Court File and Parties

COURT FILE NO.: FC-13-2569 DATE: 2018/07/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Chantal Teena Ouellette, Applicant – and – Gias Uddin, Respondent

COUNSEL: Douglas Menzies for the Applicant John E. Merner for the Respondent

HEARD: February 14, 15 and 16, 2018 (at Ottawa) with written submissions received March 26, 2018

REASONS FOR JUDGMENT

SHELSTON J.

Overview

[1] The parties started living together in May 2005 in Ottawa. They are the parents of one child, Ali Jean-Guy Uddin, born March 17, 2006. The parties married on October 8, 2005 and separated in Ottawa on August 15, 2013.

[2] On October 29, 2013, legal proceedings were commenced by the applicant seeking a divorce and corollary relief. By answer dated April 8, 2015, the respondent sought corollary relief. Both parties amended their pleadings by consent order of Justice Aitken dated February 20, 2015.

[3] On January 21, 2014, Master Roger (as he then was), ordered, inter alia, the following:

a) the respondent to pay child support in the amount of $488 per month to the applicant commencing February 1, 2014, based on the respondent’s stated income of about $54,000 in 2013;

b) the respondent to pay spousal support to the applicant in the amount of $400 per month commencing February 1, 2014, based on the respondent’s stated income of about $54,000 and $15,600 for the applicant in 2013;

c) ordered both parties to make full disclosure by February 28, 2014;

d) confirmed that the parties agreed that the businesses were to be valued as of the date of marriage and as of August 15, 2013 with the valuation reports to be provided by May 31, 2014;

e) ordered the respondent to provide by February 28, 2014 bank account and credit card statements for all accounts and cards in which he has an interest for the period of August 2012 to present;

f) ordered the parties to disclose their 2013 income tax information; and

g) granted the parties leave to attend questioning after disclosure.

[4] On February 20, 2015, with the consent of the parties, Justice Aitken made a temporary order which provided, inter alia, as follows:

a) granted leave of the parties to amend their pleadings;

b) ordered the respondent to produce business valuations for the two restaurants within 30 days;

c) on a temporary basis, ordered that neither parent was to remove the child from the province of Ontario or Quebec without the written consent of the other parent or a court order;

d) ordered the parties to attend questioning by April 2015;

e) on a temporary, without prejudice basis, the applicant was granted interim exclusive possession of the matrimonial home and that for the months of March, April and May 2015 the respondent was to continue to pay the mortgage, taxes and insurance on the matrimonial home and the car payment and the car insurance for the vehicle driven by the applicant; and

f) the interim child and spousal support order of Master Roger dated January 21, 2014 was to be held in abeyance until June 1, 2015, in that the interim payments regarding the matrimonial home and car shall replace the interim spousal and child support order for the months of March, April and May 2015.

[5] By order dated June 10, 2016, Justice Kershman made the following, inter alia, order:

a) appointed the Office of the Children’s Lawyer;

b) ordered the respondent to provide the disclosure attached as Schedule A to the order within 45 days;

c) severed the divorce from the corollary relief.

[6] The parties were divorced by divorce order of Justice Corthorn dated August 22, 2016.

[7] On October 20, 2016, with the consent of the parties, Justice Kershman ordered, inter alia, the following:

a) the respondent to provide appraisals by certified real estate appraiser within 90 days for 179 George Street units 102 and 1108, Ottawa, Ontario and 45-47 Baie Ladoucer, L’Ange Guardian, Quebec;

b) ordered the respondent to provide written evidence of indebtedness for individuals including his brother, Asharf Uddin; and

c) placed the matter on the May 2017 trial sittings.

[8] The issues for this trial are as follows:

a) custody and access regarding the child;

b) retroactive and prospective child support and section 7 expenses;

c) retroactive and prospective periodic spousal support;

d) lump sum spousal support;

e) equalization of the net family property;

f) a restraining order against the respondent; and

g) costs.

Credibility

[9] The evidence from the parties is contradictory on many issues. To be able to make findings of fact, I must determine which party is more credible than the other. In Dunford v. Hamel, 2018 ONSC 3427, Jarvis, J. made the following observations, which I adopt, on the issue of credibility assessments of witnesses during a trial:

a) assessing credibility is, in every respect, a holistic undertaking incapable of precise formulation;

b) the trial judge need not believe or disbelieve a witness’s testimony in its entirety;

c) the trial judge may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence; and

d) the trial judge can assess credibility by considering different factors that include internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candour from evasive or strategic testimony) and, to a lesser degree, witness demeanour. This list is not exhaustive.

[10] With respect to the evidence of the applicant, I find that she testified in a straightforward manner and that she answered the questions directly, promptly and in a reasonable way. I found the applicant to be credible.

[11] On the other hand, I find that the respondent was not a credible witness. I find that the respondent was evasive in his answers, part of his testimony was contradicted by his own brother, his viva voce evidence was contradicted by documentary evidence and when confronted with a contradiction, he changed his testimony. Some of the examples are as follows:

a) in the respondent’s 2009 income tax return, he declared an annual income of $30,946.01 but indicated that he had made gifts of $20,730.81 and spent $16,734.07 on renovations to a home. The respondent testified that he used savings to make the payments for the gifts and the renovations without providing any corroborative documentary evidence. I find that the respondent’s declared income is not credible when compared to the amount he spent on gifts and renovations;

b) when the respondent purchased the Greatwood Crescent property, he testified the original deposit of $120,000 came from the sale of another real property on Wood Park. However, during questioning prior to the trial, the respondent indicated the two original deposits came from his savings. I find that the respondent’s testimony is contradicted by his own words;

c) in 2010, the respondent admitted that he sold his property located at 25 Greatwood Crescent, Ottawa, Ontario and that it was not his principal residence. The respondent admitted that he did not declare any capital gain attributable to that sale on his income tax return;

d) in 2011, the respondent admitted that he had taken $70,000 out in cash from his business known as Xpresso Café on a tax-free basis;

e) in the respondent’s 2011, 2012 and 2013 federal income tax returns, the respondent indicated that he had income tax deducted in the amount of $10,379.28 but that his annual income was $12,000. The respondent’s testimony was that his rental income was being deducted by payroll deductions. This explanation made no sense;

f) during his testimony, the respondent denied that he had given an undertaking during questioning to provide a tax return showing he made more than $50,000 in any taxation year. However, when confronted with the undertaking, in cross-examination, the respondent admitted that he had given the undertaking but that he never replied to that request;

g) during his testimony, the respondent stated that he was involved with a pizzeria and that it is owned by his brother, Afhra Uddin. However, his brother testified that it was the respondent who opened the pizzeria in 2017 and it was the respondent who obtained a loan of $300,000 from the Business Development Corporation for the pizzeria. In cross-examination, the respondent admitted that he had obtained the loan and that it was his business;

h) the respondent admitted during cross-examination that he failed to provide all of the bank statements from the Bank of Montreal since separation and that he only provided the statements from August 2012 to January 2013 despite court orders requiring them to provide all of his bank statements;

i) the respondent testified that he had one Bank of Montreal MasterCard statement. However, in cross examination, when confronted with a copy of a letter from his counsel dated July 29, 2014 which indicated that the respondent had two Bank of Montreal MasterCard accounts, the respondent admitted that he had two statements thereby contradicting his oral testimony;

j) despite being ordered to provide business valuations, the respondent never did;

k) the respondent testified that he was earning $1,000 a month of income at the time of the trial, was driving a Mercedes and was able to obtain a $300,000 loan from BDC. I find that the respondent’s testimony is simply not credible;

l) despite the parties’ separation in August 2013, in the respondent’s 2013 and 2014 federal income tax returns, the respondent nevertheless claimed the applicant as a dependent;

m) over the years, the respondent has claimed charitable donations related to a charity in Bangladesh. The respondent’s testimony was that the charity gives the respondent a charitable donation in accordance with the amount of monies raised by the charity. In 2016, the amount was $12,099. In 2012, the respondent indicated the amount was $28,360 which he did not include in his tax return. The testimony of the respondent is not credible; and

n) during cross-examination, the respondent denied that he caused any damage to the matrimonial home while the parties resided together. However, the respondent admitted during questioning on April 29, 2016 that he caused damage to the matrimonial home as a result of being angry. Further, in paragraph 12 of his Fresh and Amended Answer signed on April 8, 2015 he stated:

The respondent admits that on one two occasions he damaged the residence following severe provocation by the applicant. In order to avoid further contact with the applicant the respondent immediately left the residence.

[12] In the order of Justice Kershman dated June 10, 2016, the court ordered that the respondent provided specific disclosure set out in a Schedule A to be produced by the respondent on or before July 12, 2016. Some but not all of the information has been provided. For example, the MPAC for the years 2013 and 2014 regarding the values of units 102 and 1108 – 179 George Street, Ottawa, Ontario and 324 Laurier Avenue, Ottawa, Ontario were never produced.

[13] Further, the respondent ignored undertakings given at the questioning that took place on April 29, 2015. Despite alleging that the respondent was able to acquire the $120,000 down payment for the purchase of 25 Greatwood Crescent, Ottawa, Ontario as a result of savings, he failed to produce tax returns for the years in which he made more than $50,000 that he undertook to provide.

[14] The respondent testified that currently he is the owner of only one restaurant. The respondent testified that he only owned the pizzeria in the Byward market and that his brother, Ashraf Uddin, owned Shafali Dalhousie. However, the website for Shafali indicates that the three brothers, including the respondent, are co-owners of the restaurants.

[15] When I take into consideration the evidence of the respondent in chief compared to his answers in cross-examination, his demeanour during cross-examination, the contradictions in his evidence, his admissions in cross-examination and that he was not forthright in his examination in chief, it leads me to conclude that he is simply not a credible witness.

[16] Consequently, when there is a conflict in the evidence between the applicant and the respondent, I will prefer the evidence of the applicant.

