COURT FILE NO.: FS-16-247

DATE: 2018-11-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Donna Lee Doris Martin

Mr. Smith, for the Applicant

Applicant

• and -

Rick John Martin

Ms. Currie, for the Respondent

Respondent

HEARD: May 14, 15, 16 and 17, 2018 at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons for Judgment

Introduction

[1] The applicant (“Ms. Martin”) was born on July 9, 1962, and is 56 years of age. The respondent (”Mr. Martin”) was born on April 10, 1960, and is 58 years of age.

[2] Mr. and Ms. Martin were married on March 31, 1984, and separated on April 11, 2016, after 32 years of marriage. The parties are the parents of two adult, independent children.

[3] The issues to be determined in this case are:

1. Spousal support;

2. Equalization of the parties’ net family properties;

3. A divorce; and

4. Costs.

Summary of the Evidence

Agreed Statement of Fact

[4] The parties agree on the following facts:

1. On the date of separation, the parties lived at 1695 Highland Court, Thunder Bay, Ontario. This residence is approximately 2,000 square feet (main floor) with three bedrooms, a fully finished walkout basement and a detached garage of approximately 1,000 square feet;

2. On the date of separation, Mr. Martin held a 50% interest in a seasonal camp at Batwing Lake;

3. Mr. Martin retired on April 18, 2015;

4. Mr. Martin received $36,955.08 from his federal pension in 2016. His pension was adjusted/increased for cost of living in 2017 and 2018;

5. Mr. Martin’s employment income from Elio Martin Service Corporation, a private corporation owned by him, was:

a) $10,000 in 2013;

b) $15,000 in 2014; and

c) $10,000 in 2015.

6. On separation, Ms. Martin had possession of a 2008 Chevrolet Malibu owned by Mr. Martin;

7. CIBC Investor Services Inc. account 571-49086 held 200,000 shares in Family Memorial Inc. on the date of separation. These shares had a market value of $11,000 on the date of separation;

8. Mr. Martin has not made any payments on an alleged loan from his parents in the amount of $60,000;

9. Mr. Martin disclosed a report dated February 24, 1986, regarding the transfer of the shares in Elio Martin Service Corporation to him. The report does not state the transfer was a gift;

10. Mr. Martin owned a home at 220 Southern Avenue, Thunder Bay, Ontario on the date of marriage.

The Applicant’s Case

Donna Martin

[5] Ms. Martin and Mr. Martin met in 1981 and dated for three years prior to marriage. On the date of marriage, they resided together at 220 Southern Avenue in Thunder Bay.

[6] Ms. Martin has only a Grade 11 education. She worked as a receptionist prior to and for a short period of time after marriage. She then obtained a contract position in the accounting department at Confederation College, where she worked for approximately three years prior to becoming pregnant with the parties’ oldest child Derek, born October 21, 1990. She did not return to this employment after Derek’s birth.

[7] Ms. Martin’s evidence was that she was a traditional stay at home mother and exclusively responsible for all the usual responsibilities that went with that position until both children were in school full time. She then worked in a series of seasonal and/or part time jobs in the retail sector until suffering a serious injury in 2007. She attempted to return to work about one year after the injury but was unable to physically or mentally endure continued employment. She has never returned to paid employment. According to Ms. Martin, she remains physically and mentally unable to work. In any event, she testified that she is 56 years old with limited education and skills.

[8] Ms. Martin testified that Mr. Martin had several sources of income during the period they lived together prior to marriage. His primary employment was as a grain inspector with the Canadian Grain Commission in Thunder Bay. According to Ms. Martin, Mr. Martin also worked for Elio Martin Service Corporation (the “company”), a small privately held company then owned by Mr. Martin’s father.

[9] Ms. Martin testified that Mr. Martin did snow ploughing, snow removal and the collection and return of wayward shopping carts for the company. It was Ms. Martin’s evidence that Mr. Martin received cash payments for the collection of the shopping carts and that this money was not put onto the company books or reported to the Canadian Revenue Agency.

[10] Ms. Martin testified that she “did the company’s books”, including the general ledger and deposit books, beginning after Derek’s birth in 1990. She continued to do so until shortly after her 2007 injury. According to Ms. Martin, Mr. Martin routinely “fudged the numbers”, referring to him utilizing the company for his personal benefit.

[11] According to Ms. Martin, Mr. Martin and his friends regularly purchased auto parts on the company’s charge accounts with Mr. Martin being paid cash for the same parts by his friends and then personally retaining cash payments made to the company. Ms. Martin stated that family automobile expenses were routinely charged to and paid for by the company.

[12] Ms. Martin further testified that the company periodically issued cheques to her but that Mr. Martin retained and deposited them for his own benefit. Ms. Martin identified her 2013 T4 from the company and her 2013 Tax Return summary, which both indicated that she received $10,000 from the company in 2013. According to her, she had no knowledge of either until after the start of this litigation.

[13] Ms. Martin also identified her 2014 Tax Return Summary, which disclosed $15,000 in employment income in 2014. Ms. Martin did not work for the company or otherwise in 2014. She was unaware of this income being allocated to her at the time.

[14] Ms. Martin was referred to a document she identified as part of the company chequebook for the period September 2013 – March 2014. She testified that she removed this document from Mr. Martin’s office in the matrimonial home early in 2016. The document is a record of cheques drawn on the company account for this period of time. It includes 27 cheques payable to “D. Martin” in various amounts ranging from $500 to $2100. Ms. Martin testified that she never received any of these cheques or any money from these cheques being cashed.

[15] Ms. Martin next identified her 2015 Tax Return Summary which disclosed $10,000 in employment income and $11,498.96 in “elected split-pension” income. She was unaware of either until after litigation began.

[16] Ms. Martin testified that she did not directly receive any income from the company in 2013, 2014 or 2015. According to Ms. Martin, Mr. Martin and their accountants never explained the company income allocation to her, stating that Mr. Martin “was in charge of the money”.

[17] Ms. Martin provided evidence in relation to various assets and debts remaining in dispute between the parties.

[18] Ms. Martin retained possession of a 2008 Chevrolet Malibu after separation. It is registered in Mr. Martin’s name. Ms. Martin referred to a Temporary Order of Newton J. dated December 22, 2016, paragraph 3 thereof which reads, “With respect to the vehicle in possession of the Applicant, the Respondent consents to make any necessary repairs and maintenance (including winter tires) to make the vehicle roadworthy immediately”.

[19] According to Ms. Martin, in the fall of 2016 she asked Mr. Martin for the winter tires for this vehicle and he refused to give them to her. In December 2016, Ms. Martin took the car into Badanai Motors in Thunder Bay for an “MOT inspection” (safety check) and other miscellaneous repairs. The December 30, 2016, invoice is in the name of Rick Martin Service and is for $1,723.31. Ms. Martin testified that Mr. Martin has paid only one-half of this invoice. She seeks payment of the remaining one-half by Mr. Martin pursuant to the terms of the December 22, 2016, Temporary Order.

[20] Ms. Martin identified her Sears Mastercard statement dated August 18, 2013, testifying that this is the only pre-separation Sears Mastercard statement she has been able to locate. This statement shows a balance owing of $2,917 as of August 18, 2013.

[21] According to Ms. Martin, the balance of her Sears Mastercard debt as of the valuation date was $2,000. In support of her evidence on this point, Ms. Martin identified a February 24, 2017, letter to her from Scotiabank Mastercard, referencing the same account number as the August 18, 2013 statement. This letter acknowledges a $2,000 payment on this account on February 18, 2017, as a “final and complete payment of (the) account number above”.

[22] Ms. Martin also alleges a valuation date debt of $5,000 to Darlene Metzger, a friend of hers. According to Ms. Martin, she borrowed $5,000 from Ms. Metzger in 2010 to pay off various credit card debts she had accumulated, on the understanding that she would pay the interest for the $5,000 on Ms. Metzger’s line of credit. Mr. Martin was not told of this at the time.

[23] In support of her evidence on this point, Ms. Martin identified a series of personal cheques, dated in 2015 and 2016, in various small amounts drawn on a CIBC account in Mr. Martin’s name and payable to Darlene Metzger. Ms. Martin testified that she told Mr. Martin of this and other debts during an attempted reconciliation following an earlier separation and that he authorized her to write cheques to Ms. Metzger on his account and to sign his name on the cheques.

[24] Ms. Martin next testified about 220 Southern Avenue and 1695 Highland Court, both in Thunder Bay, the former owned by Mr. Martin on the date of marriage and the latter being the matrimonial home. The parties have agreed on the valuation date value of the matrimonial home, the date of marriage value of 220 Southern Avenue and the date of marriage mortgage balance on 220 Southern Avenue.

[25] Ms. Martin is alleging that Mr. Martin owed his parents $25,000 on the date of marriage, being funds they lent him for the purchase of 220 Southern Avenue. This is disputed by Mr. Martin. Mr. Martin is alleging that he owed his parents $60,000 on the valuation date, being funds they lent him in 1991 for the purchase of the vacant lot at 1695 Highland Court. This is disputed by Ms. Martin.

[26] Ms. Martin testified that she and Mr. Martin purchased 220 Southern Avenue in the fall of 1983, prior to marriage. She further testified that she and Mr. Martin borrowed $25,000 from his parents for this purchase and that it was repaid to his parents immediately after their wedding from money the two of them received as wedding gifts. Ms. Martin testified that Mr. Martin did not have $25,000 cash saved at the time of purchase to contribute to the purchase price, as he alleges.

[27] Ms. Martin acknowledged that she was not present when the $25,000 was advanced, but stated that it had been discussed between her and Mr. Martin and that they agreed that it had to be paid back.

