Court File and Parties
Newmarket Court File No.: FC-16-50874-00 Date: 2018-11-14 Superior Court of Justice - Ontario
Re: Alla Levin, Applicant And: Nikolay Levin, Respondent
Before: The Honourable Madam Justice M. E. Vallee
Counsel: Sam Zaslavsky, Counsel for the Applicant Matthew J. Armstrong, Counsel for the Respondent
Heard: May 22, 23, 24, 25, 28, 29, 30 and 31, 2018
Endorsement
Introduction
1Alla and Nicolay Levin were married in 1990 in Ukraine. In 1991, they immigrated to Israel. Twenty-two years later, they immigrated to Canada. There are two children of the marriages; Nikol, who is an adult, and Michelle, who was born in 2008. The parties separated on January 22, 2016, after almost 26 years of marriage. Ms. Levin, was 49 years old on the date of separation. Mr. Levin, was 50. Ms. Levin is now 51. Mr. Levin is 52.
2The parties are well educated. Ms. Levin has a master’s degree in nursing. Mr. Levin has a degree in software engineering. He is an electrician. Their first language is Russian. They both testified in English. Ms. Levin had an interpreter to assist her if she needed help with a word or phrase. Both parties speak and read English reasonably well.
Issues to be Determined
A. Is Ms. Levin entitled to spousal support?
B. Is Ms. Levin’s return to university feasible?
C. What amount of child and spousal support should be paid?
D. What amount should Mr. Levin pay for s. 7 expenses?
E. Does this court have jurisdiction to make an order regarding land in Ukraine?
F. What amount should be paid to equalize the parties’ net family property?
G. What amounts should be paid for post-separation adjustments?
H. What other orders should be made?
Assessment of Witnesses – Credibility and Reliability
3The trial judge can assess credibility by considering different factors. In Dunford v. Hamel, 2018 ONSC 3427, at para. 20, Jarvis J. cited Baker-Warren v. Denault, 2009 NSSC 59, in making the following observations, which I adopt on the issue of credibility assessments of witnesses at trial:
In Baker-Warren v. Denault, Forgeron J. provided a useful checklist of credibility assessment factors. These 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 candor from evasive or strategic testimony) and, to a lesser degree, witness demeanor. This list is not exhaustive. Assessing credibility is, in every respect, a holistic undertaking incapable of precise formulation.
Ms. Levin
4As a party to the proceedings, Ms. Levin implicitly had a natural bias, whether conscious or not, in favour of her own position on the issues.
5Ms. Levin stated that since September 2017, she had not applied for any registered practical nurses’ jobs because she did not have time. She stated that she did not have a day off. This evidence is internally inconsistent. Ms. Levin stated that she worked 15 hours a day from Saturday to Tuesday inclusive. She did not work on Wednesday, Thursday or Friday.
6Ms. Levin stated that in 2017, for more than half the year, she worked 100 hours per week. Nikol was living with her and helped to look after Michelle. This testimony was internally inconsistent with her other evidence. She was asked to assume that she would earn $20 per hour. If she worked 100 hours for 26 weeks, the result would be that she would have earned $52,000 for half of the year when she actually earned $54,934.57 for the whole year. She then admitted that she worked 110 hours per week for one pay period comprised of two weeks.
7Ms. Levin testified that Mr. Levin holds title to three parcels of land in Ukraine. She denied that he was holding this land in trust for Nikol. She stated that there is no trust document. The relevant documents show only that the parcels are his land. This evidence is externally inconsistent. In paragraph 30 of her application, Ms. Levin states that Mr. Levin is holding the land in trust for Nikol.
8Ms. Levin stated that Michelle has a learning disability. She helps Michelle, who is a young, elementary school-aged child, with school work for four or five hours each day. This is likely an exaggeration, given Michelle’s age.
9Otherwise, Ms. Levin’s testimony was generally consistent and credible.
Mr. Levin
10As a party to the proceeding, Mr. Levin implicitly had a natural bias, whether conscious or not, in favour of his own position on the issues.
11When testifying, Mr. Levin gave numerous inconsistent answers to questions. His responses to difficult questions were evasive. His view was that, in the last five years, since the parties moved to Canada, Ms. Levin has had plenty of opportunity to become self-supporting. He stated that Ms. Levin is entitled to no spousal support whatsoever. He exhibited, through his tone of voice and expression, hostility toward Ms. Levin that indicated a strong bias against her.
12Mr. Levin denied that he was abusive toward Ms. Levin. This evidence was internally inconsistent with his later testimony and externally inconsistent with a criminal conviction certificate that showed his convictions for assault and forcible confinement of Ms. Levin. He stated that he did not agree with the document and did not know “what the document was talking about”. Mr. Levin agreed that, as a result of the convictions, the parties’ application to immigrate to Canada was rejected. He had to ask the Israeli government for clemency. In April 2006, a letter was written to the President of Israel requesting that his criminal record be expunged. Mr. Levin could not say who wrote the letter. He agreed that the convictions related to his threats, assaults upon and forcible confinement of Ms. Levin. Nevertheless, he denied that the contents of the letter were true. He stated that he was a gentleman and Ms. Levin was playing and having a panic attack. He then did agree that he was convicted in Israel in 1994 and that the issue was between him and Ms. Levin.
13Mr. Levin denied that he was also abusive when the parties lived in Ukraine. This evidence was externally inconsistent. A document from the Office of Forensic Medical Examination in Ukraine, dated March 10, 2000, is record of Ms. Levin’s injuries. It describes multiple bruises on her face and body, as well as a hemorrhage in her right eye. Mr. Levin denied that he was drunk and hit Ms. Levin in the head and face. He agreed that she did not report an incident. He stated that the record of her injuries was a fraud and that a person can obtain any papers in Ukraine for a price. Mr. Levin denied that he was under strict conditions in Israel because of his convictions and that if Ms. Levin reported him in Ukraine, he would have been arrested. He stated that there is no documentation that he ever physically assaulted Ms. Levin.