Custody and Access

Position of the applicant

[17] The applicant’s position is that she should be granted sole custody of the child with final decision-making power and that the child’s ordinary residence should be with the applicant.

[18] In addition, the applicant seeks the authorization that she immediately undertake the testing or evaluation of the child with a complete physical examination at the Children’s Hospital of Eastern Ontario to determine whether there are physiological, nutritional, allergic or other impediments which contribute to the child’s difficulty or otherwise impede maximum development of his capabilities and that there would be a psycho-educational assessment undertaken with the applicant paying one third and the respondent’s two thirds to include recommendations for the child’s schooling, tutoring, extracurricular activities, counselling and treatment.

[19] Further, the applicant seeks an order that the child participate in a psychological assessment by a qualified clinician with a PhD in psychology and an active practice in the area to provide a diagnosis and recommendations for treatment of psychological difficulties or conditions of the child.

[20] Finally, the applicant seeks a finding that it would be consistent with the best interests of the child if the respondent follows a course in therapy or counselling as recommended by the child’s therapist or others involved in the child’s care, that he be directed to actively support the applicant’s initiatives with regards to the assistance of the child and that he encourage the child to participate fully and enthusiastically so as to derive the maximum benefit from these plans.

Position of the respondent

[21] The respondent’s position is that there should be an order for joint custody with the day-to-day residence of the child to be with the applicant subject to access by the respondent being one overnight per week, regular telephone access and an extended period of two weeks access in the summer.

[22] At the trial, the respondent refused to agree that the child be tested or evaluated with a complete physical examination at the Children’s Hospital of Eastern Ontario to determine whether there are physiological, nutritional, allergic or other impediments which contribute to the child’s difficulty or otherwise impede maximum development of his capabilities.

[23] On the issue of the psycho-educational assessment at the trial, while the respondent in his examination in chief opposed such an assessment, in answering questions from me, he agreed to the assessment.

[24] The respondent submits that there were no experts called to substantiate the applicant’s position and as such the court is lacking a proper roadmap for services to be obtained, such as a comprehensive medical diagnosis. The respondent submits that he agreed to the assessment that will assist at arriving at an official diagnosis and, until that time, no finding of fact in this regard should be made.

Legislative and jurisprudential framework

[25] A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order granting custody of or access to any or all children of the marriage (s. 16(1) Divorce Act).

[26] The court may make an order under this section granting custody of or access to any and all children of the marriage to any one or more persons (s. 16(4) Divorce Act).

[27] In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child (s. 16(8) Divorce Act).

[28] In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with the other spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such conduct (s. 16(10) Divorce Act).

[29] The only relevant issue in custody and access matters is the best interests of the child (Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27).

[30] The jurisprudence provides guidelines for the court in considering a joint custodial regime as follows:

a) the parties need not consent to an order for joint custody but before ordering joint custody, the court must have some evidence that the parties are able to communicate effectively with each other (Kaplanis v. Kaplanis, 2005 ONCA 1625, 2005 CarswellOnt 266 OCA);

b) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict and the impact this will have on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint custody may be appropriate (Ladisa v. Ladisa, 2005 ONCA 1627, 2005 CarswellOnt 268 OCA);

c) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 ONCA 26573, 2006 Carswell on 4789 OCA);

d) where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate (Khairzad v. Macfarlane, 2015 ONSC 7148 and Fraser v. Fraser, 2016 ONSC 4720); and

e) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication (Khairzad v. Macfarlane, 2015 ONSC 7148).

Analysis

[31] After the birth of the child the applicant was bedridden. I find that the respondent did assist the applicant for at least three to four months after the birth of the child. The parties engaged the services of at least four nannies to assist in caring for the child up until the child started school.

[32] I find that both parents were caring for the child during this period of time. From 2011 to early 2013, the parties traveled between Ottawa and the Bahamas where the respondent intended to set up a restaurant. The plan was that the child was to be homeschooled by the applicant. When the parties came back to Canada and the child started school, the father would drop off and pick up the child at school if the applicant was unable to do so.

[33] After the separation in August 2013, the applicant was responsible to drop the child off at school and the respondent was responsible to pick the child up, make supper for the child and return him to the applicant’s home. The child’s primary residence was with the applicant.

[34] After the separation, there was difficulty between the parties with respect to access by the respondent to the child. The parties communicated by phone or text. The respondent testified that after the parties attended a case conference, his access to the child improved.

[35] The applicant testified that prior to separation, she was subjected to verbal and physical abuse by the respondent such that he twisted her arm, stood in a doorway, through cups at her and punched her in the leg. One time she left the home and went to a neighbour’s and was convinced that he was following her. She testified she did not recognize that what she was living through was abuse at the time and she did not know how to handle it. She admitted that there were no police reports about any allegations of abuse prior to separation. The applicant testified that when the parties came back from the Bahamas in 2013, they resided in two cottages owned by the respondent and that during this period of time, the parties attended counselling where the applicant advised the counsellor that she was afraid. She finally moved from the cottage to Ottawa because she felt unsafe with the respondent living next door to her.

[36] The respondent denies these allegations.

[37] The applicant testified that the respondent tries to intimidate her and has since separation attempted to electronically watch her movements by her phone, iPad and her computer. I find that the testimony of the applicant regarding her fear of the respondent to be credible. During her testimony, she was consistent and specific as to the incidents and her mental state with respect to the fear of the respondent. I do not find that there is evidence, on a balance of probabilities, that the respondent attempted to electronically watch her movements by her phone, iPad and her computer.

[38] Subsequent to separation, the situation between the parties has worsened. Since separation, there have been calls to the Ottawa Police Service starting in September 2013 where the applicant alleged that the respondent was stalking and harassing her. The police have investigated the various incidents without filing any charges against the respondent. However, the reports indicate the fear that the applicant feels towards the respondent to such a degree that in this proceeding she is seeking a restraining order against him. The applicant testified she is fearful of the respondent and is concerned that he will harass her. In cross-examination, the applicant admitted that there were two calls since 2013 with the last incident being in 2016. The police closed their investigation and indicated that the parties need to set boundaries and that the respondent should not attend at the applicant’s home uninvited.

[39] The applicant testified that based on the child’s current lack of progress in school he probably will not graduate from high school while the respondent does not agree and he believes that with love and care, the child can graduate. The respondent testified that the applicant tries to convince the child that he is not normal while the respondent stated that he is normal.

[40] Both counsel make reference to recommendations made by the Office of the Children’s Lawyer (“OCL”) where she indicated that there should be an order for joint custody and that the parties should engage in counselling if they cannot agree on parenting matters. The respondent proposes that this be the final order. In her submissions, the applicant concedes that the child loves his father and wants to continue to have contact with him. However, the OCL report was not contained in the trial record, neither party filed any report from the OCL and no one testified from the OCL. As such, without any evidentiary basis, I cannot consider any recommendations made by the OCL. Further, even if the recommendations were tendered as evidence, the recommendations are only another piece of evidence that the court is to consider in making its determination as to what is in the best interests of the child.

Educational issues

[41] Historically, the parties have differed on whether or not the child has a learning disability. The child has attended the following schools:

a) kindergarten and grade one at a public school in Ottawa;

b) grade two, three and four, Manor Park Elementary School, in a regular program;

c) grade five, Queen Elisabeth school, in a specialized program; and

d) grade six, Manor Park Elementary School, in a regular program.

[42] The school recommended that the child undergo a speech and language assessment which concluded with the report dated February 19, 2014 from Ms. MacLeod, the speech language pathologist of the Ottawa Carleton District School Board. In her report, she concludes that the child’s receptive language skills fell within the average range and that he had mild difficulties in processing word relationships and following directions in the absence of visual supports. She indicated that there were moderate narrative comprehension difficulties and moderate difficulties characterized by word retrieval, formulation and narrative weaknesses. Finally, she had noted mildly delayed phonological awareness skills were determined.

[43] On October 21, 2014, a psychological consultation report was completed by the psycho-educational consultant and psychology supervisor for the Manor Park Public School. The assessment indicated that the child had considerable short-term memory difficulties, difficulties with receptive language, low average processing speed and significant reading and writing challenges.

[44] On January 27, 2015, the learning support teacher at the Manor Park Public School, Ms. Steele, recommended that the child be referred for a neurological assessment in order to screen for any medical/physical disorders that could be contributing to the child’s difficulties and that such an assessment could rule out any sensory issues or any seizure disorder. Further, Ms. Steele indicated that the child was receiving intensive remedial assistance for learning difficulties affecting his academic skills development.

[45] An individual educational plan was formulated for the child for the 2015-2016 school year which indicated that the child had significant difficulties with language-based activities, visual memory and auditory memory. Further information indicated difficulties in the area of word retrieval and categorical reasoning and included a requirement that the child receive assistive technology as an essential service for him to access the curriculum.

[46] At separation in September 2013, the child was attending a regular program at a public elementary school. Even though he was in grade two, his reading level was at grade one in both English and French.

[47] By the spring of 2015, the respondent denied that the child was having any difficulties at school. In the spring of 2016, the school recommended that to the child attend a specialized class. At that time, the parties agreed.

[48] The child was then placed, with the consent of the parties, in the Queen Elizabeth School which provided specialized classes for the children. While at the Queen Elizabeth School, the curriculum was modified for the child and an occupational therapist started to work with him. The problem was that there was no medical diagnosis of the child being delayed or being designated as “special needs”.

[49] In an email dated May 17, 2017, the special education teacher at the child’s school indicated the following:

However, we have clearly communicated to everyone that we do believe that there is a significant issue that is preventing Ali from progressing at the same rate and in the same way as his same age peers at school. Please consider diagnoses for Ali on on-going process.

[50] The school board indicated to the parents that the child had no medical diagnosis to be able to classify the child as “special needs”. In the individual educational program, the child was identified as having a “learning disability”.