[28] Ms. Martin further testified that she and Mr. Martin sold 220 Southern Avenue for $107,000 in “1990 or 1991” and purchased the vacant lot at 1695 Highland Court with the net proceeds of that sale, paying $49,000 for the lot. Ms. Martin identified the Service Ontario PIN sheet for 1695 Highland Court, which indicates that this property was transferred to the parties jointly on July 10, 1991 for $49,000.

[29] Ms. Martin testified that she and Mr. Martin did not borrow $60,000 from his parents for the purchase of this lot, as alleged by Mr. Martin. She denied that Mr. Martin or either of his parents had ever told her that he had done so, stating that, “I absolutely would have known”. She maintained that the funds for this purchase came from the net proceeds of sale of 220 Southern Avenue.

[30] Ms. Martin next testified about the parties’ acquisition of a camp at Batwing Lake, previously owned by her parents. It is not disputed that this asset had a market value of $105,000 on the valuation date and that it has been retained by Mr. Martin. The issue is an alleged valuation date debt of $35,000 owed by Mr. Martin to a Robert Hemsworth in relation to its purchase.

[31] Ms. Martin testified that she and Mr. Martin purchased this camp from her mother for $70,000 several years after her father’s death, “around 2003”. According to Ms. Martin, “the money came from us”. Ms. Martin agreed that she knew Mr. Hemsworth at the time as a good friend of Mr. Martin. Ms. Martin testified that neither Mr. Martin nor Mr. Hemsworth ever mentioned such a debt to her.

[32] Mr. Martin holds shares in Family Memorials Inc. which the parties agree had a value of $11,000 on the valuation date. Mr. Martin alleges that these shares were owned jointly with Mr. Hemsworth, such that he should only account for a value of $5,500 on the valuation date. He further alleges that he borrowed $9,500 from Mr. Hemsworth to buy the shares which remained owing on the valuation debt.

[33] Ms. Martin testified that she never knew of Mr. Hemsworth being involved in this investment, either as a co-owner or as a creditor.

[34] Ms. Martin also seeks reimbursement from Mr. Martin pursuant to the terms of two Temporary Orders made in this case. The Temporary Order made by me at the December 14, 2016, Case Conference required Mr. Martin to have his employment pension valued. He did not do so. Ms. Martin did so at a cost to her of $960.50. The Temporary Order made by Newton J. on January 26, 2017, required Mr. Martin to maintain coverage for Ms. Martin on his employment health care plan and to pay for any deductible or other related expenses not covered by the plan. Ms. Martin has incurred expenses of $470 which has not been reimbursed to her by Mr. Martin. Ms. Martin seeks the reimbursement of these two amounts.

[35] Ms. Martin identified her April 26, 2018, Financial Statement. Her total monthly income before spousal support is $60 per month ($35/mth HST rebate and $25/mth Ontario Trillium benefit) and she alleges current monthly expenses of $3,600.

[36] On cross examination, Ms. Martin acknowledged that Mr. Martin has health issues. He is diabetic and, according to Ms. Martin, an alcoholic.

[37] Ms. Martin agreed that she and Mr. Martin argued about their finances and her spending habits. She testified that this began after her 2007 fall when she was no longer working.

[38] Ms. Martin acknowledged that she purchased items from “The Shopping Channel”. She identified her Hudson’s Bay Home Outfitters Capital One credit card statement dated December 13, 2013. This card had a balance of $10,255 on this date. She also identified a TD Emerald account statement dated June 14, 2013, with a balance of $12,037. She acknowledged that these two accounts, together with her Sears account, resulted in her having credit card debt of approximately $22,000 in 2013.

[39] Ms. Martin also identified a CIBC Personal Line of Credit statement (account #93536) in the parties’ joint names dated February 6, 2014. This statement indicated a balance of $124,570 as of this date. She acknowledged drawing $10,000 from this account on February 3, 2014. She testified that she used the funds to pay off one of her credit cards and that she told Mr. Martin that she had done so.

[40] Ms. Martin conceded that she had credit card debt of approximately $13,000 in 2010, increasing to about $22,000 in 2013 which she then paid down from the parties’ joint line of credit in the amount of approximately $22,000. She also agreed that she had credit card debt of about $17,000 on the valuation date.

[41] Ms. Martin agreed that Mr. Martin maintained coverage for her on his health care plan after separation at a cost of approximately $111 per month and that he pays her car insurance of $748 per year. She also acknowledged that he had paid her $10,000 as an advance on an equalization payment, pursuant to the requirements of a December 22, 2016, Temporary Order. Ms. Martin further agreed that she withdrew $4,000 from the parties’ CIBC joint Personal Line of Credit after separation.

[42] Cross examination further confirmed that Ms. Martin has received $115,646 as her share of the equity in the matrimonial home, $4,250 as an equalization of the contents of the home and that she has not depleted her RRSP after separation which had a balance of approximately $106,000 at the time of trial.

[43] Ms. Martin agreed that the shares in the company were transferred to Mr. Martin a couple of years after they were married and that she was not aware of Mr. Martin paying anything for the shares.

[44] Ms. Martin was next cross examined about the purchase of 220 Southern Avenue. She agreed that it was purchased in Mr. Martin’s name for $60,000 with a mortgage of $35,000. She insisted that the difference of $25,000 was borrowed from Mr. Martin’s parents – “I know we borrowed the money from Rick’s parents and repaid it in cash”.

[45] Ms. Martin testified that she and Mr. Martin paid a Mr. Peter Landy $49,000 for the Highland Court lot. She specifically recalled being in Mr. Landy’s house and the two of them paying him a $5,000 deposit by cheque, which he then cashed. She recalled Mr. Landy passing away shortly thereafter. Ms. Martin maintained that the balance due on closing was paid from the net proceeds of sale of 220 Southern Avenue and that Mr. Martin’s parents did not advance them $60,000 for this purchase.

[46] In regard to the purchase of the Batwing Lake camp from her mother in 2003, Ms. Martin agreed that she, Mr. Martin and the Hemsworths discussed the purchase and that she understood that “the Hemsworths were going in on it”. She candidly acknowledged that she simply did not know how it was arranged between Mr. Martin and Mr. Hemsworth. When shown a TD Bank draft in the amount of $70,000, dated May 12, 2003 and payable to Rick Martin, Ms. Martin testified that she did not recall having seen it before.

[47] On re-examination, Ms. Martin testified that her Sears debt, the Hudson’s Bay credit card debt and the TD Emerald account debt had all been incurred over the course of the previous 15 or 20 years. She further testified that she had been responsible for purchasing everything all family members required, including household items and furnishings, clothes, groceries and outside furniture. She agreed that she and Mr. Martin shopped for “bigger items” together. She also testified that Mr. Martin had lavish spending habits for items such as “high end” food, alcohol, snow machines, trailers, etc.

Applicant’s Read-Ins from Respondent’s Questioning

[48] Mr. Martin was questioned by Ms. Martin’s counsel on August 23, 2017. Counsel read in, as part of the applicant’s case, questions and answers 59 to 74 of this questioning.

[49] These questions and answers related to the transfer of the company from Mr. Martin’s father to Mr. Martin soon after the parties married. Mr. Martin agreed that he did not receive a wage for the work he did for the company. When asked why that was, he replied, “Well my father said that you’ll be well surprised one day if I give you the, hand you over the business”. Mr. Martin stated that friends of his who worked for his father “used to get regular salaries” but that he “never did receive actual pay”.

[50] It was suggested to Mr. Martin that one of the reasons his father did not pay him was because at some point he was going to give him the company. Mr. Martin indicated that his father did not exactly say this but that he could “figure it out”. He agreed that this is in fact what did occur.

The Respondent’s Case

Susan Hemsworth

[51] Ms. Hemsworth is the widow of Robert Hemsworth whom she describes as having been “best friends” with Mr. Martin.

[52] Ms. Hemsworth testified that her husband advanced $70,000 to Mr. Martin to pay for the Batwing Lake camp, with one-half of that $70,000 being lent to Mr. and Ms. Martin and to be paid back to the Hemsworths when they could afford to do so. According to Ms. Hemsworth, she and her husband discussed this between themselves and agreed upon the arrangements at the time of the advance.

[53] Ms. Hemsworth identified a copy of a TD Bank bank draft dated May 12, 2003, in the amount of $70,000 and payable to Rick Martin as the $70,000 advanced to the Martins by her husband.

[54] Ms. Hemsworth further testified that her husband and Mr. Martin jointly purchased 200,000 shares in Family Memorials Inc. for $20,000, $9,500 of which was lent to Mr. Martin by Mr. Hemsworth, according to Ms. Hemsworth.

[55] Ms. Hemsworth identified a letter dated January 21, 2004, addressed to “Dear Paul” and signed “Love Always, Mom and Dad” as a letter written by her husband to their son Paul. She testified that her husband wrote this letter and she read it and approved of its contents.

[56] In this letter, written prior to Mr. and Ms. Hemsworth travelling to Cancun, Mexico, Mr. Hemsworth explains to Paul the following:

1. “We bought into the camp at Batwing for $35,000”;

2. “We also lent Rick $35,000 which is still outstanding”;

3. “Rick and I invested $20,000 into the shares of a new company and purchased 200,000 shares of which we both own 100,000 shares”;

4. “I lent Rick $9,500 to purchase his shares, which is still outstanding”.

[57] Mr. Hemsworth instructed his son to talk to Mr. Martin about these issues in the event something happened to him and Ms. Hemsworth on their trip.

[58] Ms. Hemsworth testified that Mr. Martin had made two $12,500 payments to her toward the total debt.

[59] On cross examination, Ms. Hemsworth explained that these two payments were received by her in February 2018 and that they were actually drawn on the account of Donna Martin-Churylo, Mr. Martin’s sister. The cheques were cashed by Ms. Hemsworth. She confirmed that neither she nor Mr. Hemsworth had ever received any other payments towards these debts.