14Mr. Levin denied that the parties continued to have trouble. This evidence is externally inconsistent. Ms. Levin testified that she was thinking of leaving the marriage. Mr. Levin prepared a document entitled “Written Undertakings” dated 8/08/05. It contained his promise to adhere to Ms. Levin’s nine demands. She testified that she required these demands to be met in order to remain in the marriage. Each demand also shows a financial penalty. Mr. Levin admitted that he signed this document. The first paragraph of the document states, “I, Nikolay, Alla’s husband, hereby promise to fulfill the following demands of my wife.” Mr. Levin testified that he did not see any agreement in the document1. He denied that he promised items 1 to 3 (to not raise his voice at family members, to not raise a hand to family members and to not use words and phrases that may insult) because he was abusive. He denied that he signed the document because Ms. Levin had the whole burden of housekeeping, although demand 6 states, “to participate actively in the housekeeping”. He stated that the housekeeping was shared. When a suggestion was made that he would not have promised to help Ms. Levin if he was already doing it, he replied “It was a game.” He maintained that the document was not an agreement.
15Demand nine on the document states, “To exclude emotional and physical contacts with anyone except wife. Penalty – apartment in Ganey Aviv”. Mr. Levin denied that he continued to be unfaithful after making the promise. Mr. Levin stated that he did not make the promise. He stated, “I don’t know how to see this document. I was asking her to have a baby. She didn’t want to. Nikol was 12 years old. Alla asked me to show something that I would be an excellent husband in the future, to stay with her and have another baby.” He stated that for him it was just a game. She wanted an apartment. He stated that he loved her and was just asking for a second baby. She was playing with this document. He wrote it because he wanted an opportunity to have another baby. When a suggestion was made that his behaviour did not change but Ms. Levin did not get the apartment, Mr. Levin stated that it was not promised. “It was just a game between me and her.” She wanted some conditions from him to have a baby. It was not a contract. It was not a serious document.
16Mr. Levin agreed that in Israel, Michelle was diagnosed with a learning disability and a speech delay. Nevertheless, he maintained that Michelle did not require any tutoring in addition to what her parents could provide.
17Mr. Levin stated that he sacrificed his own career in order to stay home with Michelle. This evidence was internally inconsistent. He admitted that he was always able to work full-time.
18Mr. Levin stated that he worked three or four 12-hour shifts at Silfab Solar Inc., so that he had flexibility to look after Nikol and Michelle. He produced his 2014 work schedule. This evidence is externally inconsistent because Nikol was born in 1993 and was an adult by 2014. He also stated that he gave up this employment and incorporated a company, Westa Automation Limited, on September 22, 2016.2 He did this so that he could be self-employed and have more flexibility to be with the family. This evidence is internally inconsistent with his evidence that he already had job flexibility while he was an employee.
19A suggestion was made that Mr. Levin insisted that Ms. Levin go to work and make as much money as he did. He stated that he did not expect her to earn as much as he did but among their friends, the mothers and wives all worked and looked after the children. This indicates that he views childcare as Ms. Levin’s responsibility.
20Mr. Levin stated that he became increasingly anxious that the parties would not be able to pay their bills because Ms. Levin was not working. They had to rely on their savings. He told Ms. Levin numerous times that she had to work. It was not until the end of 2015 that she obtained her accreditation as a Registered Practical Nurse (RPN). This evidence is externally inconsistent. In the summer of 2015, the parties bought their second matrimonial home. It was bigger, more expensive, and had an apartment in the basement. He stated that they had $100,000 and decided to put it in something.
21Mr. Levin stated his income was higher in 2015 than in 2016 because he was working an unsustainable amount of overtime. He had to do this to meet the monthly expenses. This evidence is internally inconsistent. As noted above, the parties had $100,000 in 2015, and decided to put it into a new matrimonial home. Mr. Levin agreed that his last paystub for 2015 showed 35 hours of overtime. Assuming that he worked 48 weeks of the year, the overtime would have averaged only 1.4 hours a week. His paystub shows that he worked only 75 hours in two weeks. He stated that there was a holiday during this pay period. Mr. Levin then stated that he worked overtime not for the money but to show his employer his work ability. In addition, the plant where he worked was being upgraded, and employees were asked to work additional time. This evidence is externally and internally inconsistent because by 2015, Mr. Levin had already worked for that employer for two years. He gave these two contradictory reasons as to why he worked more overtime. The documents show that his overtime was not excessive.
22An incident occurred in the matrimonial home on January 22, 2016; the date of separation. Nikol called the police. The police wrote a report which stated that Mr. Levin loaded Ms. Levin’s clothes and jewellery into large garbage bags, put them in his car, and took them away. He stated that this was partly correct. This evidence is externally inconsistent. The police report states that Mr. Levin attended the police station after being requested to do so. He told the police he had the right to take the clothes because he had paid for them. Mr. Levin stated that this could be true. He did not remember. The police report states that, in an attempt to make a joint ownership claim to Ms. Levin’s clothing, Mr. Levin “made frivolous claims against his wife and made a statement that he sometimes wears his wife’s clothing and jewelry”. Mr. Levin stated that he must have been referring to only the jewellery. He has never worn Ms. Levin’s clothing. Despite initially stating that the police report was partly correct, he later stated that the contents of the report looked to be true.
23Mr. Levin denied that he sent messages to their friends and family to denigrate Ms. Levin. Mr. Levin stated that the purpose was not to denigrate but to explain what was going on. He said they might have an opportunity to explain to Ms. Levin and Nikol that the parties should sit down to solve the issues and not spend money on lawyers. This evidence is externally inconsistent. On July 31, 2016, Mr. Levin sent the following email:
These are the files Alla submitted against me in court. I have highlighted some interesting places. There is also my answer. Her goal is to prove I am a monster, to get custody of Michelle and to snatch all the marital property. And her dearest wish is to get lifelong tips from her ex-husband. And it’s all because I decided to leave her. She, however, thought that I threw both her and my children in the trash.