[51] The child was making progress but the respondent refused to allow the child to continue to attend such school so in September 2017, the child returned to Manor Park for grade six in a regular class. The child has not been doing as well as he was in the specialized school at Queen Elizabeth.

[52] The applicant’s evidence is that the child is very anxious when going to sleep and when going to school which contributed to his absences and late attendances. The applicant indicated the child had difficulty in managing his life, whether being homework, school or activities.

[53] The child’s report cards, the speech and language assessment, the psychological consultation report and the clinician report all prepared by the school board over a period of time indicate that the child has significant challenges.

[54] During his testimony, the respondent denied that the child has a problem. The respondent testified that the applicant tries to convince the child that he is not normal. The respondent believes that the fighting between the parents is causing the child problems and that the child needs to attend a regular school to feel normal. The respondent denies that the child has any disability.

[55] I find that the applicant is seeking to follow the advice of the child’s family doctor and the various individuals involved in the child’s education. The child’s individual educational plan for the school year 2016-2017 indicates that the child has a learning disability and that based on the education assessment conducted on January 20, 2014, the speech/language assessment dated February 10, 2014 and the psychological assessment dated February 20, 2014, the child was designated as being learning-disabled.

[56] In the child’s determination record for the school year 2017-2018, the child was designated as learning disabled and both parents signed the determination record.

[57] Despite overwhelming evidence that the child has a learning disability, the respondent continues to ignore the evidence and indicates that the child does not have a disability, but he needs to attend a school with normal people and that he will graduate from high school.

[58] While I am sympathetic to the respondent’s view that his child does not have a learning disability, it is abundantly clear to me that this child has such a disability and that further investigative measures must be taken to ascertain if the child’s challenges are related to a medical condition.

[59] I find that it was not in the child’s best interests to leave the Queen Elizabeth School and returned to a regular program. The evidence supports the finding that the child has a learning disability that is undiagnosed. This child should have had investigative procedures undertaken to determine if he had a medical issue causing his learning disability. I find that the respondent has opposed any such interventions and has not acted in the best interests of his child.

[60] In the circumstances, this is not a case for joint custody because the parties cannot agree on the major decisions regarding the child’s education and medical issues. In the circumstances, I grant the applicant sole custody of the child and grant to her the right to make decisions regarding the child’s education, health and activities.

[61] I order that the applicant advise the respondent by email of any potential decision that she intends to make to permit the respondent to have input into such decisions. In the event that the parties cannot agree, the applicant shall have the right to make the final binding decision.

[62] On the consent of the parties, I order that there be a psycho-educational assessment conducted on the child and that this expense shall be shared as a Section 7 expense.

[63] I order that the child shall submit to a physical examination at the Children’s Hospital of Eastern Ontario to attempt to ascertain if he has a medical diagnosis with respect to his challenges.

[64] On the issue of a psychological assessment, I will defer that claim until further medical information is obtained regarding any potential medical diagnosis for the child.

[65] On the issue of compelling the respondent to attend therapy or counselling, I reject such a request as there is no evidence before the court as to what type of therapy or counselling would be proposed. Without an evidentiary basis, I am unable to consider whether such an order would be in the best interests of the child.

[66] While I agree that the applicant should have sole custody and final decision-making power regarding the child, I acknowledge that the applicant has a very negative view of the respondent’s role in the child’s life. I acknowledge that the respondent and the applicant have attended parent-teacher interviews together. However, for the reasons previously given, I find it is in the child’s best interests that the applicant be the final decision-maker. That being said, I find that the respondent has an important and vital role to play in the child’s life and for that reason, I order the following:

a) the respondent shall be entitled to receive copies of the child’s report cards directly from the school and shall be permitted to attend parent-teacher interviews (separately from the applicant); and

b) the respondent shall be entitled to receive information from any of the child’s health care providers including any therapist retained by the applicant.

The child’s primary residence and access

[67] On the issue of the child’s primary residence, the parties are in agreement that it will be with the applicant. The only court order regarding access is the order of Justice Kershman dated October 20, 2016 where he granted the respondent reasonable access on reasonable notice.

[68] The respondent is seeking overnight access one day per week, telephone access and two weeks in the summer. The applicant submits that the order should be that the respondent will have reasonable access as arranged by the parties from time to time.

[69] The respondent testified that he has had overnight access with his child but recently the child refused to spend any overnights with this respondent. The respondent testified that the child is very anxious when he is separated from his mother. He is fearful that people are hiding in the respondent’s apartment and that someone is going to hurt him and he has an unexplained fear of the unknown.

[70] The respondent acknowledges that based on the age of his son, if his son does not wish to spend time with the respondent, he is prepared to accept that decision.

[71] I accept the evidence of the applicant that she would welcome longer and regular access including overnight access but these attempts have been frustrated by the child or the respondent returning the child to the applicant.

[72] There was very little evidence on access presented during the trial. From the evidence, there is no evidence that the respondent has had overnight access to this child for an extended period of time such as two weeks summer vacation. While I accept that the access should be reasonable, the access must be in the best interests of the child. There is no evidence that the child has been in the care of the respondent for an extended period of time. Consequently, I reject the request for two weeks’ vacation with the child.

[73] With respect to telephone access, I have evidence that the child and the respondent communicate by text messaging. I grant to the respondent the right to communicate with his child by text messaging or by phone.

[74] Regarding the request for overnight access, the applicant agrees with that request. The evidence indicates that access has been arranged between the child and the respondent by the exchange of text messaging. This should continue and I grant the respondent the right to have overnight access with the child as arranged between the child and the respondent.

Travel and passport

[75] The applicant seeks to remove the restriction that neither party should remove the child from Ontario or Quebec without the written consent of the other parent or court order that was part of the temporary order of Justice Aitken dated February 20, 2015.

[76] I order that the applicant shall have the right to apply for and obtain a passport for the child without the written consent of the respondent. I order that the applicant is permitted to travel outside of Canada with the child for a vacation upon providing the respondent with 60 days written notice before the departure date of any proposed vacation which shall include a detailed itinerary indicating the departure date, the return date, the location of the vacation and the particulars of any air travel, if applicable.

[77] The respondent in his submissions made no such request.

Child Support

[78] To be able to determine the proper amount of table child support and the proportional sharing of any section 7 expenses, I am required to make an income determination of the parties.

[79] Since September 2010, the applicant has been employed in various capacities as a teacher. Since September 2015, she has been a full-time teacher with the Ottawa Catholic School Board. The applicant’s income tax return discloses an annual income as follows:

a) 2009, $35,435.66;

b) 2010, $7582.60;

c) 2011, $19,582.20;

d) 2012, $20,846;

e) 2013, no information;

f) 2014, $49,636;

g) 2015, $53,536; and

h) 2016, $73,240.64.

[80] Currently, she is employed on a full-time basis with the Ottawa Catholic School Board with an annual income of $74,520.

[81] With respect to the applicant, she has been an employee with the Ottawa Catholic school board since 2010 in different capacities. She has no other sources of income. Her income is to be determined in accordance with the income tax return line 150.

Determination of respondent’s income

[82] The respondent was born on March 4, 1964 and at the date of the trial was 53 years of age. The respondent came to Canada when he was approximately 18 years of age and worked as a busboy and waiter in Montreal. In 1984, he moved to Ottawa and worked in various hotels. In 1996, he became self-employed and opened his first restaurant on Dalhousie Street in Ottawa.

[83] At the date of the marriage, he owned a restaurant known as Shafali Byward in Ottawa. Over the course of the marriage, he owned and operated an art gallery and a series of restaurants including a café. At the time of the trial, he testified that he was earning $1,000 a month as employment income.

[84] The respondent’s income tax returns disclosed the following income:

a) in 2006, $65,290.87;

b) in 2009, $30,946.01;

c) in 2010, $32,985.74;

d) in 2011, $54,590.03;

e) in 2012, $63,597.80;

f) in 2013, $51,903.13;

g) in 2014, $53,677.15 with employment income of $12,000;

h) in 2015, $38,008.36 with employment income of $12,000; and

i) in 2016, $38,094.56 with an employment income of $12,000.

[85] The parties met in Montreal. They started dating in January 2005. While dating, the respondent told the applicant that he had $1,000,000 in assets, that he earned $150,000 a year and that he owned an apartment building and a sports car. He also told the applicant that he owned vacant property as well as a home for destitute children that he gifted to Child Haven International in Bangladesh.

[86] When the parties started living together, they agreed that both parties would work and, if they had children, the applicant would take time off work.

[87] When the parties started residing together, they lived at the respondent’s home on Fifth Avenue. The respondent rented out the second and third floor while the parties resided on the ground floor. The respondent admitted that he never declared the rental income from the Fifth Avenue property during the period of his ownership. During the marriage, the respondent refinanced a commercial kitchen and purchased two cottages near Buckingham using the Fifth Avenue property as the security for such loans.

[88] When the respondent sold the property on Fifth Avenue, he did not declare any capital gains for that portion of the residence that he rented during his period of ownership.

[89] The respondent was very secretive as to his finances throughout the marriage. The parties never had a joint bank account and the respondent rarely discussed his personal finances. For example, the respondent told the applicant that an apartment on Clarence Street in Ottawa was owned by his brother but if there was a problem with the apartment, the respondent would attend to deal with the issue.

Federal Child Support Guidelines

[90] In this case, the relevant part of Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as amended (the “Guidelines”) is as follows:

Imputing income

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[91] It is appropriate for the court to impute income to the payor where significant amounts of untaxed business income are used for payment of personal expenses. Further, such untaxed income needs to be “grossed up” because the Guidelines are based on gross income. (See Riel v Holland, 2003 ONCA 3433, 42 R.F.L.(5th) 120 Ontario Court of Appeal.)