Donna Martin-Churylo

[60] Ms. Martin-Churylo is Mr. Martin’s sister. She testified that she was aware that her parents provided Mr. Martin with $60,000 to purchase the Highland Court lot on the understanding that if they should need the money back at some point it would be repaid.

[61] Ms. Martin-Churylo testified that her parents also provided her with $60,000 to assist her in purchasing a house in Regina. According to Ms. Martin-Churylo, the money was advanced on the same terms as the advance to her brother. She testified that she repaid her parents the $60,000 when she sold her Regina home.

[62] Ms. Martin also testified about her role in the company. According to her, she was expected, as were her siblings, to work in the family business and to do what they were told by her parents. Her jobs included cleaning out trucks and helping her mom with the company books; her brother cut grass and plowed snow. She testified that neither she nor her brother were paid for their efforts.

[63] Ms. Martin-Churylo testified that Ms. Martin told her during a telephone call that “your dad gave the business to Rick”. This was not put to Ms. Martin during her cross examination.

[64] On cross examination, Ms. Martin-Churylo acknowledged that she was not present when the $60,000 was advanced to her brother, that she did not know how it was done and that she only knew about it because her parents told her about it. She agreed that Mr. and Ms. Martin had sold the home on 220 Southern Avenue and were living with her parents at the time of the purchase of the lot on Highland Court.

[65] Ms. Martin-Churylo further acknowledged that it was her understanding that if her parents had died before she and Mr. Martin repaid their respective $60,000 advances, each would be entitled to keep the money as part of their inheritances.

[66] Ms. Martin-Churylo testified that she repaid the $60,000 advanced to her because she “made money” on the sale of her Regina home and “it was my second marriage and I knew I would get it for an inheritance anyway”. She repaid $60,000 to her parents without interest and without any prior request for repayment having been made.

Elio Martin

[67] Elio Martin (“Mr. Martin Sr.”) is the respondent’s father. He incorporated the company in the 1970’s as a small landscaping and winter and summer maintenance service. He had employees on the payroll, his wife did “the bookwork” and his children assisted him in the business.

[68] According to Mr. Martin Sr., the children were not paid for the work they did for the company but they were rewarded or helped out financially in different ways. At one point, he simply asked Mr. Martin if he would like to take over the company “no strings attached”. Mr. Martin Sr. testified that this is what in fact happened, without him being paid anything for the company by his son.

[69] Mr. Martin Sr. testified that he recalled his son’s purchase of the Highland Court lot. He recalled that his son needed $60,000 “immediately” and that he gave it to him on the understanding that “if we need the money we will ask you for it”.

[70] Mr. Martin Sr. also testified that he had no involvement in his son’s purchase of 220 Southern Avenue. He denied that he had been repaid any money by his son and Ms. Martin from their cash wedding gifts.

[71] On cross examination, Mr. Martin Sr. acknowledged that his son had never been asked to repay the $60,000 allegedly lent to him.

[72] In response to a question from the court, Mr. Martin Sr. testified that the company did have a value when transferred to his son and that he “gave” his son the company because “he had helped out”.

Rick John Martin

[73] Mr. Martin testified that his current health is poor as he suffers from diabetes, high blood pressure, cholesterol and experiences numbness in his feet and legs. According to Mr. Martin, his health issues force him to “job out” more work previously done by his company.

[74] Mr. Martin identified his January 2018 Public Services and Procurement Canada Pension Statement. This confirms Mr. Martin’s current gross monthly pension to be $3,169.35, monthly deductions to be $661.41 and net monthly pension to be $2,507.94.

[75] The monthly deductions for the public service health care and dental plans, both of which currently include coverage for Ms. Martin, are $113.80 and $36.85 respectively. These monthly deductions would be reduced by approximately 50% if Ms. Martin’s coverage was terminated.

[76] Mr. Martin was asked to explain his purchase of shares and current shareholdings in Family Memorials Inc., being CIBC Investment Account # 571-49086, noted as “joint with Rob Hemsworth” and valued at $5,500 in his May 8, 2018, financial statement.

[77] Mr. Martin testified that a friend of his offered him a deal on the purchase of shares in this company – 200,000 shares at 10 cents per share. He testified that he purchased $20,000 worth of shares with money from his line of credit such that “I own 200,000 shares”. According to Mr. Martin, he then met with Mr. Hemsworth and offered him one-half of the shares at the same share price, which Mr. Hemsworth accepted.

[78] Mr. Martin then testified that Mr. Hemsworth offered to fund the entire $20,000 purchase price, $10,000 for Mr. Hemsworth’s shares and the balance a loan for Mr. Martin’s purchase of shares. Mr. Martin accepted and Mr. Hemsworth gave Mr. Martin a cheque for $19,500 which Mr. Martin deposited onto his line of credit.

[79] Mr. Martin explained that the CIBC investment account holding the shares was in his name alone because the seller of the shares was a personal friend of his whom he did not want to know that he had “re-sold” one-half of the shares.

[80] Mr. Martin testified that he became the sole shareholder of the company at age 25, when his father transferred the shares to him “out of the blue”. He explained that his father wanted out of the company and was going to dissolve it unless Mr. Martin agreed to take it over. Mr. Martin testified that he accepted and that the shares were transferred to him without any payment.

[81] According to Mr. Martin, he worked for the company starting when he was a teenager, doing snow ploughing and lawn maintenance. Mr. Martin was not on the payroll, explaining that his father “pieced him off here and there”. Mr. Martin denied that he currently takes any “under the table” income for work performed by him on behalf of the company. He also denied that he puts personal expenses through the company, but conceded that he takes advantage of the business.

[82] Mr. Martin testified that the shopping cart collection business is not active anymore, but for one store that he and his son work with on an on-call basis, with little income.

[83] Mr. Martin estimated the market value of the company to be approximately $30,000, less a $5,000 contingent, notional liability in the event of sale.

[84] Mr. Martin testified that he and his wife wanted to purchase the Batwing Lake camp from his mother-in-law for $70,000, but that he “was already into his dad” at this point in time. According to Mr. Martin, Mr. Hemsworth had recently “came into some money” and offered to lend him the $70,000 for the purchase price. Mr. Martin testified that he then suggested the two couples share the purchase price and the camp. This was apparently agreed to by all parties and Mr. Hemsworth soon provided Mr. Martin with the TD Bank draft dated May 12, 2003, for $70,000. Mr. Martin testified that “I paid the lawyer”.

[85] Mr. Martin testified that he feels he owes debts of $9,500 and $35,000 to the estate of Robert Hemsworth as the loans have never been forgiven. He acknowledged that his sister made two payments of $12,500 to Ms. Hemsworth on his behalf and that he is required to repay this money to his sister.

[86] Mr. Martin testified that he purchased the residence at 220 Southern Avenue for “investment purposes”, having saved $25,000 as the cash component of the purchase price and mortgaging the balance. He denied that he borrowed the $25,000 down payment from his parents.

[87] Mr. Martin testified that he and Ms. Martin purchased the lot on Highland Court privately for $65,000. He identified a cancelled cheque for $5,000 drawn on the CIBC account of Rick Martin or Donna Martin, dated February 14, 1991, and payable to Peter Landy as the deposit paid on the purchase.

[88] According to Mr. Martin, Mr. Landy died before closing and his family attempted to renege on the transaction. Mr. Martin testified that he quickly obtained the $60,000 balance due from his father and presented it to Mr. Landy’s family who then agreed to complete the transaction. Mr. Martin testified that the agreement between him and his father was that he was to repay the $60,000 if and when his father asked for it and that he has never done so.

[89] Mr. Martin was shown the Service Ontario PIN sheet for 1695 Highland Court, which records a July 10, 1991 transfer of this property to the parties for $49,000. He explained that Mr. Landy wanted to show the sale price as $49,000 and to hide the other $11,000 from his ex-wife.

[90] Mr. Martin testified that he and Ms. Martin often argued about her excessive spending habits. According to him, without his knowledge, Ms. Martin activated a CIBC credit card issued to him that he had never activated and ran up a $13,000 account. In 2014, the day before an earlier separation, Ms. Martin apparently withdrew $20,000 from a line of credit without his knowledge. During an attempted reconciliation, Ms. Martin disclosed to Mr. Martin that she had accumulated $70,000 in debt, according to Mr. Martin.

[91] On cross examination, Mr. Martin was unable to explain why his May 8, 2018, financial statement indicated that he was “self-employed, carrying on business under the name of Elio Martin Service Corporation”, with self-employment income noted as “unknown”. He denied receiving any income or taking any money from the company in 2017.

[92] Mr. Martin’s July 12, 2017, financial statement, with identical entries, was then put to him. He agreed that he had never disclosed or acknowledged any self-employment income during this litigation, explaining that he had not taken money from the company during this period of time. He explained the income attributed to Ms. Martin in her income tax returns for cart collection was done by their accountants for her benefit to enhance her CPP credits.

[93] Mr. Martin was referred to a January 19, 2018, letter from MNP to his lawyer, in which MNP lists the company’s assets and liabilities as of the valuation date. Liabilities listed include a bonus payable of $15,000. Mr. Martin explained that he saw this as a bonus payable to him if he chose to take it, which he never has.

[94] Mr. Martin was shown the title abstract for 220 Southern Avenue. He agreed that he purchased this property in his name alone on December 5, 1983, for $60,000 with a $35,000 mortgage. It was then transferred into the joint names of him and his wife on March 11, 1988, and sold on April 30, 1991, for $110,000. He estimated the equity at the time of sale to have been approximately $68,000.

[95] Mr. Martin testified that he paid the purchase price of $65,000 for the lot on Highland Court before he got title to the lot and before the close of the sale of 220 Southern Avenue, such that the equity from the sale of the latter property would not have been available for the purchase of the former.