I am going to send this to all our joint friends who know me and my attitude to children. Unfortunately, Nikol is under her thumb. Maybe there will be someone who can knock some sense into this eternal student [Ms. Levin]. She spent 20 years studying, has two educations but can’t do a fucking thing except giving an enema and spoon-feed a patient. She made 13 thousand for three years in Canada while about 25 thousand has already been wasted on lawyers from our joint money and, by the way, the trial has not started yet. She was eager to ride me to her pension but nothing came out of it.
24Mr. Levin stated that he told Ms. Levin that she had to stop studying and start working. His view was that she should start to work, get some experience and then work toward becoming a Registered Nurse (RN). Mr. Levin denied that Ms. Levin has done exactly what he told her to do because she worked part-time at certain intervals. This evidence is internally inconsistent. Ms. Levin successfully completed the RPN program in January 2016. She worked part-time as an RPN, but then in the middle of 2017, took a job as a community service worker, which was full-time. She was accepted into the RN program at York University, which she is now attending. It began on May 21, 2018.
25Ms. Levin transferred her interest in their investment property to Mr. Levin on October 26, 2016. Each of them obtained an appraisal. His appraisal stated that the property was worth $610,000, while hers stated that it was worth $675,000. On July 20, 2017, they came to an agreement on the value of the investment property which was $642,000. Mr. Levin agreed that on May 30, 2017, approximately two months before they came to this agreement, he sold the investment property for $654,888. He did not disclose this to Ms. Levin. His reason was that he was unsure as to how it would reflect on the trial. He did not state on his financial statement sworn November 1, 2017, that the investment property was worth that amount, despite that the property was already sold to a 3rd party. Mr. Levin withheld information regarding the actual value received for the property to have a more advantageous bargaining position with Ms. Levin.
26On November 6, 2017, Mr. Levin swore another Net Family Property statement in which he declared the value of the property for disposition costs as $642,500; “as per agreement between parties on July 25, 2017”.
27Mr. Levin agreed that the first time he disclosed that he received $180,000 (some of the sale proceeds) on a financial statement was on his November 1, 2017 financial statement. The sale closed on August 30, 2017.
28Mr. Levin had a bank account with his mother in Israel. On October 26, 2015, the balance was 25,959 ILS as well as an investment portfolio of 15,427 ILS. This converted to approximately $15,000 in Canadian funds. Mr. Levin maintained that the money in the account was his mother’s and that she added him to the account for estate planning purposes. Mr. Levin agreed that on June 22, 2016, five months after separation, his mother transferred $11,988 to him. In January 2016, she transferred $2,988 to him. The total was most of the money in the account. Mr. Levin stated that these transfers were loans from his mother. This testimony is externally inconsistent. No documents were produced as evidence of the loans. On his financial statement dated July 14, 2017, he did not disclose the Israeli bank account, any loans from his mother, or any debt that he owed to his mother. Mr. Levin agreed that the first time he disclosed the alleged loans from his mother was on page 11 of his November 1, 2017 financial statement. It was prepared after he was questioned on October 20, 2017.
29Mr. Levin stated that he had made some repairs to the investment property before Ms. Levin transferred her interest in it to him. He stated that these repairs benefitted both of them. He wants to be reimbursed for half the amount. This is externally inconsistent. Mr. Levin agreed that he claimed the cost of the repairs as a deduction on his 2016 income tax return.
30Mr. Levin maintained that the family owed a debt to the National Insurance Institute in Israel3. This evidence was internally inconsistent. Subsequently, Mr. Levin agreed that payments being made were similar to source deductions from employment income. Ms. Levin had her own account with the NII because she was working full-time. She was not a housewife, and therefore, did not qualify for an exemption. He agreed that before the parties left Israel, the debt was his. The parties were making separate payments to the NII.
31In 2016, Ms. Levin was driving a Nissan Sentra that Mr. Levin had leased. Mr. Levin stated that he returned the car in February 2017, because the payments were on his credit history. He had another vehicle. He stated that he was having trouble qualifying for a mortgage. This evidence is externally inconsistent because Ms. Levin transferred to him her interest in the investment property in October 2016. The car could not have affected his credit because he obtained the mortgage before he returned the car. Furthermore, Ms. Levin was making the payments on it.
32When the parties separated, there were two mortgages on the matrimonial home, and one on the investment property. The mortgages were being paid from the joint account. In February 2016, Mr. Levin withdrew money from the joint account in the same amount as the mortgage payments. He stated that he needed the money. He stated that he inquired at the bank branch whether a mortgage payment could be skipped. Bank staff said that it was possible. He stated that he did not know that this would result in a penalty. Then he stated that the branch had told him that there would be no penalty. He did not agree that Ms. Levin had incurred penalties because the payments on the mortgage on the matrimonial home were missed. This evidence is externally inconsistent. Bank documents show that Ms. Levin incurred penalties of $704.21 and $440.95 for the February 2016 skipped payments.
33Mr. Levin agreed that, to date, he had not paid any of the section 7 expenses set out in Justice Nelson’s order dated September 21, 2016. He stated that he and Ms. Levin had made an agreement that he would pay this amount after they solved all of their problems, although there was no evidence of this agreement. He did not agree that this deprived Michelle of the benefit of his support for section 7 expenses for two years post-separation. This evidence is externally inconsistent. He stated that he paid Ms. Levin about $2,000 per month, which is approximately the amount of spousal and child support ordered by Justice Nelson4. He testified that he understood he was paying for Michelle’s needs. He stated that $2,000 per month is enough for her.
