] In this case, I give little weight to the evidence of the husband’s expert. The expert selected comparison homes that were in neighbourhoods with significantly different proximity to public transit and other amenities. In addition, there were few single-family larger bungalows listed for rent to provide comparisons for the report. In my view, the comparison properties provide little value. There is therefore an absence of evidence upon which to quantify occupation rent, even if it were ordered.

[100] For all of these reasons, the claim for occupation rent is dismissed.

IV. FINAL ORDERS

Orders on Consent

[101] The court makes the following orders on consent:

1. The Applicant Wife shall have sole custody of the child Elliott Haras Camp (male) born February 23, 2002. The child’s primary residence shall remain with the Applicant Wife. The Respondent Husband shall have access to the child in accordance with the child’s wishes.
2. The Respondent Husband’s arrears of section 7 special and extraordinary expenses shall be fixed in the amount of $2,800.00 as of May 24, 2017.
3. The parties shall contribute towards the following section 7 special and extraordinary expenses in proportion to their respective incomes, for the child of the marriage, namely, Elliott Haras Camp, born February 23, 2002: (a) Same shall be limited to dental, medical and educational expenses, including tutoring, not covered by a plan and the Applicant Wife's and the Respondent Husband's consent shall be required; such consent is not to be unreasonably withheld; (b) The Applicant Wife shall provide the Respondent Husband with a copy of the receipt of the expense within thirty (30) days of incurring such expense; (c) The Respondent Husband shall pay his proportionate share of the expense outlined at (b) above within fifteen (15) days of receipt of the proof outlined at (b) above.
4. The Respondent Husband shall maintain Elliott on available benefits from his employer so long as Elliott remains a child of the marriage.
5. The Respondent Husband shall continue to maintain the current policy of insurance in the sum of $200,000.00 so long as child and spousal support are payable and such policy exists with his employer PACCAR Inc.
6. In the event that the Respondent Husband fails to maintain the life insurance policy(ies) as per paragraph 5 above, then his Estate shall be subject to a first charge in favour of the Applicant Wife in the amount of $200,000.00.
7. The Applicant Wife and the Respondent Husband shall be entitled to claim with the Canada Revenue Agency the proportion of section 7 expenses to which she and/or he has contributed in respect of the child of the marriage namely, Elliott Haras Camp, born February 23, 2002 including, but not limited to, childcare expenses, children's fitness amounts, children's arts amounts, tuition, education and textbook amounts and medical expenses, where applicable. Where the Applicant Wife and the Respondent Husband are not both able and/or permitted to make such claim, then the party making such claim shall reimburse the other party that party's proportionate share of such claimed amount.
8. The parties shall contribute towards the costs of the child of the marriage, namely, Elliott Haras Camp, born February 23, 2002 Ontario post-secondary expenses in proportion to their incomes as follows: (a) Post-secondary expenses shall include tuition, ancillary expenses billed by the institution, residence and meal plan (or rent, utilities and up to $300.00 per month for food if the child is not in residence), books and lab costs; (b) The Applicant Wife shall provide to the Respondent Husband, by no later than December 31st for the previous Fall Term and no later than April 30 for the previous Winter Term, copies of any and all documentation in respect of (a) above for which reimbursement is sought (including grocery receipts); (c) The Respondent Husband shall pay his proportion of the expenses outlined in (a) within ten (10) days of receipt of the documentation outlined at (b).
9. For as long as child support is to be paid, the parties shall provide updated income disclosure to the other by June 1st of each year commencing 2018.
10. Either party may seek a change in spousal support on the basis of a material change in circumstances which may include, but is not limited to: (a) a material change in either party’s financial position including, but not limited to, a party retiring when that party becomes eligible for pension; (b) a change causing undue hardship for either party or the children; (c) a change in the child’s residence that affects child support; or (d) the Applicant Wife remarrying or entering into a relationship akin to marriage. Whoever seeks a change in the above mentioned support provisions shall give the other, in writing: (a) notice of the proposed change; (b) evidence supporting the proposed change; and (c) any request for information necessary to determine the issue as contemplated by any currently applicable statutes and regulations, the Family Law Act, or any successor legislation, regulations, or Rules.
11. The Applicant Wife’s claims for: (a) the payment of child and spousal support arrears to August 31, 2014 in the amount of $37,000.00 and as per the Order of Justice Campbell dated September 30, 2014; (b) the sum of $2,850.00 representing arrears of section 7 expenses to date; (c) the sum of $13,885.00 representing payment on account of net family property for a total of $53,735.00 shall be set off against the Respondent Husband’s claims of: (d) $39,000.00 representing payment of account of the parties’ RBC line of credit; (e) $10,000.00 representing the payment of interest on the RBC line of credit; and (f) $5,000.00 representing payment of interest on the Respondent Husband’s TD line of credit, for a total of $54,000.00.
12. The parties agree the Respondent Husband shall not pursue re-payment for the amounts as stated above in paragraphs 11 (e) and (f).