[96] The transfer recording the parties’ purchase of the Highland Court lot was registered on July 10, 1991. Mr. Martin conceded that, but for copy of the $5,000 deposit cheque for the purchase of the Highland Court lot, he has no documentation to corroborate his evidence that he had paid $65,000 for the lot prior to the closing of the sale of 220 Southern Avenue and prior to the transfer of title to the lot.

[97] On cross examination, Mr. Martin insisted that he paid $65,000 for the Highland Court lot despite the fact the Land Transfer Tax Affidavit, signed under oath by him and Ms. Martin, shows the total consideration to have been $49,000. He testified that he “recalled some cash because the vendor wanted that”, that “he had a third party who made the deal work”, and that he was “not sure who I used as a lawyer if I did”. He explained that he paid the $5,000 deposit, his father paid $49,000 by cheque and that $11,000 was paid in cash, apparently also from his father. He acknowledged signing a false Land Transfer Tax Affidavit when purchasing this lot.

[98] Mr. Martin agreed that MNP, his accountants, valued the equity in the company at $29,844 as of the valuation date. He was unable to recall why he chose $5,000 as the deduction for the potential costs of sale of the company, conceding that he has not sold or liquidated the company.

The Positions of the Parties

The Applicant

Spousal Support

[99] Ms. Martin is seeking an order for spousal support from the date of judgment without a retroactive variation.

[100] Ms. Martin submits that her entitlement to spousal support should not be in issue. She submits that the issues to be determined in regard to spousal support include:

1. A determination of Mr. Martin’s income;

2. The quantum of spousal support Mr. Martin should pay from the date of judgment to the date of the division of his pension at source; and

3. The quantum of spousal support Mr. Martin should pay after the division of his pension at source.

[101] Ms. Martin submits that this was a long term traditional marriage in which Mr. Martin was the primary income earner and she was a stay at home mother. Ms. Martin submits that she only has a Grade 11 education and no significant job skills. Ms. Martin submits that she suffered a serious injury in 2007 which has left her with permanent disabilities such that it would be unreasonable to expect her to contribute to her own support.

[102] Ms. Martin contends that their family enjoyed a very comfortable standard of living prior to separation, including a large, expensive home, recreational property and numerous vehicles. She submits that her standard of living has decreased dramatically since separation while Mr. Martin’s has not.

[103] Ms. Martin submits that she has a strong compensatory claim to spousal support which entitles her to spousal support which will essentially equalize the net disposable incomes of her and Mr. Martin.

[104] Ms. Martin submits that income should be imputed to Mr. Martin for the purposes of determining his income for spousal support purposes. Ms. Martin submits that in the three years prior to separation, income was attributed to her from the company as follows:

1. 2013 - $10,000;

2. 2014 - $15,000;

3. 2015 - $10,000.

[105] Ms. Martin also submits that the evidence establishes that a $15,000 bonus was payable to Mr. Martin by the company after separation that he has simply chosen not to draw from the company.

[106] Ms. Martin submits that Mr. Martin is able to draw income from the company after separation consistent with income which was diverted to her prior to separation. She contends that Mr. Martin, who controls the company, has simply chosen not to draw this income after separation.

[107] In these circumstances, Ms. Martin submits that the average of the 2013 – 2015 income ($11,667) from the company which was attributed to her in those years should now be imputed to Mr. Martin post separation for spousal support purposes.

[108] Ms. Martin further submits that additional income should be imputed to Mr. Martin to account for undeclared income and financial benefits historically received by him throughout the marriage. Ms. Martin points to gas and insurance for all family vehicles being charged to the company and the income received for shopping cart collection. Ms. Martin submits that $5,000 annual income be imputed to Mr. Martin to account for undeclared income.

[109] Pursuant to what Ms. Martin candidly admits is her best case scenario, she submits that Mr. Martin’s income should be found to be approximately $55,000 per year for spousal support purposes, being his 2018 pension income of $38,032, plus imputed income of approximately $16,700.

[110] Ms. Martin submits that Mr. Martin should be required to pay spousal support based on this income at the upper end of the suggested range provided by the Spousal Support Advisory Guidelines (“SSAG”) from the date of judgment until Mr. Martin’s employment pension is divided at source and the maximum transferable amount transferred to Ms. Martin pursuant to an equalization of net family properties.

[111] Ms. Martin submits that the quantum of spousal support payable by Mr. Martin should then be varied to reflect the division of his pension at source, which will reduce Mr. Martin’s pension income by half and provide Ms. Martin with a significant lump sum with which to generate income.

[112] Upon the division of Mr. Martin’s pension, Ms. Martin submits that Mr. Martin’s income should be found to be approximately $35,700 per year, being his current pension income of $38,032 reduced by 50%, plus imputed income of approximately $16,700. Ms. Martin is prepared to have income of $19,000 per year imputed to her after pension division on the assumption that this would be a fair and reasonable income for her to generate from the lump sum she receives upon the division of Mr. Martin’s pension together with other assets of hers.

[113] Ms. Martin is also seeking, as security for Mr. Martin’s spousal support obligation, to be irrevocably designated as beneficiary of any supplemental death benefit payable on Mr. Martin’s death through his past employment. Ms. Martin further requests an order requiring Mr. Martin to maintain coverage for her on his health and dental benefits for as long as she qualifies for such coverage.

Property

[114] Ms. Martin submits that there are three issues to be addressed in regard to Mr. Martin’s employment pension:

1. Should the value of Mr. Martin’s pension be included in his Net Family Property (“NFP”);

2. Should Mr. Martin be ordered to transfer the maximum transferable amount from his pension to Ms. Martin as a component of an equalization payment; and,

3. Should the value of the survivor pension which Ms. Martin is entitled to on the death of Mr. Martin be included in her NFP.

[115] Ms. Martin submits that the value of Mr. Martin’s pension must be included in his NFP pursuant to s. 4 of the Family Law Act, R.S.O. 1990, c. F.3. Ms. Martin submits that this court does not have jurisdiction to remove the value of Mr. Martin’s pension from the equalization calculation, as suggested by Mr. Martin.

[116] Ms. Martin further submits that the court has the authority to order that Mr. Martin’s pension benefits be divided at source. She requests that 50% of the value of his pension benefits be transferred to her retirement savings plan as part of an equalization of the parties’ NFP’s.

[117] Ms. Martin submits that the value of the survivor pension should not be included in her NFP. She advances two reasons in support of this submission. First, pursuant to the relevant pension legislation, a non-member spouse who receives a lump sum amount pursuant to a pension division ceases to be entitled to any survivor benefit. Second, if the parties divorce, a former spouse is not entitled to any survivor benefits. In either case, her entitlement to the survivor pension is lost.

[118] Ms. Martin submits that this court should order a division of Mr. Martin’s pension benefits and the transfer of a lump sum to her. Ms. Martin further submits that she is seeking, and is entitled to, a divorce in this litigation. Ms. Martin’s position is that the occurrence of either of these events will result in her losing her entitlement to the survivor pension such that the value of it should not be included in her NFP.

[119] Ms. Martin submits that Mr. Martin should be required to account for the entire valuation date value of his shares in Family Memorials Inc. (agreed to be $11,000) and that he should not be entitled to deduct an associated $9,500 debt allegedly owed to Robert Hemsworth.

[120] Ms. Martin submits that Mr. Martin has acknowledged that these shares were purchased in his name and that the investment account which holds the shares remains in his name. Ms. Martin submits that Mr. Martin was the legal owner of all of these shares on the valuation date. Mr. Martin’s explanation that he sold one-half of the shares to Mr. Hemsworth shortly after purchase but hid this fact from the original vendor is suggested to lack credibility.

[121] Ms. Martin further submits that Mr. Martin should not be allowed a $9,500 deduction in his NFP calculation for the debt allegedly owed to Mr. Hemsworth in relation to the purchase of the shares. Ms. Martin submits that no payments have been made or demanded on this debt and that it is statute barred. Ms. Martin submits that if there is no legal obligation to pay a debt it should not be deducted in calculating a spouse’s NFP.

[122] Mr. Martin was the owner of the company on the valuation date. Two issues must be addressed in regard to the company; the fair market value of the company on the valuation date and whether the company was gifted to Mr. Martin such that its value is excluded from the calculation of Mr. Martin’s NFP.

[123] Ms. Martin submits that the value of the company on the valuation date was $29,844, being the equity (assets less liabilities) determined by MNP, accountants for the company and Mr. Martin. MNP valued the company’s property and equipment at book value and included a $15,000 bonus payable as a liability.

[124] Ms. Martin submits that the $29,844 value should not be reduced by $5,000 on account of notional disposition costs, as requested by Mr. Martin, because the asset has not been sold nor is a sale contemplated. Ms. Martin also contends that the $15,000 bonus payable should be a separate asset accounted for by Mr. Martin in the calculation of his NFP.

[125] Ms. Martin disputes that the transfer of the company to Mr. Martin by his father was a gift. Ms. Martin submits that Mr. Martin worked for the company for years without pay prior to the transfer on the implicit understanding between him and his father that the company would eventually be transferred to him.

[126] Several alleged debts remain in dispute between the parties:

1. Mr. Martin’s $35,000 debt to Mr. Hemsworth in relation to the purchase of the Batwing Lake camp;

2. Mr. Martin’s $60,000 debt to his parents in relation to the purchase of the vacant lot on Highland Court;

3. The $25,000 debt Ms. Martin alleges the parties owed to Mr. Martin’s parents in relation to Mr. Martin’s purchase of 220 Southern Avenue; and

4. Ms. Martin’s alleged debts to Sears ($2,000) and Darlene Metzger ($5,000).

[127] The parties are in agreement that Mr. Martin account for the entire value of the Batwing Lake camp ($105,000) when determining his NFP. Mr. Martin contends that Mr. Hemsworth lent him $35,000 at the time of purchase which was outstanding on the valuation date.