34Mr. Levin agreed that he has a parenting schedule with alternating weekends. He has not exercised all of his access. He missed a weekend when he went on a vacation. He is planning to go on another vacation without Michelle. He stated that Ms. Levin could ask him to stay with Michelle and that he never declined. This evidence is internally inconsistent because Mr. Levin stated that he had refused to look after Michelle. On December 12, 2016, Ms. Levin sent him a message asking him to pick up Michelle and stay from 6 p.m. to 9 p.m. He responded and said: “but she has a nanny”. Ms. Levin sent him a text stating that she needed his help on December 26 and 27th, and he responded, “First go to your shit fucking friends”.
35Mr. Levin stated that Ms. Levin had incurred additional section 7 expenses without consulting him and had not provided receipts and proof of payment; however, he did not specify the particular expenses. This evidence is internally inconsistent. He agreed that Ms. Levin had sent him an email on March 10, 2017, requesting his consent for a babysitter and swimming lessons. Ms. Levin asked for payment of section 7 expenses and sent him 17 invoices and proof of the amounts paid. Mr. Levin agreed that in September 2017, Ms. Levin sent him another email with receipts attached for section 7 expenses. In October 2017, she sent him more receipts and stated that she had not received any help from him since December 2016. She sent him copies of cheques that she had given to providers. Mr. Levin agreed that this would constitute proof of payment.
36Mr. Levin stated that in 2016, he had decreased availability to work as a result of the litigation proceedings. This evidence is internally inconsistent. He agreed that there was only one court attendance in 2016 and one settlement meeting. Aside from those two days, he had the rest of the year to work.
37Mr. Levin maintained that prior to August 2017, when he moved in to Ms. Sandler’s house located at 73 Martina Crescent, in Vaughan, he lived at the investment property. His July 14, 2017 financial statement states that the investment property is his residence. This evidence is externally inconsistent. One week before Ms. Sandler purchased her property, Mr. Levin incorporated his company, Westa Automation Limited. He listed the corporation’s address as Ms. Sandler’s address. The corporation’s bank statements went to that address, as did his Costco and American Express credit card statements, his bank statements, and documents from the Children’s Aid Society. The real estate listing for the investment property states that there were three well-maintained fully occupied units. At his questioning on October 30, 2017, Mr. Levin agreed that he was living at 73 Martina Crescent in the fall of 2016. His financial statement signed January 21, 2017, states that he was living there.
38Mr. Levin stated that he did not work for cash. There were no cash deposits in any of his bank statements, or the corporate statement. This evidence is internally inconsistent. In a telephone conversation between the parties about support, in September 2016, Mr. Levin stated, “I am trying to make some cash off the books in order to pay you, fucking whore, to pay the lawyer. Once again, I don’t give a shit if it’s a maximum or minimum to pay you and also to support myself, you see? That’s why I [am] working for cash.”
39When I consider Mr. Levin’s answers in cross-examination, his demeanour, and the contradictions in his evidence in contrast to the documentary evidence, I conclude that he was not a credible or reliable witness. Where his evidence conflicts with Ms. Levin’s evidence, hers will be preferred.
A. Is Ms. Levin entitled to spousal support?
Applicable Legal Principles
40The court must apply section 15.2 of the Divorce Act with respect to spousal support. Subsections 15.2 (4), (5) and (6) provide:
(4) FACTORS - in making an order [for spousal support] 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 the support of either spouse.
(5) SPOUSAL MISCONDUCT - in making an order for [spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER - an order that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
41These provisions address three different types of entitlement to spousal support; compensatory, contractual, and non-compensatory, as set out by the Supreme Court in Bracklow v. Bracklow5.
42In Lazare v. Heitner6 paras. 27, 28, and 33, McGee J. described compensatory and non-compensatory (sometimes referred to as needs-based) support as follows:
[27] Spouses are presumed to begin their lives together as financial independents. Over the course of their relationship, one or both may shift to or alternate between independence, interdependence or dependence. If a spouse is financially dependent when the marriage ends, the Divorce Act requires that spouse to make reasonable efforts to return to independence, or when independence is no longer possible, the highest measure available.
[28] Non-compensatory support primarily addresses the financial need of a dependent, lower income earning a spouse by asking what amount within the means of the higher earning spouse, over what period of time, ought to be paid to support the journey towards financial independence. In the language of the Divorce Act, what amount, paid over what period of time will recognize the nature of the failed relationship, relieve result of economic hardship and promote self-sufficiency?
[33] A compensatory basis for spousal support can be found when the recipient has suffered economic loss or disadvantage as a result of a role adopted during marriage; or when the recipient has conferred a benefit on a payor without adequate compensation.
Positions of the Parties
Mr. Levin
43Mr. Levin states that spousal abuse cannot be considered with respect to entitlement to spousal support. It is only a factor with respect to self-sufficiency. Spousal abuse has not had any impact on Ms. Levin in this respect. She has proved that she has the ability to become self-sufficient. In 2017, she earned $55,000.
44Her true motivation is to receive indefinite support. Ms. Levin testified that she does not want to work full-time. At questioning, she stated that she wants to work no more than 30 hours per week. She stated that she is certain that she will become a registered nurse in three years and be self-sufficient; however, she will not agree to have spousal support terminate in three years.
45With respect to compensatory support, Mr. Levin relies on M.S. v. A.R.7, para. 228, in which the court quoted Firth v. Allerton8.
In Firth v. Allerton, 2013 ONSC 2960, where the husband testified that he was entitled to compensatory support because he assumed the role of a "stay at home dad". Broad J. found at paras. 45-47 that:
[i]n order for the marriage to have had a detrimental effect on the economic prospects of a party seeking a support order, there must have been an explicit or implicit agreement, understanding or arrangement that one party would sacrifice or set aside, in whole or in part, his or her career prospects, educational advancement or opportunities for economic self-sufficiency in order to permit the other to pursue hers or his
Given that the focus is on the effect of the marriage on impairing or improving each party's economic prospects, a deliberate individual choice by one party not to pursue or develop career opportunities, without the express or implied agreement or acquiescence of the other party, or even against the wishes of the other party, may not support a compensatory claim for support.