[92] I agree with the comments of McGee J. in Michaud v Kasali, 2016 ONSC 443 where she stated at paragraph 49 the following:

49 Rule 19(1) (f) of the Guidelines is no more than an invitation to fill in the blank when a payor fails to provide income information, as it is when a payor is in default, or his pleadings are struck. The amount to be imputed must still be grounded in the evidence. The question to be asked is: what amount is reasonable in the circumstances?

Applicant’s position

[93] The applicant submits that the court should impute an income to the respondent of $200,000. The applicant submits that the respondent’s income tax returns are effectively a work of fiction and that the respondent has during the marriage received significant amounts of cash from his business that never appear as income on his personal income tax returns.

[94] The applicant submits that the lifestyle of the respondent does not correspond to the declared income on his income tax returns but that he is living on $100,000 of tax-free income that should be grossed up for income tax to between $150,000 and $200,000 per year.

Respondent’s position

[95] The respondent’s position is that his income should be determined to be $40,000 per year based on his income tax returns and the declared income contained therein.

[96] The respondent argues that he has been able to lead a very good lifestyle and purchase various properties by the sale of various properties and mortgaging of various properties. On September 30, 2001 the respondent purchased 51 Fifth Avenue, Ottawa, Ontario for $292,500 with a mortgage of $219,375. On October 2, 2006, the respondent re-mortgaged the said property for $325,000. Part of the refinance was used to purchase a property in Quebec. On July 31, 2009, the respondent sold 51 Fifth Avenue for $525,000 and paid the balance outstanding on the mortgage of $299,192.85.

[97] On August 28, 2003, the respondent purchased 25 Greatwood, Ottawa, Ontario for $320,000 with a mortgage of $200,000. On September 30, 2008, the respondent remortgaged the said property for $273,000. On June 25, 2010, the respondent sold the property for $446,000.

[98] On November 1, 2006, the respondent purchased a cottage property in Quebec for $160,000.

[99] On November 3, 2006, the applicant purchased 102-179 George Street, Ottawa, Ontario for $233,940 without a mortgage. This property was appraised as of the date of separation to be valued at $342,000.

[100] On November 10, 2006, the respondent purchased 1108-179 George Street, Ottawa, Ontario for $444,300 with a mortgage of $249,300.

[101] On April 18, 2010, the respondent purchased 324 Laurier Avenue West, unit 2214, Ottawa, Ontario for $258,112.56 with a mortgage of $202,257.

[102] On December 20, 2009, the applicant and the respondent purchased 45 Farnham, Ottawa Ontario for $426,000 with the mortgage of $278,850. This property was subsequently sold and each party received half of the net proceeds of sale being $212,500 less half of the balance outstanding on the mortgage of $132,247.26 less half of the TD line of credit of $37,500.

[103] The burden is on the respondent to provide an evidentiary record to allow the court to conclude that the respondent’s ability to maintain his lifestyle and pay for all of the family’s expenses was based on receiving the proceeds of sale of various real estate holdings. While the respondent has provided evidence as to the purchase price, original balance owing on the mortgage, the sale price, the payout of the mortgage, I find that the respondent has not discharged his burden of proof to provide financial corroborative evidence indicating the use of the mortgage funds to pay the expenses that exceed his declared income.

[104] In 2006, the respondent’s declared income was $65,000 from all sources. On November 1, 2006 the respondent purchased the cottage in Quebec for $160,000. On November 3, 2006, the applicant purchased 102-179 George Street, Ottawa, Ontario for $233,940 without a mortgage. On November 10, 2006, the respondent purchased 1108-179 George Street, Ottawa, Ontario with a deposit of approximately $200,000. In the course of approximately 10 days, the respondent purchased three pieces of real estate with deposits of approximately $593,940. Even assuming that the respondent used the mortgage advances to purchase the Quebec property and 102-179 George Street, Ottawa, Ontario and the deposit for 1108-179 George Street, Ottawa, Ontario, the respondent has not provided sufficient evidence as to how he was then able to maintain his lifestyle if all of the funds advanced through the mortgages were used to purchase real estate.

[105] In 2011, the respondent’s income tax return indicated he had an annual income of $54,590.03. However, what is not included is the $70,000 that the respondent admitted he withdrew from Xpresso Café in that year.

[106] In 2006, the respondent’s total income of $65,000 based on $50,000 in employment income, just over $4,000 in interest income and taxable capital gains of $11,000. However, the 2006 income tax return of the respondent does not record any rental income for the second and third floor of his property at Fifth Avenue, Ottawa, Ontario or at 25 Greatwood, Ottawa, Ontario.

[107] Throughout the marriage, the parties had expensive motor vehicles, vacationed to the Bahamas and lived in two residences that were fully furnished. At this time, the applicant is renting an apartment, has no real property and few assets.

[108] On the other hand, the respondent drives a Mercedes motor vehicle, has a cottage in Québec and has travelled. Further, the respondent’s business card indicates that he is the owner of Café Shafali and Shafali Bazaar.

[109] The respondent’s personal bank accounts at Scotiabank show substantial sums of money going and in and out on a monthly basis as set out in Exhibit 85. The applicant has been only able to obtain bits and pieces of evidence from the respondent. In that Scotiabank account for 24 days in August 2012 there were deposits of $55,500. The bank statements from the Scotiabank for August, September, October, December 2012 and January 2013 indicate large sums of money being deposited and transferred in an out of an account. All of these accounts are personal accounts of the respondent.

[110] From August 15, 2013 to September 2015, the respondent paid his own living expenses, as well as paid for the applicant approximately $4,000 per month, provided her with a Visa card and paid the monthly payments at an estimated cost of $1,000 per month, paid the mortgage payments on the matrimonial home resided in by the applicant at an estimated cost of $1,000 per month, paid the house insurance, paid the applicant cell phone lease and gave her cash.

[111] The only financial statements filed by the respondent in this proceeding are dated April 2017 and November 2017. In the respondent’s financial statements, he indicates that his income equals almost the same amount as is expenses and that he has no monthly deficit.

[112] In cross-examination, the respondent admitted that based on the 2016 financial statement for 1278541 Ontario Inc., he owed the company $93,000 in loans and shareholder withdrawals.

[113] In the respondent’s financial statement dated November 7, 2017, this statement shows no expenses for deductions from income, no debt payments, no indication of the monthly payments for spousal and child support. There is nothing indicated on the respondent’s financial statements for savings, vacations even though there is evidence that he has travelled to Morocco or child/spousal support.

[114] I accept the evidence of the applicant as to the following facts:

a) at the beginning of the separation in 2013, the respondent gave the applicant between $1,200 and $1,600 a month in cash as well as paid for all the expenses for the matrimonial home at Farnham except municipal taxes as well as for her car expense;

b) during the marriage, the respondent would bring home cash which she had no idea what he did with it; and

c) on one occasion the respondent deposited $10,000 in cash in her name in a HSBC Bank account.

[115] I accept the submission from the applicant that the respondent has many of his expenses paid by his various corporations. The corporations pay his credit card statements and he removes cash to live on.

[116] The respondent has not provided full financial disclosure and has attempted to avoid providing the court with all the information required to be able to make a decision based on an evidentiary record. The respondent has done so at his own risk.

[117] I have concluded that the respondent’s income tax returns are not reliable and are not an accurate picture of his true financial situation.

[118] I find that in addition to the declared income on the respondent’s income tax return, he was able to pay approximate $4,000 per month from the August 2013 until September 2015. It is not credible that the respondent was able to pay his personal living expenses and these expenses based on his declared income. I find that he was able to do so by income that is not declared on his income tax returns.

[119] As a result of the respondent’s complete disregard for his obligation to make financial disclosure and his attempt to play “hide and seek “ with his true income and assets, I have no difficulty in imputing an income to the respondent.

[120] Due to the default of the respondent to provide full disclosure, the applicant’s evidence is a patchwork of bits and pieces of evidence that the applicant has been able to obtain to provide some basis for the imputation of income. The respondent has not assisted the applicant in this endeavor and I find that he has intentionally attempted to avoid providing a true picture of his financial information.

[121] I have reviewed the respondent’s 2013, 2014 and 2015 federal income tax returns and have averaged the declared different sources of income for that three year period as follows:

a) the respondent declares annual employment income of $12,000;

b) the respondent declares annual rental income of approximately $35,761; and

c) the respondent declares capital gain of $97.

[122] I have also added the $4,000 per month (extrapolated to $48,000 per year) representing the amounts paid by the respondent from separation until September 2015. Based on the DivorceMate software, attached, the respondent’s annual income including the automatic gross up for non-taxable income of $48,000, results in an annual income of $123,660.

[123] In addition, I find that the evidence supports a finding that other expenses are paid for by the respondent’s various corporations such as his travel expenses and car expenses.

[124] Considering all the evidence that is available, I find that it is fair and reasonable to impute an income to the respondent in the amount of $150,000 as of October 2015.

[125] The applicant requests child support as of October 1, 2015. The child has resided in the full-time care of the applicant since that date. I order that commencing October 1, 2015 and on the first day of each month thereafter, the respondent shall pay to the applicant the sum of $1,299 per month as table child support based on an imputed income of $150,000.