[128] Ms. Martin concedes that Mr. Hemsworth advanced $70,000 to Mr. Martin by way of TD bank draft dated May 12, 2003. However, this property was registered in the names of Mr. and Ms. Martin at the time of purchase and then transferred into the names of Mr. Martin and Mr. Hemsworth for nominal consideration on December 8, 2003. Ms. Martin submits that the transfer of a one-half interest in the camp to Mr. Hemsworth extinguished any debt owing to him by Mr. Martin.

[129] In the alternative, Ms. Martin submits that there have been no payments made or demanded in relation to this loan for over 15 years such that it is statute barred.

[130] Ms. Martin contends that Mr. Martin should not be allowed to deduct a $60,000 debt to his parents, allegedly advanced for the purchase of the Highland Court lot, when calculating his NFP. Ms. Martin submits that the down payment for this lot came from the sale proceeds of 220 Southern Avenue and that she was never made aware of any money lent by or owing to Mr. Martin’s parents in relation to this transaction.

[131] Ms. Martin further submits that there is no written loan agreement in any form in relation to this loan and that there have never been any payments made or demanded on the loan. Ms. Martin contends that enforcement of the loan is statute barred and that Mr. Martin is therefore not entitled to deduct it when calculating his NFP.

[132] In any event, Ms. Martin submits that the evidence establishes that this loan would be forgiven on the death of Mr. Martin’s parents such that it is not truly a debt owing on the valuation date.

[133] The parties are in agreement that Mr. Martin had “paper equity” of $25,000 in 220 Southern Avenue on the date of marriage. However, Ms. Martin submits that Mr. Martin’s father lent Mr. Martin $25,000 for the down payment on this transaction which was owing on the date of marriage and repaid shortly after marriage from cash wedding gifts. Ms. Martin submits that this $25,000 debt eliminates the $25,000 date of marriage equity claimed by Mr. Martin.

[134] Ms. Martin submits that she had a Sears Financial Mastercard debt of $2,000 on the valuation date. She was only able to provide only an August 2013 statement (account balance $2,900) and a February 24, 2017, Scotiabank Mastercard letter (acknowledging final and complete payment of $2,000 on the same account) to establish this debt. Ms. Martin submits that this is the best evidence available to her and that these documents, together with her evidence, establishes both the existence and the balance of this debt on the valuation date on a balance of probabilities.

[135] Ms. Martin submits that she is also entitled to certain miscellaneous payments from Mr. Martin, including:

1. $861.66, being the balance of the repair bill at Badanai Motors;

2. $470, being the out of pocket portion of dental fees incurred by Ms. Martin which she submits was Mr. Martin’s responsibility pursuant to the Temporary Order of Shaw J. dated January 26, 2017; and

3. $960.50, being the cost to Ms. Martin for a valuation of Mr. Martin’s pension which Ms. Martin submits was Mr. Martin’s responsibility pursuant to my Temporary Order dated December 14, 2016.

[136] Ms. Martin opposes Mr. Martin’s claim for an unequal division of NFP in his favour due to an alleged unconscionability if NFP’s were equalized. Ms. Martin submits that there is a very strong presumption that the NFP’s of separated spouses are to be equalized and that courts have very limited discretion to order otherwise. Ms. Martin submits that the threshold of unconscionability is exceptionally high – to cross the threshold, an equal division of NFP’s must “shock the conscience of the court”.

[137] Ms. Martin submits that Mr. Martin has made only vague and general allegations about her spending habits and accumulation of debt. She contends that this ignores the division of responsibility within their family, pursuant to which she had almost exclusive responsibility for purchasing for the entire family.

The Respondent

Spousal Support

[138] Mr. Martin submits that the evidence establishes that the company has historically been able to distribute income of between $10,000 and $15,000 per year and that averaging and imputing that income to him may have been reasonable in the past. However, Mr. Martin submits that the evidence does not support doing so now.

[139] Mr. Martin submits that he is 58 years old with health issues and physical limitations. He contends that “40 years of collecting shopping carts is enough” and that other work traditionally done by the company is now performed by subcontractors.

[140] Mr. Martin does not dispute that this was a long term traditional marriage entitling Ms. Martin to spousal support on a compensatory basis. He also does not dispute that Ms. Martin is in need of spousal support. Mr. Martin contends, however, that times change. The company is not in a position to distribute the income it once did. Mr. Martin submits that no income should be imputed to him from the company. He submits that his income for spousal support purposes is his pension income only.

[141] While Mr. Martin does not dispute Ms. Martin’s physical limitations, he submits that she is not disabled and that she must make some effort to contribute something to her own support, which she has not done. Mr. Martin also submits that Ms. Martin is required to generate whatever income she can from her liquid assets or that a reasonable rate of return should be imputed as income to her.

[142] Mr. Martin points out that Ms. Martin has received approximately $110,000 for her interest in the matrimonial home and contents and a $10,000 advance to be credited against an equalization payment. She also has an RRSP with a value of more than $100,000. Mr. Martin submits that Ms. Martin has an obligation to organize her financial assets such that a reasonable rate of return is generated to contribute to her support.

[143] Mr. Martin submits that the court has two options available to it in addressing Ms. Martin’s interest in his pension plan:

1. Order a lump sum division of the maximum transferable amount at source, as sought by Ms. Martin; or

2. Divide the pension by way of a spousal support order in favour of Ms. Martin equal to one-half of Mr. Martin’s gross monthly pension payments and remove the value of the pension from the calculation of Mr. Martin’s NFP.

[144] Mr. Martin suggest the second option removes any issue as to enforceability of spousal support and provides Ms. Martin with a guaranteed income stream that is not subject to market fluctuation.

[145] Mr. Martin suggests that Ms. Martin’s request for an immediate transfer of a lump sum amount to equalize his pension is problematic. He submits that if the lump sum is paid into a locked-in retirement account it would not generate an income stream for her support. If it is not locked in, it could be improvidently depleted, a legitimate concern given Ms. Martin’s past spending habits, according to Mr. Martin.

[146] Mr. Martin submits that the value of Ms. Martin’s entitlement to a survivor pension is an asset of hers that should be included in the calculation of her NFP. Mr. Martin contends that this is an asset of Ms. Martin that she had an entitlement to on the valuation date such that it must be included in her NFP.

[147] Mr. Martin acknowledges that the shares in Family Memorials Inc. are registered in his name alone. The parties agree these shares had a value of $11,000 on the valuation date. However, Mr. Martin submits that Mr. Hemsworth “bought in” with a $20,000 payment after his initial purchase, resulting in Mr. Martin holding one-half of the shares in trust for Mr. Hemsworth and owing Mr. Hemsworth $9,500 on the valuation date.

[148] Mr. Martin submits that his evidence in this regard is corroborated by the evidence of Ms. Hemsworth and by the letter from Mr. and Ms. Hemsworth to their son Paul, in which this debt is specifically mentioned as being outstanding. Mr. Martin submits that this same evidence establishes that, on a balance of probabilities, he still owed Mr. Hemsworth $9,500 in relation to this transaction on the valuation date.

[149] Mr. Martin disagrees with Ms. Martin’s position on the fair market value of the company on the valuation date. Mr. Martin points out that MNP utilized the book value of the property and equipment ($37,923) in arriving at an equity value of $29,844. Mr. Martin submits that the appraised value of the property and equipment ($35,769) is the correct way to value these assets in determining the fair market value of the company’s equity on the valuation date. This would result in the value of the company being $27,690, according to Mr. Martin.

[150] In any event, Mr. Martin submits that the company was given to him by his father such that he is entitled to an exclusion of its value in calculating his NFP. Mr. Martin submits that his father’s evidence was clear – he wanted out of the company and offered it to his son “no strings attached”. If his son did not want it he would have dissolved it. Mr. Martin submits that it is not in dispute he paid nothing for the company.

[151] Mr. Martin disagrees that his past service to the company without pay represents consideration for the transfer of the company to him. He notes that both he and his sister worked for the company and that both were otherwise compensated for their efforts. Their work for the company, according to Mr. Martin, was no more than two young adults helping their father in a family business for the benefit of all.

[152] Mr. Martin submits that the $35,000 debt owed to Mr. Hemsworth is properly deductible in the calculation of his NFP. Mr. Martin contends that there is no real issue that these funds were given to him by Mr. Hemsworth at the time of the purchase of the Batwing Lake camp. Ms. Hemsworth confirmed the advance and the outstanding debt. Mr. Martin submits that he needed $70,000 to buy the camp and that his friend had the money and lent it to him on the understanding that the two couples would share the camp.

[153] Mr. Martin further submits that the $60,000 he alleges he borrowed from his father to buy the Highland Court lot is a debt that should be included in the calculation of his NFP. Mr. Martin submits that his evidence on this issue is corroborated by his father and by his sister, who received an identical sum from their parents for her purchase of a home a few years later.

[154] Mr. Martin denies that he borrowed $25,000 from his father to assist in his purchase of 220 Southern Avenue and that he owed this money to his father on the date of marriage. He contends that he had savings of $25,000 that he used for this purchase. Mr. Martin Sr. testified that he “had nothing to do with” this purchase and that he was not paid anything from his son’s wedding gifts.

[155] Mr. Martin submits that Ms. Martin bears the onus of proving that she had a Sears debt of $2,000 on the valuation date and that she has failed to meet that onus. It is submitted that the 2013 Sears Financial Mastercard statement and the 2017 Scotiabank letter offered as proof of the debt are insufficient to establish this debt as of the valuation date, being April 11, 2016.

[156] Mr. Martin submits that Ms. Martin has also not met the onus of establishing a debt of $5,000 allegedly owing to Darlene Metzger on the valuation date. Mr. Martin submits that Ms. Martin’s evidence on this issue was vague and supported only by a series of 14 cheques dated in 2015 and 2016 in various amounts payable to Ms. Metzger. Mr. Martin submits that there is no firm accounting provided to arrive at a debt of $5,000 owing on the valuation date.