In that case, the Court found that the situation was far from one which the husband assumed the lion's share of childcare and household duties. While there was no entitlement based on the compensatory model, Broad J. ordered time-limited support for a three-and-a-half year period based on finding of need.
46Mr. Levin states that there was no agreement between Ms. Levin and him. He thought she was pursuing an RPN licence, so she could work. He wanted her to work. He did not want her to stay home or pursue further education.
47Although Ms. Levin states that she suffered economically from the marriage and its breakdown, she actually benefited. She obtained a university education and had numerous accomplishments. Her wages increased throughout the marriage. Every year she worked, she received a raise.
48Mr. Levin relies on Thompson v. Thompson9 at para. 190, and states that Ms. Levin has the burden of proof to establish on a balance of probabilities that she is entitled to spousal support. In Thompson, at para. 211, the court found that there was no evidence that the father made any sacrifices. He continued his employment with the same employer throughout the marriage. He did not forgo any opportunities for career advancement that became available to him for the benefit of the family, or to assist the applicant with the development or operation of a business that she opened with two other individuals. There was no evidence that the father had career aspirations that he decided to forgo because of family responsibilities. The court found that the father did not suffer any economic disadvantage as a result of the marriage.
49Mr. Levin testified that the parties shared household responsibilities. (Although Ms. Levin stated that Mr. Levin did nothing, she did concede that he did some things, such as perform repairs, and take the children to school; but only when she asked him to do so.) Aside from the parties’ testimony, there is no evidence of the domestic work carried out by each party.
50Mr. Levin maintained that Ms. Levin was working and going to school for most of the marriage so her claim that she was an at-home parent is not credible. She claimed that she was only working part time; however, her resume and immigration application show otherwise. She did indicate that she worked part-time for one job but not the others, so one should assume that they were full-time jobs.
51There is substantial evidence that RN credentials in Israel are equivalent to RPN credentials in Canada. Ms. Levin could have taken the Canadian RN exam known as the Objective Structured Clinical Assessment (OSCA). She stated that she did not write it because she knew that she would not pass. Part of the exam was actual patient care whereas in Israel, the RN exam was only a written exam. She passed the Canadian RPN exam because it was a written exam. Mr. Levin stated that Ms. Levin wanted to go back to school. This led to the breakdown of the marriage.
52Mr. Levin’s position is that equalization of assets is enough to provide support given Ms. Levin’s education, earning capacity, and lifestyle. He relies on Mason v. Mason10. Although there was a big disparity in the parties’ income, the wife had high-value assets resulting from the equalization. No support was ordered. Mr. Levin also relies on the decision of the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), 1992 S.C.J. No. 107, at para. 14, in which the court stated that equitable distribution can be achieved in a number of ways, including division of assets and property. In this case, each party was receiving $800,000.
53Mr. Levin states that the parties were married in Ukraine and had nothing. Now Ms. Levin has a one million-dollar property with rental income. The marriage has not been detrimental to her. Rather, she has made certain choices, the consequences of which have resulted in her current situation. There is no evidence that the parties moved to Canada just because Mr. Levin wanted to do this. It was a joint decision. Both parties had to take English classes. Ms. Levin did not try to write the RN exam when she could have. Mr. Levin took a lesser job in contrast to the employment that he had in Israel.
54With respect to needs-based entitlement, Mr. Levin relies on Costa v. Costa11. At paras. 25 - 28, the court stated:
Potential or notional income is that which the spouse could reasonably be expected to receive, if the spouse were to obtain employment or income from available sources, may be considered in assessing the needs, means and other circumstances of the party requesting support. A spouse must maximize his or her earning capacity. If there is a failure to do so, income may be imputed for the purpose of determining spousal support.
55In Costa, the court considered para. 53 of Fisher v. Fisher12, in which the court stated:
A determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during the marriage, the efficacy of any suggested steps to increase the parties means, the parties likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.
56Mr. Levin states that this court must consider Ms. Levin’s income and the income that she would reasonably have been expected to receive, had she been working full-time. She has an obligation to maximize her earning capacity. Ms. Levin’s returning to university to complete the RN program does not maximize her earning capacity because she will be unable to work full-time during this period.
57Mr. Levin states that it is not expedient from a cost-benefit perspective for Ms. Levin to give up her full-time employment to pursue further schooling.
58Mr. Levin states that this court should impute income to Ms. Levin. The most accurate reflection of her income is what she earned in 2017. For part of that year, Ms. Levin worked part-time at Bayshore as an RPN and earned $28 per hour. For the other part of the year, she worked as a community service worker (CSW) and earned $20 per hour. She stated that she took the CSW job because it was full-time with regular hours. There was no evidence that it was impossible for her to get a full-time RPN job at the higher wage. She has another source of income because she can rent out the apartment in the basement of the matrimonial home for $1,100 per month. If she was able to earn $55,000 in 2017, it is reasonable to assume that Ms. Levin could earn the same amount in 2018. Ms. Levin stated that she cannot work as much as she did in 2017, because in that year, Nikol was helping to look after Michelle. Mr. Levin states that there is no evidence that Nikol is unable to assist. Furthermore, he can assist with Michelle’s care when Ms. Levin is working.
59In reviewing the factors to consider when determining self-sufficiency, as set out in Fisher, Ms. Levin will benefit greatly from equalization. She has the matrimonial home which was valued at $900,000 in 2016. It is widely known that prices have gone up. It is difficult to say that she has a claim for needs-based support when she has a $1 million asset. It is not reasonable to assume that her earnings will increase when she begins to work as an RN. The cases that Ms. Levin relies upon with respect to retraining, involve parties who were younger and had longer to recoup the loss of not working while in school. She can earn substantial rental income.
60Ms. Levin has not provided any evidence that she will complete the program, pass the exam, and obtain full-time employment. She bears the burden of proof in this regard. The proof will be in her decision. If reasonable income is imputed to her and she continues with the RN university program, then one can assume that she really did want to go back to school.