Section 7 Expenses

[126] The applicant submits that certain expenses should qualify as Section 7 expenses, being:

a) a proposed dyslexia treatment at a cost of $1,200 for a one week camp recommended by the special needs teacher at Manor Park School;

b) two weeks of goalie camp paid by the applicant in two payments of $450 in 2016 and 2017 for a total cost of $900 recommended by a chiropractor for brain and body connection;

c) a proposed music camp for bagpipes at a cost of $650 recommended by Columbia University;

d) a proposed visual therapy at an annual cost of $3,900 recommended by Dr. Jefferies, the child’s optometrist to correct the child’s visual perceptions;

e) a proposed visual testing and therapy called Opticalm with annual cost of $2,500;

f) a proposed one week brain balance camp in Boston Massachusetts at a cost of $2,000 recommended by the child’s chiropractor for specific activities to balance the left/right brain functions;

g) lacrosse league at an annual cost of $350;

h) a proposal that the child attend Ninjutsu with no annual cost;

i) the cost paid by the applicant in the amount of $160 to participate in rugby, being 2014 and 2015;

j) the cost of ski lessons paid by the applicant in the amount of approximate $1,000 before December 2017;

k) a proposal that the child participate in bike riding lessons at a cost of $160 recommended by the optometrists;

l) occupational therapy at a cost of $110 per hour without any information as to frequency;

m) homeopathic remedies incurred by the applicant in 2016 in the amount of $100;

n) Cellfield Reading Program at an annual cost of $2,400 recommended by the chiropractor;

o) a proposal that the child have a French tutor for four weeks in the summer with an annual cost of $600 recommended by the child’s previous school;

p) counselling with an annual cost of $632;

q) vitamins at an annual cost of $35; and

r) private school with an annual cost of between $14,000 and $15,000 at either Heritage Academy or MindWare Academy.

Legislation framework

[127] Section 7 of the Federal Child Support Guidelines identifies special or extraordinary expenses as follows:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interest in the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family spending pattern prior to separation:

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education for any other educational programs that meet the child’s particular needs;

e) expenses for postsecondary education; and

f) extraordinary expenses for extracurricular activities.

[128] Section 7(1.1) provides that for the purposes of paragraphs(1)(d) and (f), the term “extraordinary expenses” means:

a) expenses that exceed those that the spouse requesting an amount for extraordinary expenses can reasonably cover, taking into account that spouse’s income in the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount of the court has otherwise determined is appropriate; or

b) where paragraph (a) is not applicable, expenses that the court considers or extraordinary taking into account:

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the spouse is determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate;

(ii) the nature and number of educational programs and extracurricular activities;

(iii) any special needs and talents of the child or children;

(iv) the overall cost of the program and activities; and

(v) any other similar factor the court considers relevant.

[129] Once I determine whether or not these expenses are necessary, reasonable and consistent with the family spending pattern prior to separation, the expenses to be shared by the spouses in proportion to the respective incomes after deducting from the expense and the contribution, if any, from the child pursuant to section 7(2) of the Guidelines.

[130] Since the parties separated in August 2013, all of the expenses sought to be determined as section 7 expenses were not incurred during the marriage. At the time of separation the child was five years of age and today the child is 12. Things have changed since separation and I do not consider the fact that these expenses were not incurred prior to separation to be determinative.

[131] The real question is whether these expenses are necessary and reasonable considering the best interests of the child. The expenses claimed by the applicant fall into various categories such as activities, educational expenses and various types of therapies.

Analysis

[132] With respect to the activity expenses being goalie camp, music camp, lacrosse, rugby and jui jitsu, I do not find that these expenses are extraordinary expenses for extracurricular activities. Even if I did, while the cost of these expenses is reasonable, I do not find they meet the test of being necessary for the child’s best interests and they do not qualify as “extraordinary extracurricular activities.”

[133] With respect to the child attending various therapies such as visible therapy, Opticalm, brain balance camp, occupational therapy, Cellfield Reading Program and counselling, as the child has not received any medical diagnosis regarding his “learning disability”, I do not find that there is sufficient evidence upon which I can decide whether or not these expenses are necessary. While I appreciate that some of these expenses were recommended by various individuals, such as a special needs teacher and a chiropractor, without the child being diagnosed with a specific medical condition that would benefit from these various therapies, I do not find that these expenses are necessary at this time.

[134] The last group of expenses deals with a French tutor and a private school fee. Regarding the French tutor request, I do not have sufficient evidence to conclude that this is necessary for the child’s best interest.

[135] Regarding the private school expense, the parents have a disagreement as to whether or not the child has a learning disability. The applicant alleges that the respondent agreed that the child will attend a private school. The respondent testified that he is ready to do anything for his son regarding attending private school. However, later in his testimony, he indicated he was not really sure he was prepared to contribute to a private school request and indicated that from what he has seen and heard, none of the private schools in Canada are better than the public schools. Further, in cross-examination, he indicated that he did not agree with private schools.

[136] There was evidence during the trial that when the child attended the Queen Elizabeth Public School, he was able to progress in that environment. I have no evidence as to what the private schools could provide that would be different from the public schools. I received no evidence as to what the private school could do with the child’s individual educational plan. In the circumstances where I do not have sufficient evidence to conclude that it is in the child’s best interest to attend a private school, I deny such request.

Cost-of-Living Increase, Payment Provisions and the Family Responsibility Office

[137] The applicant seeks an order that the child support and section 7 expenses be indexed to the cost of living starting January 1, 2019 and that both section 7 expenses and child support payments be made through the Family Responsibility Office.

[138] The Guidelines did not provide for an annual cost-of-living increase on table child support or section 7 expenses. Support is payable in accordance with the tables. I deny the request by the applicant.

[139] Regarding the payment of section 7 expenses on a monthly basis, I have not found any requested section 7 expenses to be shared by the parties at this time except the psycho-educational assessment.

[140] As with all orders for support, the child and spousal support provisions of this judgment are to be enforced by the Family Responsibility Office.

Equalization of the Net Family Property

[141] The parties have agreed on the value of certain assets and liabilities but disagree on other items. It is the obligation of a party to provide evidence to support the value of any asset or liability to allow the court to determine, on a balance of probabilities, the value of any such asset or liability. In this case, both parties have made certain submissions regarding the values of assets and liabilities with little or no corroborative evidence. It is not the court’s role to guess as to the value of an asset or liability. In making a decision on the value of an asset or liability, the court must have some evidence to support the determination as to the values of assets and liabilities.

[142] I am to make my findings based on the best evidence available.

[143] The disputed assets and liabilities are as follows:

324 Laurier Avenue, Ottawa, Ontario

[144] With the consent of the applicant, a retrospective appraisal of the real property at 324 Laurier Avenue West, Ottawa, Ontario dated January 5, 2018 was admitted as evidence. The appraisal report concludes that the fair market value of this property as of August 31, 2013 was $360,000.

[145] The applicant submits that the value of the property is $400,000 based on a handwritten note made by the respondent using the words “market value 400,000” on a mortgage statement dated November 26, 2013. The respondent denied that the value was $400,000 and relied on the expert report that the value was $360,000.

[146] I find that based on the best evidence available being the appraisal dated January 5, 2018, I find that the value of this property to be worth $360,000 on the date of separation.

Household goods

[147] When the parties vacated their residence to go to the Bahamas, the furniture that was in the matrimonial home was partially given to the respondent’s family and partially stored at the respondent’s cottage in Quebec. The applicant alleges that the respondent retained $20,000 of household goods. The respondent submits that the applicant retained items regarding household furniture, that the applicant did not provide a list of items retained by the respondent and did not attribute any values to those items and that her valuation was based on Kijiji searches.

[148] In cross-examination, the applicant stated that she based the value of the contents on estimates of replacing the goods that existed at the date of separation. No list of the alleged contents and alleged value was tendered as evidence.

[149] The proper value as of the date of separation is the fair market value of the household contents. I do not accept the value of $20,000 as submitted by the applicant because it is based on the replacement value and I do not have sufficient evidence to be able to determine the value of the contents on the date of separation and I attribute no value to the household contents.

Mercedes SLK

[150] The parties agree the value to be $25,000 as submitted by the respondent in his submissions and not denied by the applicant in her reply submissions.

Art

[151] The applicant testified that the value was $10,000 of art, artefacts and paintings based on her estimate. The respondent testified that the value of the paintings was $3,000. In the respondent’s submissions, he attached a net family property comparison worksheet where he alleged that the parties had agreed that the value of the art was $3,000. This allegation was not denied in the reply submissions of the applicant and I so find that the value of the art to be worth $3,000 on the date of separation.

Nissan Cube car

[152] The respondent alleges that the value of the car is $2,000 while the applicant did not testify as to the value but in her net family property comparison document filed with her submissions she alleged that the car was worth $5,000. In her reply submissions, the applicant states that the value used is a compromise from the respondent’s value of $2,000 and that her claim is that it is now worth $4,000. However, there was no testimony as to this statement.

[153] In his testimony, the respondent indicated that he purchased the vehicle in the Bahamas and he currently cannot sell it and that the value on the date of separation was $2,000.

[154] The only evidence I have as to value is the testimony of the respondent. I find that the value of the car on the date of separation was $2,000.

Bank accounts and savings

[155] The applicant submits that on the date of separation the respondent owned a Registered Retirement Savings Plan (“RRSP”) with Empire life in the amount of $10,000. There is no evidence that as of the date of separation, the respondent had such a holding. Consequently, I rejected the submission of the applicant.

[156] With respect to cash, the applicant submits that on the date of separation she had retained $10,000 withdrawn from the line of credit. The respondent submits that the applicant withdrew from the line of credit for her own use the sum of $26,623.21 and that should be the figure that existed on the date of separation. I find that the evidence discloses that the applicant used the money withdrawn from the line of credit to pay off credit card bills and other debts that otherwise would been shown in her financial statement and I conclude that on the date of separation, the applicant had $10,000 in cash.

Shafali Bank Street

[157] This business was opened by the respondent after marriage when the respondent borrowed $140,500 from his brother and with his own money made an initial investment of $225,000. There is no evidence when the restaurant was purchased.

[158] Despite a court order requiring that the respondent to value his assets including his restaurants, he did not do so. The respondent alleges that the value of the business was zero at the date of separation without any corroborative evidence. However, he submits that he still owes his brother $140,500 at the date of separation.

[159] The applicant submits that if the respondent seeks to have identified the loan of $140,500 to his brother as a valid date on the date of separation coupled with the fact that the applicant did not provide a business valuation of the asset on the date of separation, than it is only fair and reasonable that the value of $225,000 be the value of the asset on the date of separation.