[157] Mr. Martin disputes that the terms of the Temporary Order of Newton J. dated December 22, 2016, require him to pay the remaining balance of the December 30, 2016, Badanai Motors invoice relating to repairs to the Chevrolet Malibu being driven by Ms. Martin. Mr. Martin submits that the terms of the order are ambiguous and do not clearly require him to pay this bill. In any event, Mr. Martin contends that the repairs undertaken were unnecessary, that he has paid one-half of the bill and that he should not be held responsible for the balance.

[158] Mr. Martin acknowledges that the threshold to establish unconscionability is high, however he submits that the circumstances of this case meet that threshold. Mr. Martin submits that the evidence establishes that financial issues, including Ms. Martin’s spending and accumulation of debt, were a constant source of conflict in their marriage.

[159] Mr. Martin submits that Ms. Martin’s constant purchasing of useless household items was an intentional and reckless depletion of her NFP such that an equalization of the parties’ NFP’s would be unconscionable.

Discussion

Mr. Martin’s Federal Pension

[160] The division of Mr. Martin’s federal pension within an equalization of the parties’ NFP’s is governed by the Pension Benefits Division Act. S.C. 1992, c. 46, Sch II (the “PBDA”) and the Pension Benefits Division Regulations, SOR/94-612 (the “PBDR”).

[161] Pursuant to s. 4(1) of the PBDA, a member of a pension plan or a spouse or former spouse may apply to divide the member’s pension benefits between the member and the spouse. Section 4(2) of the PBDA allows this application to be made by a member, spouse or former spouse when a court makes an order that provides for the pension benefits to be divided between them.

[162] Section 8(1)(a)(ii) of the PBDA provides that a division of pension benefits shall effected by transferring 50% of the value of the member’s pension benefits that have accrued to the member during the period subject to division to the spouse’s or former spouse’s retirement savings plan or fund.

[163] Section 13(a) of the PBDR states that where the member is vested on the valuation day the value of pension benefits that have accrued to a member during the period subject to division is the actuarial present value on the valuation day of the member’s pension benefits accrued during the period subject to division. Section 2 of the PBDR defines valuation day as the day in respect of which the determination of the value of a member’s pension benefits is made pursuant to the Regulations.

[164] The PBDA and PBDR therefore allow for the division of Mr. Martin’s pension at source up to a maximum of 50% of its value as of the date of division. As the pension is in pay the maximum transferable amount will decrease from the FLA valuation date to the date of division.

[165] Pursuant to section 10.1(5) of the FLA, if a pension is in pay, a court can order a division of pension payments in favour of a former spouse but not order any other division of the spouse’s interest in the plan. This legislation does not apply to Mr. Martin’s federal pension. Counsel suggested it could be considered by analogy in support of Mr. Martin’s position that a lump sum division not be ordered, that the value of his pension be removed from the equalization calculation and that his pension income be equally divided, not at source but pursuant to a spousal support order.

[166] The recent Ontario Court of Appeal case of Fawcett v. Fawcett, 2018 ONCA 150 dealt with the issue of a federal pension in pay as family property under the Family Law Act. At trial, the non-member spouse had sought an immediate lump-sum transfer from the member spouse’s pension to satisfy the equalization payment. The member spouse wanted to pay the non-member spouse on a monthly basis by having her pension payments split at source. The trial judge held that the PBDA only allowed for a lump-sum division.

[167] The Ontario Court of Appeal agreed with the trial judge’s interpretation of the PBDA and held that the PBDA did not allow the pension administrator to divide monthly payments. The Court also found that the trial judge’s order for a lump sum division was not precluded by the pension division provisions of the FLA. (Fawcett paragraphs 4,16,17 and 27)

[168] The Court also rejected the suggestion that the combined operation of ss. 10.1(3) and (5) of the FLA precluded a lump sum division when a pension is in pay. At paragraph 31, the Court stated that s. 10.1(5) of the FLA does not prohibit “a lump sum transfer for a pension in pay. Instead, s. 10.1(5) simply provides courts with another option – division of payments.”

[169] Pursuant to s. 4 of the FLA, Mr. Martin’s pension is property, the value of which must be included in his NFP. I have not been provided with any authority that would support the exclusion of the value of Mr. Martin’s pension from his NFP in favour of equalizing the value of the pension with Ms. Martin by way of spousal support payments from Mr. Martin. In McNutt v. McNutt, 2000 Carswell Ont 847 (Ont. SCJ), at paragraph 10, Walters J. held that “there is no statutory authority to arbitrarily remove a pension from the calculation of net family property”.

[170] I reject Mr. Martin’s submission that the value of his pension should be removed from the calculation of his NFP and that the value of his pension be equalized by way of spousal support payments to Ms. Martin.

[171] The parties are in agreement that the value of Mr. Martin’s pension on the valuation date, if it is included in his NFP, is $681,152. It is by far the most valuable asset of the parties. The only logical and reasonable way to equalize the parties’ NFP’s, including Mr. Martin’s pension, is to order that the maximum transferable amount available be transferred to a locked-in financial instrument owned by Ms. Martin, pursuant to s. 8 of the PBDA, in partial satisfaction of the equalization payment found owing to her. This will obviously impact Mr. Martin’s ability to pay, and Ms. Martin’s need for, spousal support.

[172] I therefore order that Mr. Martin transfer to Ms. Martin, in accordance with s. 8 of the PBDA and in partial satisfaction of the equalization payment owing to her, the maximum transferable amount from his federal pension plan. If he fails to do so within 30 days of the date of this judgment, Ms. Martin may apply to do so.

Ms. Martin’s Survivor Pension

[173] Ms. Martin, as the spouse of Mr. Martin, has a de facto entitlement to a survivor pension. The parties are in agreement that the value of Ms. Martin’s survivor pension on the valuation date, if it is included in her NFP, is $91,461. Mr. Martin submits that the net value must be included in Ms. Martin’s NFP. Ms. Martin argues to the contrary, suggesting that she loses her interest in this pension upon divorce or division of the Mr. Martin’s pension at source. As she loses her entitlement to the asset it should not be included in her NFP.

[174] Section 3(1) of the Public Service Superannuation Act, R.S.C. 1985, c. P-36 defines a survivor as a person who was married to a contributor at the time of the contributor’s death. Pursuant to s. 25 of the PBDR, a spouse or former spouse who has received a division of pension benefits at source ceases to be entitled to any pension to which she would have been entitled as a surviving spouse.

[175] Amongst the relief Ms. Martin is seeking in this application is a divorce. She is entitled to that relief and I order that a divorce issue upon the required documentation being filed. I have also ordered a division of Mr. Martin’s pension at source. As a result of these orders, Ms. Martin loses her entitlement to and any interest in a survivor pension. The value of same shall not be included in her NFP.

Spousal Support

The Divorce Act, R.S.C. 1985, c. 3, provides as follows:

15.2 SPOUSAL SUPPORT ORDER— (1) 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 sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(3) TERMS AND CONDITIONS— The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) FACTORS— In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

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.

(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER— An order made 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.

[176] Mr. Martin, quite properly, has not suggested that Ms. Martin is not entitled to spousal support. This was a 32 year traditional marriage in which Mr. Martin was primarily responsible for family finances, including the family income, and in which Ms. Martin was primarily responsible for all other family needs, including raising two children, all homemaking chores, including purchasing groceries and other household items needed for a family of four.

[177] Ms. Martin is 56 years old, has a Grade 11 education and no marketable skills. Her most recent employment was 11 years ago, part time and casual, in the retail sector. She has been out of the workforce since that time as a result of a serious physical injury. She was completely financially dependent on Mr. Martin at the time of separation and remains so. She has not earned any income since 2007.

[178] Ms. Martin has suffered, and continues to suffer, economic disadvantages arising from the marriage and economic hardship as a result of the breakdown of the marriage. She is in need of spousal support and Mr. Martin has the ability to pay spousal support.

[179] The issues to be determined in relation to spousal support are the determination of Mr. Martin’s income and whether income should be imputed to him, whether any income should be imputed to Ms. Martin and the quantum of spousal support to be paid by Mr. Martin to Ms. Martin after those issues have been decided.

[180] I reject the suggestion that income should be imputed to Ms. Martin. Given her circumstances as outlined above, I find that it is neither practicable nor reasonable to suggest that Ms. Martin has any current ability to contribute to a reasonable standard of living for herself. This was a long term traditional marriage which created a very comfortable standard of living for the parties that Ms. Martin has no realistic ability to replicate. Given her current circumstances, including age, physical ability, education and lack of job skills, self-sufficiency is not an objective that should be given priority in the spousal support analysis.

[181] A different situation will obviously exist subsequent to Ms. Martin’s receipt of an equalization payment, a component of which will be a lump sum payment from Mr. Martin’s pension. Ms. Martin acknowledged that she would be under an obligation to account for a reasonable return on all funds in her control in determining her income for spousal support purposes. She is prepared to accept approximately $19,000 per year as a reasonable estimate of her income after pension division. I accept this submission.

[182] Mr. Martin is the sole shareholder and controlling mind of the company. This company was able to generate income prior to separation. It is an agreed fact that Mr. Martin’s employment income from the company was $10,000 in 2013, $15,000 in 2014 and $10,000 in 2015. Between 2013 and 2015, income from the company attributed to Ms. Martin averaged $11,667 per year.

[183] According to Mr. Martin, the company is not as active now as it was in previous years, either because of his declining health, his choice to direct company work to subcontractors, his choice to simply not pursue available work or a combination of all of these factors.