61Ms. Levin could have tendered the graduation rate from the RN program, the pass rate on the RN exam, and the percentage of students that obtain jobs. There should be some evidence that RNs are more employable than RPN’s. This was not provided, so the court should assume that it does not exist.
62Ms. Levin has not applied for RPN jobs for over a year. She is currently working full-time. There is no evidence that she will quit her job. Although the University program began on the first day of this trial, she has not paid her tuition. She does not know the amount of the tuition and the deadline for payment. She has not yet applied for OSAP. This does not demonstrate a genuine intention to be in school. Ms. Levin only needs support so that she can be in school. She could drop out immediately and still have a support order. This court should not readily accept that Ms. Levin will follow through with the program. She dropped out of this same program in April 2016, because she needed support and she began working. It is not reasonable to say that because she was an RN in Israel she is entitled to be one in Ontario, when her RN experience in Israel is really the experience of an RPN in Canada. It is reasonable to say that she should be an RPN in Ontario.
63Even if the experience of an RN in Israel is equivalent to the experience of an RN in Ontario, the court should consider whether anything prevented Ms. Levin from obtaining her RN. It was her decision to spend more time at home. Both parties decided to move to Canada; both were disadvantaged by it. This is not a case in which a husband had to move for a better job and the wife’s career suffered. They both enjoyed the benefits and detriments of their decision to move to Canada.
64Ms. Levin has provided no evidence that her salary was higher in Israel than what she would earn as an RPN in Ontario. Ms. Levin was self-sufficient in 2017. She ought to be self-sufficient now. If support is ordered, it should terminate after she graduates from the 16-month RN program and has a reasonable opportunity to find a job.
65Mr. Levin obtained a document from the Registered Nurses’ Association of Ontario website entitled What Are Nurses Paid. It shows a range of earnings for an RN. A first-year nurse can expect to earn $28 per hour13.
66Mr. Levin stated that according to the Professional Nurses’ Association, Ms. Levin’s RN nursing experience has lapsed. She will have to complete 400 practice hours. There is no evidence that her earnings as an RN will increase. All of this is based on conjecture and hearsay. Given her age, this court should consider how many years Ms. Levin has left to work.
67Mr. Levin states that upon an analysis of Ms. Levin’s expenses, she can meet her needs and expenses with the income she earned in 2017, which was comprised of income from employment, rental of the basement apartment, and child support. Her yearly expenses are shown to be $83,000 which includes section 7 expenses. She could meet her expenses and make payments on a substantial mortgage. This will be an increasing benefit to her as the amount of equity in the matrimonial home increases.
68Mr. Levin states that the parties did not live a luxurious lifestyle. They took only a few international trips. They drove to various destinations in the United States for holidays. This is a lengthy marriage; however, the support obligation is mitigated by Ms. Levin’s working or being in school for the vast majority of the marriage. In Price v. Price14, the wife was considered to be self-sufficient on an income of $54,000 with equivalent net worth. In the case at bar, this will be addressed by equalization. In Price, the parties had a 13-year marriage and the court allowed a transitional period of six months.
69If the court is satisfied that Ms. Levin is entitled to spousal support, it should be time-limited, and income should be imputed to her of $54,000 together with the rental amount. If an award is made, the lower range is appropriate considering the totality of the circumstances and Ms. Levin’s imputed income. Because the RN program is 16 months, that should be the maximum amount of time for which spousal support should be paid. It should terminate automatically after 16 months.
Ms. Levin
70Prior to the marriage, Ms. Levin studied mechanical construction at the Ukrainian State Maritime University and worked part time. She stated that she had her own business which involved buying kitchen items and selling them in Poland and Russia. At that time, she spoke Russian and understood Ukrainian. After the marriage, she continued with the business until the parties immigrated to Israel in 1991. Ms. Levin stated that after the move, she studied Hebrew. Once she finished the first level, she had a part-time job working as a cleaner, two or three times a week. She stated that her Hebrew was not very good. When it improved she got a job in a grocery store where she worked three or four shifts a week. She did not work very many hours because the parties had only one car. They lived in a city where there was only bus transportation. She focused on improving her language skills. In 1993, the parties’ eldest daughter Nikol was born. Ms. Levin stated that she remained at home to take care of the house and the child. She looked after all the home duties. Mr. Levin did not contribute.
71Ms. Levin stated that she stayed home with Nikol for three years. The parties decided to return to Ukraine in 1999, to finish their studies. She obtained a degree in computer science and software engineering. The parties returned to Israel permanently in 2001.
72Ms. Levin stated that Mr. Levin did not work for a nine-month period. The parties lived on their savings. She still had the primary responsibility for childcare, but Mr. Levin helped more because he was not working. He sometimes brought groceries. He rarely cooked and never cleaned. Sometimes he would shop for clothes, but Ms. Levin stated that she did most of it. He has handyman skills and did some house repairs.
73Ms. Levin stated that when she was working a morning shift, Mr. Levin, Nikol, or her friends, would take Michelle to school. Ms. Levin usually picked up Michelle. Mr. Levin did teach Michelle how to ride a bike and took both children camping and skiing.
74Ms. Levin stated that she tried to find a job in her area of study, but it was difficult. She was accepted into a registered nursing program and studied part time between 2002 and 2004. It was a two-year program for people with higher education. She stated that she tried to work part-time, but it was difficult to study, look after the home, and Nikol. In 2004, she graduated from the RN program.
75From May 2004 to August 2004, Ms. Levin worked part-time at the Assaf Harofeh Medical Center. From August 2004 to January 2005, she worked part time at the Re’Uth Medical Center. She could not recall how many hours she worked. From February 2005 until November 2005, she worked three or four eight-hour shifts at the Medical Center for Chronic Disease.