Orders Not On Consent

[102] The court makes the following orders, not on consent:

13. The s.7 expenses shall be apportioned according to their respective incomes. The husband’s income is $171,398 and the wife’s income is $30,000. Therefore, the husband shall pay 85% and the wife shall pay 15% of the s.7 expenses as set out in paragraph 3 above.
14. The Respondent Husband shall pay to the Applicant Wife the sum of $2,646 in retroactive child support and the sum of $75,200 in retroactive spousal support, from September 1, 2014 to June 30, 2018. The spousal support amount shall be adjusted for tax purposes, and will be subject to the agreement of the parties regarding the rate to be applied or subject to further submissions and a ruling on the rate to be applied.
15. Commencing July 1, 2018 and on the first of the month thereafter, the Respondent Husband shall pay child support to the Applicant Wife for the support of the child Elliott Camp (male) born February 23, 2002 in the amount of $1,453 based on the Respondent Husband’s 2016 line 150 income of $171,398 and the Child Support Guidelines.
16. On July 1, 2018 and then every June 1st thereafter, the parties shall exchange their Income Tax Returns and Notices of Assessment. Any adjustments to child support shall be made by July 1st annually.
17. Commencing July 1, 2018 and on the first of the month thereafter, the Respondent Husband shall pay spousal support to the Applicant Wife in the fixed amount of $3,600. This amount of support is based on the husband’s income of $171,398 and the wife’s income of $30,000.
18. The spousal support amount shall be included in the Applicant Wife’s income in the taxation year for which it is paid and same shall be deducted from the Respondent Husband’s income in the year in which spousal support is paid.
19. Spousal support shall be paid on an indefinite basis and is only subject to a material change in the circumstances in accordance with paragraph 10 above.
20. The Respondent Husband shall be credited with $16,576 as reimbursement for family expenses paid post-separation.
21. The Respondent Husband’s claim for occupation rent is dismissed.
22. The reimbursement of expenses, in the amount of $16,576 owing to the Respondent Husband, shall be set off against the total retroactive child and spousal support owing to the Applicant Wife. This figure shall be determined once the calculation of spousal support, net of tax, is determined. The net amount of retroactive support shall be paid to the Applicant wife from the Respondent Husband’s share of the proceeds of the sale of the matrimonial home currently held in trust. Once this payment has been made to the Applicant wife, the parties shall be paid their remaining share of the proceeds of the sale of the matrimonial home.

V. COSTS

[103] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle. The wife shall provide costs submissions by July 9, 2018; and the husband shall provide any response by July 23, 2018. In the event that submissions are not received from either party by July 23, 2018, costs shall be deemed settled.

Braid, J.

Released: June 22, 2018

Schedule “A” – Support Calculations

Retroactive Child Support

Year	Income	# of Children	Table Amount	Amount Paid	Amount Owing/Overpaid
Sept - Dec 2014	H-$169,161 W-$30,000	2	$2,230 / month (4 months = $8,920)	$1,750 / month (4 months = $7,000)	$1,920 owing
Jan – June 2015	H-$156,321 W-$30,000	2	$2,084 / month (6 months = $12,504)	$1,750/month (6 months = 10,500)	$2,004 owing
Jul – Dec 2015	H-$156,321 W-$30,000	1	$1,310/month (6 months = $7,860)	$1,750 for 4 months ($7,000.00) & $1,405 for 2 months ($2,810)	$1,950 overpaid
2016	H-$171,398 W-$30,000	1	$1,421/month (12 months = $17,052)	$1,405/month (12 months= $16,860)	$192 owing
2017	H-$171,398 W-$30,000	1	$1,421/month (12 months = $17,052)	$1,405/month (12 months= $16,860)	$192 owing
Jan – June 2018	H-$171,398 W-$30,000	1	$1,453/month (6 months = $8,718)	$1,405/month (6 months = $8,430)	$288 owing

TOTAL RETROACTIVE CHILD SUPPORT (TOTAL OWING – TOTAL OVERPAID) = $2,646

Retroactive Spousal Support

Year	Income	# of Children	Spousal Support Amount	Amount Paid	Amount Owing/Overpaid
Sept-Dec 2014	H- $144,161 W- $30,000	2	$2,400/month (4 months = $9,600)	$1,600/month (4 months=$6,400)	$3,200 owing
Jan – Jun 2015	H-$141,321 W-$30,000	2	$2,400/month (6 months=$14,400)	$1,600/month (6 months=$9,600)	$4,800 owing
Jul – Dec 2015	H-$141,321 W-$30,000	1	$2,800/month (6 months = $16,800)	$1,600/month (6 months=$9,600)	$7,200 owing
2016	H-$171,398 W-$30,000	1	$3,600/month (12 months = $43,200)	$1,600/month (12 months = $19,200)	$24,000 owing
2017	H-$171,398 W-$30,000	1	$3,600/month (12 months = $43,200)	$1,600/month (12 months = $19,200)	$24,000 owing
Jan – Jun 2018	H-$171,398 W-$30,000	1	$3,600/month (6 months = $21,600)	$1,600/month (6 months = $9,600)	$12,000 owing

TOTAL RETROACTIVE SPOUSAL SUPPORT = $75,200

Calculation of Ongoing Support – July 1, 2018 Onward

Income	# of Children	Child Support Table Amount	Spousal Support Amount
H- $171,398 W- $30,000	1	$1,453/month	$3,600/month