[160] The respondent argues that the value of $50,000 is fair and reasonable because not long after the separation, the business closed and the respondent walked away. He further argues that the debt to his brother of $140,500 is a valid debt. The respondent provided no evidence as to when the business closed, what the assets and liabilities of the business were at the date of separation and what happened to the business other than he submits that he still owes his brother the debt.

[161] As the respondent is the owner of this business, he has an obligation to provide evidence to substantiate the value of the asset and any liabilities on the date of separation. He has failed to do so.

[162] I agree with the applicant that the respondent cannot have it both ways. He cannot indicate that the value of the asset is worth $50,000 when he seeks to have the value of the debt at $140,500. I accept the evidence of the applicant that the ledger sheets filed as Exhibit 73 for October and November 2012 and April 2013 show substantial monthly receipts between credit cards and cash for the business in the period before separation.

[163] In determining the value of the restaurant I must have an evidentiary basis. The only evidence I have is that the respondent paid $225,000 to purchase the restaurant which was financed in part by a loan from his brother in the amount of $140,500.

[164] I find it is fair and reasonable to conclude that on the date of separation the amount the respondent paid for the business is the proper methodology when faced with the complete disregard by the respondent’s obligation to provide evidence as to the value of the property on the date of separation.

[165] I find that at the date of separation the property was worth $225,000 with a corresponding debt of $140,500.

Shafali Byward

[166] The respondent submits that the restaurant at the date of marriage and date of separation was valued at $50,000. Currently, the respondent submits that the restaurant has no value because it is principally a takeout operation and subject to a lease that may or may not be renewed. The applicant in submissions does not attribute any value to the restaurant at the date of marriage but submits that at the date of separation the restaurant was valued at $100,000.

[167] Based on my findings regarding the respondent’s credibility coupled with the breach by the respondent of failing to provide the valuations, I reject the respondent’s submission. I draw an adverse inference against the respondent for failing to provide such disclosure.

[168] I find that on the date of the marriage, I cannot attribute any value to the respondent’s restaurant.

[169] On the date of separation, the applicant submits that in the one financial statement filed by the respondent it indicated that this restaurant had annual sales of close to $250,000 and given that income-producing assets are typically sold as a multiple of earnings, the figure of $100,000 seems understated. There was no expert evidence tendered by the applicant in support of this submission.

[170] The applicant submits that the respondent seems to have accepted the amount of $100,000 and that the applicant simply adopted the value of $100,000. The respondent denies this allegation.

[171] The end result is that neither party provided corroborative evidence as to the value of the restaurant.

[172] The respondent submits the value was $50,000 and the applicant submits the value is $100,000. Both parties agree that the restaurant has a value on the date of separation. I do not have sufficient evidence to conclude that the value of the restaurant was worth $100,000 on the date of separation.

[173] I find that it is fair and reasonable to determine that the value of the restaurant on the date of separation was $75,000, being the midpoint between the two values.

Xpresso Café

[174] The applicant admits that the café did not exist on the date of separation. The applicant submits that the financial statement for 1278541 Ontario Inc, indicated that on March 31, 2015 there was a loan receivable from the respondent of $52,253 and due from the shareholder the sum of $22,721 for a total of approximately $75,000. Upon that basis, the applicant submits that coupled with the respondent’s admission that he withdrew $70,000 from the numbered company, even though the café was sold, the withdrawal should appear as a debt owed by the respondent as the sole shareholder of the corporation and as such would be an asset of the corporation.

[175] The date of separation is August 15, 2013. The court does not have a financial statement for 1278541 Ontario Inc. as of March 2013. However, the financial statements filed for the year 2014 indicate that there was a loan receivable of $52,253 and there was no amount due by the shareholder.

[176] I reject the submission of the applicant that there was an amount owed to the company as of August 15, 2013 in the amount of $75,000 because there is no evidence that on the date of separation there was any amount due from of the shareholder. I accept that there was a loan receivable of $52,253. I find that that is an amount owed to the company and is an asset belonging to the company.

[177] I find on a balance of probabilities that at the date of separation, the value of 1278541 Ontario Inc. was the amount of the loan receivable of $52,253. This figure should be indicated as an asset of the respondent on the date of separation.

[178] However, the flip side of such an analysis is that if there is an amount owed by the respondent to his corporation, the respondent in his personal capacity has a loan owed to his corporation and consequently the amount of $52,253 should be indicated as a debt owed by him on the date of separation.

Respondent’s loan from his brother, Ashraf Uddin, of $140,500

[179] Based on my finding that the value of the Bank Street restaurant was $225,000, I accept that the respondent owed his brother $140,500.

Respondent’s chequing account at the Bank of Montreal, account number 38438007614

[180] I find that at the date of separation on August 15, 2013, the value was $3,412.01 and not the amount of $1,097.43 which was based on the value as of the end of August.

Respondent’s notional disposition costs of $3,000

[181] The respondent submits that he would owe $3,000 of notional disposition costs regarding the RRSPs owned on the date of separation. The respondent has not provided any report from an accountant or other financial expert to provide the court with an evidentiary basis to allow the court to conclude firstly that there would be income tax owed and secondly the amount of that income tax. As a result of the failure of the respondent to provide such documentation, I will not attribute any notional disposition costs of $3,000.

Assets owned by the respondent in Bangladesh

[182] The applicant believes that the respondent has assets in Bangladesh. The only evidence filed is a bank statement dated February 24, 2008 in the joint names of the respondent’s mother. Since there is no evidence as to assets owned by the respondent in Bangladesh on the date of separation, I will not attribute any value.

Assets owned by the respondent on the date of marriage

25 Greatwood Crescent, Ottawa, Ontario

[183] The applicant submits that the value of the property was $374,526 while the respondent submits the value was $370,000 on the date of marriage. Neither party provided any expert evidence as to the value of the property on the date of marriage. Neither party relies on appraisals and neither party addresses the difference in the valuations of the real property in their written submissions save and except for their net family property statement.

[184] In the applicant’s comparison of the net family properties at tab 5 of the trial record, she indicates that the value of Greatwood on the date of marriage was $320,000 and that the property was purchased by the respondents in 2003 for $320,000.

[185] In the applicant’s submissions she does not specifically address how she now indicates that the property’s value is $374,000 and in her net family property comparison filed with her submissions she repeats the value of $374,000.

[186] The respondent’s position is the property was worth $370,000. The respondent’s financial statements filed in this proceeding, being April 8, 2017 and November 7, 2017, both indicate that the value of the real property on the date of marriage was $370,000.

[187] With respect to the mortgage owed on the date of marriage, both parties’ net family property statements indicate that the value is $190,549 owed by the respondent.

[188] With respect to the value of the property, I am required to determine the value of the asset based on the best evidence available. The parties are asking the court to guess as to what the value of the property is. In the circumstances, I find it is fair and reasonable to take the midpoint between that the two amounts and determine that the value of the property on the date of marriage was $372,000.

Empire Financial Dividend Fund

[189] At the date of the marriage, the respondent submits that he had an investment with Empire Financial Dividend Fund in the amount of $370,601.75 based on a statement.

[190] The applicant disputes the value because of the failure of the respondent to explain the source of the funds. The applicant submits that in questioning the respondent he indicated the funds represented savings from income earned over the years. He undertook to provide income tax returns to justify the level of savings but never did. During the trial, he acknowledged the undertaking and admitted he had never produced a tax return showing an income greater than $50,000. During cross-examination, the respondent indicated that the money represented savings from the sale of previous homes. The applicant submits that the respondent is a sophisticated entrepreneur who wanted a marriage contract and who prior to his first marriage divested himself of properties. The applicant submits that it is entirely possible that the respondent pooled together funds from various sources to have a large asset on the date of marriage.

[191] The applicant submits that there should be no value attributed to the Empire Financial Dividend Fund because the respondent cannot prove the source of the funds that existed on the date of marriage.

[192] Whether the respondent received the funds from an inheritance, gifts, savings, the profit on the sale of property, the end result on the date of marriage, the respondent had a significant amount invested in his name with Empire Financial Dividend Fund. There is no evidence that the respondent pooled money to put into the fund to have a large asset on the date of marriage.

[193] The submissions of the applicant are conjecture. I cannot conclude that the respondent pooled together different sources of money to provide him with a large asset on the date of marriage. Consequently, I find that on the date of marriage the respondent had an asset with Empire Financial Dividend Fund in the amount of $370,601.75

[194] Based on my findings, I calculate the net family property as follows:

APPLICANT RESPONDENT

ASSETS Matrimonial Home $212,500 $212,500 179 George Street, unit 102 179 George Street, unit 1108 $342,000 $360,000 324 Laurier Ave., unit 2204 $360,000 45-47 Baie Ladouceur, QC $175,000 Household goods $0 $0 Cars, boats, vehicles: Mercedes SLK $25,000 Nissan Cube $2,000 Mercedes 2007 C280 $15,000 Jewellery, art $3,000 Scotiabank chequing $500 TD Canada trust checquing $2,000 FundeX $22,860.82 Chequing – BMO **7614 $3,412.01 Savings USD **2471 $509.60 Chequing – BMO **8672 $5,699.57 Savings – BMO **2125 $272.84 Savings – HSBC $55,833.87 Savings – HSBC $79.28 Savings – HSBC $36.95 RRSP – FundEx $12,285.95 RRSP – Potvin Investment $4,926.27 Cash – Unknown $25,000 Cash $10,000 Xpresso Café $52,253 Shafali Bazaar – Bank Street $225,000 Shafali Bazaar – Byward Market $75,000 Total Assets $247,860.82 $1,954,809.34

DEBTS TD – Mortgage $132,247.26 $132,247.26 TD – Line of Credit $37,500 $37,500 Student Loan $642 Investment Loan – B2B $28,942.40 Mortgage – 324 Laurier Ave, Unit 2214 $192,212.40 Mortgage – 179 George St., Unit 1108 $192,238.34 Personal Loan – Ashraf Uddin $140,500 Debt to Xpresso Café $52,253 Total Debts $199,331.66 $746,951

Net Value of Property Owned . . on the Date of Marriage Assets Date of Marriage 51 Fifth Ave. $400,000 25 Greatwood $372,000 Empire Financial Dividend $370,601.76 Total $1,142,601.76

Debts on Date of Marriage Mortgage CIBC 51 Fifth Ave. $195,501 25 Greatwood – TD Mortgage $190,549 Student Loan $-13,871.23 Total $-13,871.23 $386,050

Summary Assets $247,860.82 $1,954,809.34 Debts $185,460.43 $1,503,502.76 Net family property $62,400.39 $451,306.58 Difference $388,906.19 Equalization Payment Owing $194,453.09

[195] I order that the respondent pay to the applicant, the equalization payment of $194,453.09.