76From December 2005 to September 2006, Ms. Levin worked similar hours at the Chaim Sheba Medical Center. In 2007, she returned to the Re’Uth Medical Center, where she worked until 2009. In 2008, during this time, Michelle was born. Ms. Levin stated that she took vacation time and some unpaid time to stay home with Michelle.
77Ms. Levin stated that at one point, when the parties were living in Israel, she told Mr. Levin that she wanted a divorce. He was not contributing to the household. He was just living for his own fun. He begged her to stay. She agreed to stay only on certain conditions. They are listed in a document that Mr. Levin wrote and signed. He promised to do, and not to do, certain things.
78Ms. Levin stated that Michelle has a language delay. When the parties lived in Israel, she was in a special kindergarten where she had her own teacher. Ms. Levin stated that she always helped Michelle with her homework, every day for five hours a day, from after school at 3 p.m. until 7 or 8 p.m. Mr. Levin worked a 16-hour double shift 3 to 4 times per week. He also worked as a handyman for which he was paid in cash. He had two jobs.
79From October 2009, until 2011, Ms. Levin was working part-time at Re’Uth Medical Center and studying for a master’s degree in nursing, which she obtained. Ms. Levin stated that from 2011 to 2013 she worked part-time, and was responsible for all of the housework, as well as the childcare. Sometimes, Mr. Levin would take Michelle to school and pick her up, but his availability depended upon his work schedule.
80Ms. Levin agreed that after the marriage, and until she completed the application to immigrate to Canada, she spent 10 ½ years pursuing education. Before she came to Canada, her English comprehension was good enough for university. She could understand written English, but she could not speak it very well.
81Ms. Levin stated that she and Mr. Levin decided to move to Canada when Michelle was born. They applied three or four times and were finally accepted. She wanted to work as a registered nurse in Canada. She had to do a licensing exam for which she prepared when she was still in Israel. She started the application process, but the Ontario College of Nurses wanted additional information. The College was reviewing her documents to determine whether she had met the nursing educational requirements to write the Canadian Registered Nurse Exam. It accepted some of her documents. Based on the experience of some of her friends, Ms. Levin thought she would have her Ontario RN licence in six months. Despite this, she received a letter dated January 25, 2013, stating that the rules had changed, and now she would need to either complete the OSCA and a written exam, or complete a university nursing degree program. She would also have to pass an English test at a high level.
82At the same time that she applied for her RN licence, Ms. Levin also applied for an RPN licence. She thought she would obtain that certification earlier and did not want to lose time waiting for her RN license.
83The parties moved to Canada in March 2013. Between March 2013 and 2014, Ms. Levin took a course to improve her English. This took longer than she expected. She was also at home preparing to write the RPN licence exam.
84Ms. Levin stated that in 2015, she started working as a personal support worker (PSW) because she needed to have a job. She continued to study English for one year. She stated that she did not attempt the OSCA exam because she heard it was “next to impossible”. It was like an exam for doctors. There was no course preparation for it. Some of her friends had taken the exam. None of them passed it. The exam required clinical experience in various fields. It included looking after a patient. She believed that she would not have the knowledge to pass this exam because she had worked at a rehabilitation hospital in Israel.
85Ms. Levin stated that she was accepted to the York University RN degree program and started it in January 2016. She also obtained her RPN certification on January 8, 2016.
86The parties separated on January 22, 2016.
87Ms. Levin testified that by the end of April 2016, she could not continue at York. She stated that Mr. Levin had left her with two properties to manage. Previously he had looked after the investment property. He would not pay for anything. He refused to pay for repairs. He did not pay her any support. He helped only rarely with Michelle, approximately once a week, for just a few hours. She found all of this very upsetting which caused her to become depressed. She could not be a mother, a full-time student, and manage the properties. She suffered from anxiety. She went to see her doctor who advised her to stop studying and continue later on when she felt better. Ms. Levin provided a doctor’s note to confirm this. She stated that if she had not dropped out of the program, she would now have her RN license.15
88On January 31, 2017, Ms. Levin began working as an RPN at Bayshore Home Health, approximately 12 hours per week. She earned $28 per hour. Bayshore would call her when they had a shift for her. She also continued to work as a CSW at various places for the rest of the year. She was able to do this because Nikol was helping to look after Michelle.
89In October 2017, Ms. Levin left the Bayshore job to work at Community Living York South, where she worked as a CSW. She earned $20 per hour. Even though the hourly wage was less, she took this job because it was full-time. Ms. Levin was working there at the time of trial.
90Ms. Levin stated that she was recently accepted again to the RN degree program at York University. It started on May 22, 2018, the first day of this trial. She is now a university student.
Analysis: Entitlement to Spousal Support
91Ms. Levin began working as an RN in Israel in 2004. She continued with this career, working part-time for 9 years. I accept her evidence that she was the primary caregiver for the parties’ two children. Mr. Levin worked full-time. His view is that childcare is the wife’s job. He testified that he did not see why Ms. Levin could not work full-time and care for Michelle. As noted above, he stated that, “the wives of couples that they knew all worked full-time and looked after the children.”
92Ms. Levin worked part-time as an RN until the parties moved to Canada in 2013. The evidence shows that when the parties applied to immigrate, she expected to continue working as an RN in Canada, once her credentials were approved. Ms. Levin began the application process while the parties were living in Israel. She knew she would have to write a licencing exam. She prepared for this when the parties still lived in Israel. I accept her evidence that she had friends who had made similar applications and who obtained approval of their credentials within six months. I find that Ms. Levin had a reasonable expectation that her credentials would be approved within a year after immigration.
93There is no evidence that Mr. Levin had to have his electrician’s credentials approved. He obtained a job as an electrician relatively quickly after immigrating.
94After they immigrated, both parties took English classes. I accept Ms. Levin’s evidence that when she arrived in Canada, she could understand English well enough to attend university; however, she could not speak it very well. The evidence shows that she studied English for approximately a year before she began working. This is not unreasonable.