[184] The only objective evidence received by the court as to this company is the January 19, 2018, letter from MNP listing the company’s assets, liabilities and equity as of the valuation date. Attached to this letter is a February 7, 2018, appraisal report listing and valuing the assets of the company at fair market value. The MNP letter confirms the company was still active on the valuation date. There was a general ledger bank balance of approximately $51,500 and a bonus payable of $15,000. The property and equipment appraised had a fair market value at the time of $35,769 and included three plough trucks with valuable snow ploughs.

[185] In my opinion, Mr. Martin’s company has the equipment and ability to continue to generate revenue and income for him. I accept that he is 58 years old and has his own health challenges which limit his ability to maximize the income the company could otherwise generate. On the other hand, he is now retired. He will be able to devote more time to work the company has traditionally done. I note that he has chosen not to sell company assets or wind the company down subsequent to separation. In my opinion, Mr. Martin has an obligation to make reasonable efforts to generate income from the company’s assets.

[186] Given the income from this company historically attributed to Mr. and Ms. Martin and Mr. Martin’s candid admission that he “takes advantage of the company” financially, I find that it is reasonable to attribute to Mr. Martin an annual income of $10,000 from the company both before and after the division of his pension.

[187] For the foregoing reasons, I find the parties’ incomes for spousal support purposes from the date of judgment to the date of pension division to be:

Ms. Martin $0

Mr. Martin $38,032 (2018 pension income)

$10,000 (imputed income from the company)

Total $48,032

[188] I find the parties’ incomes for spousal support purposes from the date of pension division and following to be:

Ms. Martin $19,000 (imputed return on assets)

Mr. Martin $19,016 (2018 pension income less 50%)

$10,000 (imputed income from the company)

Total $29,016

[189] Inputting these income figures generates the following SSAG spousal support ranges:

1. Before pension division - $1,501 - $1,751 - $1,873;

2. After pension division - $313 - $365 - $386.

[190] I accept the submission of Ms. Martin that her claim for spousal support is primarily compensatory, entitling her to spousal support at the upper end of the SSAG ranges.

[191] I order that Mr. Martin pay to Ms. Martin spousal support in the amount of $1,800 per month from the date of this judgment until she receives the amount to be transferred to her from Mr. Martin’s pension. Starting the 1st of the month after the pension division is completed and continuing on the 1st of each month thereafter, I order that Mr. Martin pay to Ms. Martin spousal support in the amount of $375 per month.

[192] Receipt of CPP disability benefits by Ms. Martin shall be a material change in circumstances.

[193] For as long as he has a spousal support obligation to Ms. Martin, Mr. Martin shall irrevocably designate Ms. Martin as the beneficiary of the supplemental death benefit arising from Mr. Martin’s past employment. He shall also maintain Ms. Martin as an irrevocable beneficiary of his extended health care benefits for as long as she is eligible.

Miscellaneous Equalization Issues

Elio Martin Services Corporation

[194] Mr. Martin is the sole owner of the company and must account for the value of the company on the valuation date. The evidence as to the value of the company on the valuation date consists of a letter from MNP, the company’s accountants, setting out the value of the company’s assets (property and equipment shown at book value) and liabilities as of the valuation date (including a bonus payable of $15,000) and an appraisal report estimating the fair market value of the company’s property and equipment as of the valuation date.

[195] In my opinion, the appraised fair market value of the company’s property and equipment should be substituted for the book value in valuing the company’s assets. This results in the total assets being $87,384 as of the valuation date. Subtracting total liabilities, including the $15,000 bonus payable, from this figure results in the company’s equity as of the valuation date being $27,690. I find this to be the value of the company on the valuation date. This figure shall be included in Mr. Martin’s NFP.

[196] I reject the submission that this value should be reduced by $5,000 to reflect notional disposition costs.

[197] I accept the submission of Ms. Martin that the $15,000 bonus payable should, if included as a company liability on the valuation date, also be accounted for as an asset of Mr. Martin on the valuation date. The $15,000 bonus payable to Mr. Martin shall be included in Mr. Martin’s NFP.

[198] I reject the submission that Mr. Martin Sr. gifted the company to Mr. Martin such that the value of the company should be excluded from Mr. Martin’s NFP pursuant to s. 4(2) of the Family Law Act.

[199] Mr. Martin worked for the company for years prior to the shares being transferred to him. He was not paid for his work while other employees were paid for similar employment. The evidence establishes, in my opinion, that he provided these services to the company on the understanding that the company would, in due course, be transferred to him in return for past services. I find that it was his father’s intention to transfer the company to Mr. Martin in consideration of services Mr. Martin had provided to the company over the previous years without pay. The evidence of Mr. Martin and Mr. Martin Sr. to the contrary is self-serving. It is also inconsistent with the evidence given by Mr. Martin during questioning.

Family Memorials Inc.

[200] Mr. Martin owned shares in Family Memorials Inc. worth $11,000 on the valuation date. Mr. Martin alleges that he sold one-half of these shares to Robert Hemsworth shortly after he acquired them, such that he held one-half of these shares in trust for Mr. Hemsworth on the valuation date. This position is corroborated by the evidence of Susan Hemsworth who was obviously a reluctant witness. Ms. Martin was unable to say otherwise. She simply stated that she was unaware of Mr. Hemsworth being involved.

[201] I am persuaded, on a balance of probabilities, that Mr. Martin held one-half of the 200,000 shares in Family Memorials Inc. in trust for Robert Hemsworth. Mr. Martin shall account for a value of $5,500 for his one-half of these shares in his NFP.

Alleged Valuation Date Debts

[202] Ms. Martin claims debts of $2,000 (Sears) and $5,000 (Darlene Metzger) in the calculation of her NFP.

[203] The evidence as to the balance of any debt owing to Ms. Metzger as of the valuation date is vague and confusing. There is no accounting provided in arriving at the alleged $5,000 valuation date balance. There is no evidence from Ms. Metzger as to the fact of the debt or its balance on the valuation date. The onus is on Ms. Martin to prove on a balance of probabilities the existence of the debt and its balance on the valuation date. She has failed to do so and is therefore not entitled to this deduction.

[204] Ms. Martin has also testified that the balance of her Sears account was $2,000 on the valuation date. In support of this she has provided an August 18, 2013, Sears Mastercard statement showing a balance due of $2,917 and a February 24, 2017, letter from Scotiabank in regard to this same account acknowledging receipt of a $2,000 payment on February 18, 2017, as “final and complete payment” of the account.

[205] Pursuant to this evidence, I am persuaded that Ms. Martin did have a $2,000 debt owing to Sears on the valuation date. This date shall be included in the calculation of her NFP.

[206] Mr. Martin testified that he owed Mr. Hemsworth two amounts as of the valuation date; $9,500 lent to him by Mr. Hemsworth for Mr. Martin’s purchase of the Family Memorials Inc. shares and $35,000 lent to him and Ms. Martin for the purchase of the Batwing Lake camp. Ms. Hemsworth testified as to the existence of both debts. The letter the Hemsworths wrote to their son Paul prior to their trip to Mexico provides further corroboration of the debts. Ms. Martin essentially testified that she was not aware of either debt.

[207] There is no loan agreement for either debt. There is no evidence as to terms of repayment. There has been no demand for repayment made and there have been no payments made by Mr. Martin toward either debt. The payments made to Ms. Hemsworth by Mr. Martin’s sister on the eve of trial are, in my opinion, irrelevant. It is not disputed that enforcement of the debts is now statute barred such that Mr. Martin has no legal obligation to honour them.

[208] In my opinion, there is no reasonable likelihood that either of these debts will ever be repaid by Mr. Martin. Given this finding, Mr. Martin is not entitled to a deduction for either of these debts in the calculation of his NFP.

[209] Mr. Martin alleges that he owed his parents $60,000 on the valuation date because they advanced this sum to him to enable him to purchase the vacant lot at 1695 Highland Court in 1991. Ms. Martin disputes this debt, alleging that the lot was purchased with the sale proceeds of 220 Southern Ave. Mr. Martin Sr. testified that the $60,000 was advanced to Mr. Martin for this purchase and remains outstanding.

[210] Once again, there is no loan agreement, written or verbal, as to this debt. There is no evidence as to any agreed upon terms as to interest or repayment. Nothing has ever been paid on it. No demand for payment has ever been made. The evidence is consistent that, if it was advanced as alleged, it was required to be repaid only if and when it was needed by Mr. Martin’s parents and that it would be forgiven on the death of Mr. Martin’s last surviving parent.

[211] Mr. Martin’s evidence about the purchase of 1695 Highland Court was confusing and inconsistent with the land titles records filed in evidence. Mr. Martin testified that the property was purchased for $65,000, yet the PIN sheet records the transfer amount as $49,000, as does the Land Transfer affidavit signed by Mr. Martin.

[212] When confronted with the date of the sale of 220 Southern Ave. (April 30, 1991) in relation to the date of purchase of 1695 Highland Court (July 10, 1991) and the suggestion that the equity from the former was available for the purchase of the latter, Mr. Martin testified that he paid the total purchase price for 1695 Highland Court prior to the sale of 220 Southern Ave and prior to the transfer of title and registration of 1695 Highland Court. This was in an attempt to establish that the equity from the sale of 220 Southern Ave. was not available to apply to the purchase of 1695 Highland Court, such that he needed the $60,000 from his father.

[213] I do not accept this evidence, unsupported as it is by any corroborating documents.

[214] The home at 220 Southern Ave. was sold by the parties for $111,000 on April 30, 1991, and the Highland Court lot was purchased on June 10, 1991, confirming that the equity from the sale of 220 Southern Ave (which the parties agreed was approximately $68,000), was available to apply to the purchase of the Highland Court lot, consistent with Ms. Martin’s evidence.