Spousal Support

Position of the applicant

[196] The applicant seeks an order of periodic spousal support in the amount of $2,304 per month, retroactive to October 1, 2015, and payable to December 2024. The applicant submits that the applicant’s income be set at $75,000, the respondent’s imputed income of $200,000, table child support of $1,659 per month and the midrange of the Spousal Support Advisory Guidelines in the amount of $2,304 per month.

[197] In addition, the applicant seeks a lump sum compensatory support award to address the loss of earnings caused by years out of the workforce. The applicant makes two submissions. If periodic spousal support is awarded, the applicant seeks a lump sum payment of $66,123 as of November 1, 2016. In the alternative, if the court does not grant ongoing monthly spousal support, the applicant seeks a lump sum payment of $164,473.

Position of the respondent

[198] The respondent’s position is that there should be no spousal support because the applicant earns more than the respondent and that any claim for lump sum support payments should only be considered in the event the court determines that the respondent’s income is more than the applicant which if the court so finds, the periodic support award should be at the high end of the Spousal Support Advisory Guidelines.

Entitlement for Periodic Spousal Support

Legal and jurisprudential framework

[199] Subsection 15.2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides that “[a] court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sums and periodic sums, as the court thinks reasonable for the support of the other spouse”.

[200] Subsection 15.2(2) states that, where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of an application under subsection (1).

[201] Section 15.2(4) states that a court, in making an order under subsection (1) or an interim order under subsection (2), shall take into consideration the condition, means, needs, and other circumstances of each spouse and, more specifically:

a) the length of time the spouses cohabited;

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

c) any order, agreement or arrangement relating to support of either spouse.

[202] Section 15.2(6) states that an order under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

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

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

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.

[203] In order to achieve a fair and equitable distribution of resources, all four of the objectives of section 15.2(6) should be examined: see Moge v. Moge, 1992 SCC 25, [1992] 3 S.C.R. 813, at p. 866.

Analysis

[204] I find that the applicant is entitled to periodic spousal support both on a compensatory and non-compensatory basis.

[205] In making my finding that the applicant is entitled to compensatory spousal support, I have taken a consideration the following factors:

a) the applicant was born on February 7, 1974. She graduated from the University of Ottawa in April 1997 with a Bachelor of Arts in language and literature. She obtained a Bachelor of Education in April 1998 from the University of Ottawa. She obtained additional teaching qualification for French as a second language, completing her education in the year 2000. From September 2001 to May 2003, she pursued a Master’s of Educational Psychology – Computer Applications at McGill University;

b) the applicant has been involved in various aspects of IT training at McGill University, the University of Ottawa, the Ottawa Hospital and the International Development Research Council of the Government of Canada;

c) at the time of the marriage, the applicant left her job in the administration department at McGill University and took an equivalent job at the University of Ottawa and moved in with the respondent in Ottawa;

d) the child was born on March 17, 2006;

e) the applicant did not return to work until September 2010 as a supply teacher. She remained in that position until March 2011;

f) from 2011 to 2013, she assisted the respondent in his pursuit of opening a restaurant in the Bahamas. She provided logistical support and helped draft various documents submitted as part of the process of opening the restaurant in the Bahamas;

g) during this period of time, the applicant worked for the months of May and June 2012 on the occasional contract and two days in the Bahamas in August 2012;

h) the applicant started working part time in November 2013 until June 2014 with the Ottawa Catholic School Board;

i) from October 2014 to November 2014, the applicant worked as an occasional contract teacher for the Ottawa School Board;

j) in November 2014, the applicant became employed as a half-time teacher with the Ottawa Catholic School Board;

k) in September 2015, the applicant became a full-time teacher at the Ottawa Catholic School Board;

l) in 2017, the applicant went on disability and received benefits; and

m) currently, the applicant is employed as a full time teacher with the Ottawa Catholic School Board with an annual income of $74,520.

[206] I accept that the decision not to return to work after the birth of the child as well as the pursuit of the respondent’s goal of opening a restaurant in the Bahamas was a joint decision of the parties. However, I find that as a result of this decision, the applicant has sustained an economic loss that entitles her to compensatory spousal support. I find that during the marriage, the respondent was the primary source of the financial support of the family.

[207] On the issue of non-compensatory spousal support, based on my findings as to the parties incomes, and after reviewing the financial statement of the applicant, I find that the applicant has a need for spousal support as she cannot maintain the same standard of living to which the parties enjoyed throughout the marriage.

[208] The applicant seeks spousal support since September 2015. The applicant has provided DivorceMate calculations based on the respondent’s income of either $150,000 or $200,000 per year. The calculations provide three ranges of spousal support being low, mid and high. The child support is different depending on the respondent’s income while the applicant’s income is $75,000 in both calculations.

[209] The respondent has not provided any DivorceMate calculations and submits that the applicant earns more than the respondent.

Periodic Spousal Support

Year 2015 and 2016

[210] I find that the applicant should be entitled to receive spousal support at the high range of the Spousal Support Advisory Guidelines based on the following factors:

a) the applicant has a strong compensatory and non-compensatory claim for spousal support;

b) the duration of spousal support will be time-limited;

c) the applicant has sustained an economic loss that requires to be compensated in receiving periodic support; and

d) in the respondent’s submissions, the respondent states that if a lump sum amount of spousal support is not awarded, the proper determination is that the applicant should be entitled to receive spousal support at the high range of the Spousal Support Advisory Guidelines.

[211] For the years 2015 and 2016, based on the respondent’s imputed income of $150,000 and the applicant’s income of $75,000 and based on my findings that commencing October 1, 2015 the respondent shall pay to the applicant table child support of $1,299 per month, the Spousal Support Advisory Guidelines provide that the low range of spousal support would be $311 per month, the midrange would be $874 per month and the high range would be $1,451 per month. However, the amount of spousal support for the years 2015 and 2016 will not be taxable in the hands of the applicant. The Spousal Support Advisory Guidelines indicate that the low range net spousal support in the hands of the applicant is $219 per month, $606 per month for the midrange and $984 per month for the high range.

[212] Consequently, I order the respondent to pay to the applicant the sum of $984 per month commencing October 1, 2015 up to and including December 1, 2016.

Year 2017

[213] In the year 2017, based on the respondent’s imputed income of $150,000 and the applicant’s income of $75,000, the Spousal Support Advisory Guidelines provide that the low range of support would be $311 per month, midrange support is $874 per month and high range of support is $1,451 per month.

[214] I order that commencing January 1, 2017 and in the first day of each month thereafter, the respondent shall pay to the applicant spousal support amount of $1,451 per month.

Entitlement to Lump sum spousal support

[215] In Davis v. Crawford, 2011 ONCA 294, the Court of Appeal set out the principles to be considered by a court in ordering lump sum spousal support as follows:

a) whether there is money available to fund a lump sum support order either to take the place of, or to supplement, an award of periodic support;

b) support will be paid from one spouse’s income, the only available source for support payments, and it will be paid to finance the ongoing needs of the other spouse, which will generally be of periodic rather than lump-sum character;

c) the court must take into consideration the amount to be paid to equalize the value of the spouses net family properties;

d) whether there are considerations favouring a lump sum award from this perspective of either spouse;

e) are there considerations such as the general exigencies of life including the possibility that a spouse’s means and needs will change that may outweigh the considerations favouring a lump sum award;

f) section 15.2(1) of the Divorce Act grants broad discretion to the trial judge to make an award of periodic or lump sum spousal support order and make an order comprising both forms of support;

g) whether the payor has the ability to make a lump sum payment without undermining the payor’s future self-sufficiency;

h) lump sum spousal awards are not to be limited to very unusual circumstances as a matter of principle; and

i) the court must provide a clear explanation of both the basis for exercising the discretion to award lump-sum support and the rationale for arriving at a particular figure.

[216] It is not appropriate to award a lump sum based on the present value of a spouse’s loss of future earnings as stated by the Court of Appeal in Elliott v. Elliott, 1993 ONCA 3429, 15 O.R. (3d) 265.

[217] The jurisprudence requires the court to have an evidentiary basis upon which to make a calculation in awarding a lump sum amount of spousal support.

[218] The applicant’s counsel served a Request to Admit dated April 6, 2017 attaching the report from Mr. Martel of GML Actuaries and which requested that the respondent admit that the following facts are true:

a) the applicant interrupted her career development to move to Ottawa;

b) the applicant interrupted her career development to marry the respondent;

c) the applicant interrupted her career development to be the principal caregiver for the child, Ali, on his birth;

d) the applicant suffered the economic consequences of the role that she played in the marriage; and

e) the applicant’s damages in this regard are correctly identified and assessed, and a present value assigned by the actuary Mr. Guy Martel, whose report is attached.

[219] By Response to Request to Admit dated April 25, 2017, the respondent replied and refused to admit the facts but responded as follows:

a) the applicants moved to Ottawa was based on her own decision to move with the consequent effect on her career;

b) the applicant’s decision to marry the respondent would not in the ordinary course interrupt her career development;

c) the applicant’s interruption of her career development as a consequence of Ali’s birth is admitted, the duration of same is in dispute;

d) the applicant’s economic consequences suffered were not attributable to the respondent and arose in the ordinary course of marriage; and

e) the damages suffered are assessed, however, there is an issue as to entitlement.