[215] I am not persuaded, on a balance of probabilities, that Mr. Martin did in fact receive $60,000 from his parents to enable him to purchase the Highland Court lot. If I am incorrect in this finding, I find nonetheless that Mr. Martin is not entitled to include this $60,000 as a debt owing on the valuation date. The money, if advanced, was advanced 27 years ago. No payment has been demanded or made. I find that there is no reasonable likelihood that this advance will ever be repaid such that Mr. Martin will be out-of pocket for this amount. It shall not be included in the calculation of Mr. Martin’s NFP.

[216] Mr. Martin owned 220 Southern Ave. on the date of marriage. It is not in dispute that it had a value of $60,000 and was subject to a mortgage in the amount of $35,000 on the date of marriage. Ms. Martin alleges that Mr. Martin borrowed $25,000 from his parents to buy this house and that this amount, together with the $35,000 mortgage balance, was owed by Mr. Martin on the date of marriage. Mr. Martin and Mr. Martin Sr. dispute the existence of the $25,000 debt.

[217] Mr. Martin testified that he had saved the $25,000 that he applied to this purchase. Mr. Martin Sr. testified emphatically that he did not lend his son $25,000 for this purchase and that he and his wife were repaid nothing by Ms. Martin and Mr. Martin from their cash wedding gifts, as alleged by Ms. Martin.

[218] Mr. Martin bears the onus of establishing the net value of property owned by him on the date of marriage. I am persuaded, on a balance of probabilities, that Mr. Martin did not borrow $25,000 from his parents for the purchase of 220 Southern Ave. and that he did not therefore have such a debt on the date of marriage.

[219] Inputting the above findings, together with all other values agreed upon between the parties, results in an equalization payment owing by Mr. Martin to Ms. Martin in the amount of $403,421.14 (see Net Equalization Payment Calculation attached to and forming part of this judgment).

[220] I decline to award pre-judgment interest on the equalization payment owing by Mr. Martin, given that his employment pension accounts for approximately 70% of his NFP. Mr. Martin has been paying spousal support to Ms. Martin from his pension income in the amount of $2,000 per month prior to judgment and he will be paying spousal support to Ms. Martin from his pension income as set out above from the date of judgment to the date of pension division. In my opinion, it is not appropriate to award pre-judgment interest in these circumstances.

Unconscionability

[221] I reject the submission of Mr. Martin that there should be an unequal division of the parties’ NFP’s on the basis that equalizing the NFP’s would be unconscionable.

[222] Mr. Martin suggests that Ms. Martin’s pre-separation spending resulted in the reckless accumulation of debt as of the valuation debt. Ms. Martin acknowledges accumulating significant debt in the years prior to separation. However, she submits that she alone was responsible for purchasing all household items for herself, Mr. Martin and their two children throughout their marriage. She further submits that the accumulation of debt occurred over the entire course of this marriage due to the spending habits of both her and Mr. Martin.

[223] As noted by the Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 105, at para. 47, “the threshold of unconscionability…is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”. At para. 48, the court noted that “unconscionability” is a much more difficult test to meet than unfairness and as a result, the courts have only minimal discretion to order anything other than an unequal division of family property. The court stated that unconscionable conduct has been defined as conduct that is “harsh and shocking to the conscience, repugnant to anyone’s sense of justice, or shocking to the conscience of the court”.

[224] It is apparent from reviewing the parties’ financial statements and hearing the evidence as to their respective lifestyles that these parties lived beyond their means throughout this lengthy marriage. I agree with the submission of Ms. Martin that Mr. Martin’s displeasure about Ms. Martin’s spending habits, within the context of their entire financial relationship, does not shock the conscience of the court.

Miscellaneous Issues

[225] Pursuant to my Temporary Order of December 14, 2016, made at the Case conference, Mr. Martin was ordered to have his employment pension valued. He has never done so. Ms. Martin was required to do so and paid $960.50 for the valuation.

[226] Mr. Martin is ordered to pay to Ms. Martin $960.50 for this valuation.

[227] Pursuant to the Temporary Order of Shaw J. dated January 26, 2017, Mr. Martin was required to pay for any deductible or other health care expenses not covered by his employment benefit coverage. Ms. Martin has incurred $470 in miscellaneous out of pocket health care expenses which Mr. Martin has declined to repay.

[228] Mr. Martin is ordered to pay to Ms. Martin $470 for these expenses.

[229] Pursuant to the Temporary Order of Newton J. dated December 22, 2016, it was ordered that the “respondent consents to make any necessary repairs and maintenance (including winter tires) to make the vehicle roadworthy immediately”. Ms. Martin took her vehicle to a repair shop on December 30, 2016, and had repairs done consistent with those required to pass a MOT inspection. This obviously falls within “necessary repairs and maintenance to make the vehicle roadworthy”. As such, I find that Mr. Martin is responsible for the cost of these repairs. He has paid $861.66 on this account. He is ordered to pay to Ms. Martin the remaining balance, being $861.66. Ms. Martin shall be responsible for paying the balance of this invoice upon receipt of the funds from Mr. Martin.

[230] On consent, Mr. Martin shall transfer to Ms. Martin the 2008 Chevrolet Malibu and Ms. Martin shall transfer to Mr. Martin the 2011 Ford truck.

Summary

[231] A Final Order shall issue incorporating the findings and terms set out in this judgment. For greater clarity, the equalization payment in the amount of $403,421.14 shall be paid by Mr. Martin to Ms. Martin as follows:

1. Mr. Martin shall hold in trust for the benefit of Ms. Martin the maximum transferable amount of his pension (Public Works and Government Services Canada Pension # 001084998) until that amount is transferred to Ms. Martin;

2. Mr. Martin shall forthwith transfer to Ms. Martin the maximum transferable amount of his pension in accordance with the provisions of the PBDA and PBDR;

3. The $10,000 held in trust by Weiler, Maloney, Nelson shall be paid to Ms. Martin;

4. Mr. Martin shall rollover to Ms. Martin his CIBC RRSP #598-29440 in the amount of $67,681.

[232] The maximum transferable amount which Mr. Martin is required to transfer to Ms. Martin cannot be ascertained until the date of transfer. Upon the determination of the maximum transferable amount transferred from Mr. Martin’s pension to or for the benefit of Ms. Martin, that amount plus the amounts set out in paragraph 231 (3) and (4) above shall be reconciled against the required equalization payment of $403,421.14. Mr. Martin shall forthwith pay to Ms. Martin the difference owing on the equalization payment.

[233] The Batwing Lake camp shall serve as security for the payment of the equalization payment owing to Ms. Martin until further order of the court or agreement of the parties. Mr. Martin shall not sell, dispose of or otherwise encumber this property in the interim.

[234] The parties may seek direction from me at any time if they are unable to agree on the terms of a Final Order resulting from this judgment.

[235] If the parties are unable to agree on the costs of this trial, they shall file written submissions as to costs, not to exceed 5 pages, exclusive of their respective Bills of Costs. The applicant’s costs submissions shall be filed within 21 days of the release of this judgment; the respondent’s within 7 days thereafter. If costs submissions have not been filed within this time frame, costs shall be deemed to be settled.

Justice J. S. Fregeau

Date: November 15, 2018

MARTIN v. MARTIN

NET EQUALIZATION PAYMENT CALCULATION

Value of assets owned on valuation date

ITEM

APPLICANT

RESPONDENT

Real Property

Matrimonial Home (50%)

197,500.00

197,500.00

Camp Batwing Lake

105,000.00

General Household Items and Vehicles

2011 Ford Truck

8,000.00

1999 Chevrolet Truck

750.00

2008 Chevrolet Malibu

7,000.00

Bank Accounts, Securities and Pensions

RRSP CIBC ($114,201.70 – 10%) 29443

102,781.53

Chequing CIBC 55597

1,386.67

Chequing TD Canada Trust

445.71

Chequing Joint CIBC 29333

5.59

5.59

Chequing CIBC 93494

10,452.85

Investment CIBC – Family Memorials

5,500.00

RRSP CIBC ($67,680.99 – 10%)

60,612.89

With R. Hemsworth CIBC

62.14

Pension Canadian Grain Commission

($756,836 less 10%)

681,152.40

Life and Disability Insurance

London Life – Rick Martin

15,865.13

Business Interests

Elio Martin Service Corporation

27,690.00

Elio Martin Service Corporation Bonus Payable

15000.00

Money Owed to You

Owed by Elio Martin Service Corporation

6,422.00

VALUE OF PROPERTY OWNED ON THE VALUATION DATE TOTAL

308,673.79

1,134,458.71

Value of debts and liabilities on valuation date

ITEM

APPLICANT

RESPONDENT

Credit Card Capital One/Hudsons Bay

8,585.54

Credit Card Sears

2,000.00

Credit Card TD Visa

(26.89)

Line of Credit CIBC 15-93536 (joint)

62,289.26

62,289.26

Line of Credit CIBC 18-51438 (joint)

19,563.96

19,563.96

Line of Credit Camp

4,132.74

Credit Card Visa

368.55

TOTAL

92,411.87

86,354.51

Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)

PROPERTY ITEM

APPLICANT

RESPONDENT

Land – 220 Southern Avenue Thunder Bay, Ontario

60,000.00

TOTAL OF PROPERTY ITEMS

60,000.00

DEBT ITEM

Mortgage – 220 Southern Avenue Thunder Bay, Ontario

35,000.00

TOTAL OF DEBT ITEMS

NET TOTAL

25,000.00

Ms. Martin: NFP

$ 216,261.92

Mr. Martin: NFP

$1,023,104.20

Net Equalization Payment Owing From

Mr. Martin to Ms. Martin is

$ 403,421.14

Justice J. Fregeau

COURT FILE NO.: FS-16-0247

DATE: 2018-11-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Donna Lee Doris Martin

Applicant

• and –

Rick John Martin

Respondent

REASONS FOR JUDGMENT

Fregeau, J.

Released: November 15, 2018

/sf