[220] In his report, Mr. Martel prepared two scenarios. In the first scenario, if the applicant had not stopped working to marry and have a child with the respondent and if the applicant had started working on September 1, 2006, he values the present value of her loss of income was $114,589 and the future value at $49,884 for a total of $164,473.

[221] In his second scenario, if the applicant was able to start teaching on September 1, 2011 when the child was five years old and started school, the present value of the loss was $66,123.

[222] In Sharpe v Sharpe, 1997 ONSC 12236, 1997 O.J. No. 336, the court provided a useful criteria to be considered on the issue of lump sum which I have applied to this case as follows:

a) the respondent owes the applicant an equalization payment of $194,453.09;

b) that effective September 1, 2015, the applicant is entitled to periodic spousal support;

c) there is no evidence that there has been difficulties in forcing periodic payments;

d) there is no evidence that the respondent’s livelihood is or will become precarious;

e) the respondent has sufficient assets from which a lump sum can be paid;

f) there is no evidence that the respondent is about to leave the jurisdiction;

g) there is no reason to terminate the personal contact between the parties because since separation they have been able to interact on some level;

h) there is a disparity in the financial positions of the parties;

i) the applicant is not retraining or taking and upgrading course;

j) there is no need to provide a nest egg for the contingencies of life of the applicant;

k) the report of Mr. Martel did not calculate the loss of the applicant’s pension benefits;

l) there is no evidence that the applicant requires an immediate payment for immediate needs;

m) there is evidence to support a lump sum payment to provide compensatory support for lost career opportunities of the applicant;

n) the marriage is not of short duration;

o) the applicant has not established a new relationship;

p) the claim is related to roles assumed during the marriage; and

q) there is no evidence that the applicant requires a lump sum payment to discharge debt.

[223] I find that in the circumstances it is more appropriate to consider the loss of the applicant’s career as a teacher as a major factor underlying a finding that she is entitled to compensatory spousal support. I do not find that a lump sum payment should be made in addition to the periodic spousal support.

Duration of spousal support

[224] On the issue of the termination date of the spousal support, according to the DivorceMate calculations prepared by counsel for the applicant, the parties’ cohabitated for seven years and at the age of separation, the applicant was 39 years of age. The Spousal Support Advisory Guidelines recommend that the support be of an indefinite duration, subject to variation and possible review with the minimum duration of 3.5 years and a maximum duration of 11 years from the date of separation;

[225] On the issue of duration, the applicant has requested spousal support to the year 2024 which would be 11 years from separation in August 2013.

[226] At the date of separation in 2013, the applicant was 39 years of age and working part-time. She started working part-time with the Ottawa Catholic School Board in October 2013. By November, 2014, the applicant was working half-time as a teacher with the School Board. It was only in September 2015 that the applicant became a full-time employee.

[227] Taking into consideration the economic consequences of the roles assumed by the applicant in this marriage, the loss of career opportunities, the disparity in the parties’ lifestyles and the fact that the applicant was not employed on a full-time basis from 2006 to 2015, a period of nine years, I find that it is fair and reasonable to order the support to terminate 9 years after separation being August 1, 2022.

Arrears of support

[228] I order counsel to calculate the arrears of child and spousal support from October 2015 to July 2018 less any payments received by the respondent since that date to be credited against the balance owing. Counsel are to provide to the court by August 20, 2018, the calculation of the arrears of child and spousal support owing by the respondent. If the parties cannot agree, the parties are to contact the trial coordinator to set up a time so that they may make oral submissions with respect to this issue.

Prejudgment Interest

[229] The applicant seeks an order that the equalization payment bear interest from the date of separation at the rate of 3% calculated and accumulated annually in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[230] The parties separated almost five years ago in August 2013. Most of the assets that existed on the date of separation were owned by the respondent. The only asset that was jointly owned was the matrimonial home that was sold and the proceeds were split equally.

[231] The applicant submits that the respondent has had exclusive use of the family cottage, has had the benefit of rental income from three income properties, has owned and operated various businesses and enjoyed a lavish lifestyle.

[232] The respondent submits in the normal course, interest would accrue on the equalization amount from the commencement of the date of proceedings.

[233] Section 128 of the Courts of Justice Act confirms that the prejudgment interest rate will be either the prescribed rate or “such other rate as to the court seems fit and appropriate.”

[234] In this case, the date of separation was August 15, 2013 and the date of commencement of proceedings was October 29, 2013. The difference between the date of separation and the date of the commencement of proceedings is just over two months. I order that the prejudgment interest commence from the date of the commencement of proceedings.

[235] With respect to the interest rate, the applicant submits that the pre-and post-judgment interest rate ought to be set up at a rate that approximates the increase in value of underlying assets that go to make up the equalization payment based on the decision and Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, [2002] 2 S.C.R. 601.

[236] However, in this case, the respondent has not provided the MPAC statements for the real property and leaves the court with no information as to the increase in the value of such properties. I reject the submission by the applicant that it is a reasonable assumption that property values increased by 3% per annum over the last five years. There is no evidence to support this submission.

[237] I order that the equalization payment owed by the respondent to the applicant shall be subject to prejudgment interest in accordance with the prescribed rate that existed effective October 1, 2013 and post-judgment interest in accordance with the prescribed rate as of the date of this judgment.

Life Insurance

[238] The applicant seeks an order that the respondent designate the applicant as irrevocable beneficiary of the policy of life insurance in the amount of not less than $500,000 for as long as the respondent is obliged to pay either child or spousal support and that he annually provide evidence that the policy is in good standing to the applicant.

[239] The respondent’s position is that once the amount of support has been determined, the quantum of insurance to cover the support can be calculated.

[240] In Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, the Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:

a) the Divorce Act does not have a provision like s. 34(1)(k) of the Family Law Act, which permits a court to order a spouse to obtain insurance to secure payment of support following the payor’s death;

b) despite not having the specific provisions, the court is given broad discretion to impose terms, conditions and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment, to be binding on the payor’s estate; and

c) the factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, are as follows: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.

Analysis

[241] In the respondent’s financial statement sworn April 18, 2017 he discloses that he has a life insurance policy with Desjardins as a term life policy with the respondent as the owner and the applicant as the beneficiary with a face amount of $100,000.

[242] I have considered the following factors in arriving at my decision regarding life insurance:

a) under the Divorce Act, I have jurisdiction to order the respondent to obtain and maintain life insurance to secure his payment of a support obligation;

b) under the Divorce Act, I have jurisdiction to order the support obligation to be binding on the respondent’s estate;

c) I have ordered the respondent to pay to the applicant child support in the amount of $1299 per month and spousal support in the amount of $1,451 per month per month; and

d) the respondent has a life insurance policy with Desjardins in the face amount of $100,000.

[243] The applicant has not provided any evidence to support the request for $500,000 of life insurance. Taking all the factors into consideration, I order the respondent to designate the applicant as the irrevocable beneficiary of his policy of life insurance with Desjardins in the amount of $100,000. Further, I order that the respondent is to provide proof of said designation by August 31, 2018 to the applicant and that he shall annually provide evidence that the policy is in good standing.

[244] In addition, I order that the respondent’s obligation to pay child and/or spousal support shall form the first charge on his estate in addition to the policy of life insurance with Desjardins.

Transfer of 324 Laurier Avenue, Ottawa, Ontario

[245] The applicant requests that the court order that the respondent’s property at 324 Laurier Avenue, Ottawa Ontario be transferred from the respondent to the applicant in partial satisfaction of the respondent’s obligation to pay arrears of support and section 7 expenses, lump sum spousal support and an equalization payment. The applicant submits that this is an alternative means of securing an asset that has increased in value. Further, the applicant submits that making such an order would be the equitable exercise of the court’s authority to secure or pay to satisfy the applicant’s entitlements to lump sum support and/or an equalization payment as an alternative to the prejudgment interest claim.

[246] The respondent submits that there is no evidence that the respondent will not honour any judgment and if payment is not made, the applicant can enforce a court judgment in accordance with the law. I have no evidence that the respondent will not comply with the judgment of this court. The respondent is currently maintaining the payments under the existing temporary orders for support.

[247] Further, I have not granted an order for lump sum payment. In the event that the respondent does not pay his financial obligations imposed by this judgment, the applicant can utilize the various tools available for the enforcement of a judgment. In the circumstances, I decline the applicant’s request.

Restraining Order

[248] The applicant requests a restraining order against the respondent and that he is further restrained from and forbidden to conduct any form of electronic surveillance or intrusion into the applicant’s privacy.

[249] The respondent is opposed to a restraining order being issued for fear that it will be used as a weapon by the applicant and can be used to frustrate access.

[250] Based on the evidence, the last involvement of the police was in 2016. Further, at no point during the five years of litigation did the applicant seek a restraining order on a temporary basis. There have been no criminal charges laid against the respondent for any actions against the applicant. There has been no finding that the respondent engaged in electronic surveillance or intrusion of the applicant’s privacy. Allegations are not proof.

[251] I find that the applicant did try to seek the assistance of the police and that she provided evidence of incidents where the respondent attempted to attend her home uninvited, followed her, or sent numerous phone and text messages. However, examining the evidence in its totality, I do not find that there is sufficient evidence presented during the trial to support a restraining order being issued against the respondent.

Costs

[252] I direct that the parties should attempt to resolve the issue of costs. If they are unable to do so by August 31, 2018, I order that the applicant provide her costs submissions not to exceed three pages plus a detailed bill of cost and any offers to settle by September 7, 2018. The respondent is to provide his costs submissions by September 21, 2018 with said submissions not to exceed three pages plus a detailed bill of costs and any offers to settle.

Mr. Justice Mark Shelston Released: July 24, 2018