95Ms. Levin began working as a PSW in 2015. Doing personal support work did not make use of Ms. Levin’s professional abilities, nor did it pay what she was capable of earning as an RN. She was accepted into the RN program at York University, in December 2015. Shortly afterwards, in January 2016, she obtained her RPN designation. Working as an RPN also did not make full use of Ms. Levin’s professional abilities.
96Even though the parties separated on January 22, 2016, Ms. Levin started the RN university program. I accept her evidence that she could not continue with the program because she was clinically depressed.15 She found herself a single parent and had to work full-time. She stated that she did not have a choice. She had to pay for two mortgages on the matrimonial home, two cars, and insurance for both. She stated that Mr. Levin had told her to stop studying and get to work. On separation, he gave her a one-month deadline to get a job and said he would take her credit card after that. He opened his own bank account.
97Mr. Levin did not pay any spousal support for the first six months after separation. He asserts that when the parties married, they had nothing. Now Ms. Levin has several university degrees and a $1,000,000 residence. The equalization calculation will address any need she has for spousal support.
98Mr. Levin’s position that Ms. Levin should have already obtained her RN by now, when the separation put Ms. Levin in the financial position of having to drop out of university, is ironic, to say the least. She had to work full-time to support herself and Michelle. Had she been able to complete the university program, she would have her RN by now.
99While Ms. Levin does have a $1,000,000 home; the mortgages total approximately $500,000. The value does not assist her to pay expenses for herself and Michelle, unless she sells it. If she sold the home, she would have to buy another residence. She might need another mortgage.
100The parties have been married for 26 years. Considering the totality of the evidence, I find that during the marriage, Ms. Levin provided most of the child care and cared for the home. She worked part-time and was dependent on Mr. Levin. She suffered an economic disadvantage because of the marriage. Her providing child care conferred a benefit on Mr. Levin. He was able to pursue his career as an electrician because Ms. Levin was looking after Michelle and everything at home. I find that Ms. Levin is entitled to compensatory support.
B. Is Ms. Levin’s Plan to Return to University Feasible?
Position of the Parties
Mr. Levin
101Mr. Levin states that Ms. Levin has proved that she has the ability to become self-sufficient. She earned $55,000 in 2017. Although she has stated that she will become an RN in three years and be self-sufficient, she will not agree to terminating support in three years. Her true motivation is to receive indefinite support. On questioning, she stated that she does not want to work full-time.
102Mr. Levin states that there was no agreement between the parties. He thought that she was pursuing her RPN license so that she could work. He wanted her to work. He did not want her to stay home nor did he want her to pursue further education. Ms. Levin’s wages increased throughout the marriage. She received a raise every year she worked.
103In Costa, the court stated that current income and potential income that she reasonably expected to receive (if she had not quit her job), must be considered. A spouse has an obligation to maximize her earning capacity. If Ms. Levin stops working for three years, this does not maximize her earning capacity. If she was able to earn $55,000 in 2017, it is reasonable to assume that she could earn the same amount in 2018.
104The jurisprudence relied upon by Ms. Levin regarding a party’s return to school concerns younger people who have longer to recoup the loss of not working while they are at school. Ms. Levin could have tendered the pass rate on the RN exam, the graduation rate, and the percentage of graduate nurses that obtain jobs. There should be some evidence that RNs are more employable than RPNs. Based on her evidence, Ms. Levin has started the program but has not even paid her tuition. She did not know the amount or the deadline. She has not applied for OSAP. Her intentions ought to be questioned.
105Mr. Levin stated that Ms. Levin only needs support so she can be in school. After the order is made, she could drop out but still be receiving support. The court should question whether she will follow through with the program. She is still working even though the RN program has started. Her intention is just to receive support. She is self-sufficient now but might not be later on.
106Ms. Levin has tendered only hearsay evidence that she could earn a higher wage working as an RN in contrast to working as an RPN. She was earning $27 per hour as an RPN. Although she quit her part time RPN job to take a full-time job as a CSW, she has not shown that RPN jobs are only part-time. Based on the evidence before the court, $28 per hour is the first-year salary for an RN. Given the fact that Ms. Levin’s experience has lapsed, there is no evidence that she will be paid more than a first-year graduate. Her evidence is based on conjecture and hearsay.
107In considering whether Ms. Levin’s plan to return to University is reasonable, the court should consider her age and the number of years that she has left to work.
Ms. Levin
108Ms. Levin was shown a printout from the Registered Nursing Association of Ontario which stated that a starting hourly wage for an RN ranges from $21.75 to $40 per hour. For nurses working in acute care, the hourly wage could be $43.61. Ms. Levin agreed that when she was working at Bayshore as an RPN she was paid $28 per hour. She disagreed with the suggestion that as a first-year graduate RN, she would not earn more than an RPN at Bayshore. She stated that she would not be considered a first-year nurse because she has experience.
109Ms. Levin stated that she received a letter dated March 3, 2018, from the College of Nurses. When she came to Canada, her application was good for five years. Because the rules changed, it was then good for three years. The letter told her that her practice component had expired. Now she must have 400 hours of practice and take courses, so that her practice will be updated. She agreed that when she moved to Canada, she had the requisite five years, but it lapsed. Ms. Levin stated that to re-establish it, her work in Israel would count toward her experience here. Her belief was based on her friends’ experiences. She stated that she would expect to be paid approximately $44 per hour when she graduates, based on what her friends are paid. Ms. Levin stated that she was certain she would find a job after graduation because two of her friends have full-time positions.
110Ms. Levin stated that she expected to make approximately $80,000 as an RN. This amount would increase over time. She stated that she would have benefits, a pension plan, health insurance, and vacation pay. She stated that health coverage for an RN is much broader in contrast to coverage for a RPN16.
Analysis: Ms. Levin’s Plan to Return to University
111As noted above, when the parties decided to immigrate to Canada, their plan was that Ms. Levin would have her Israeli credentials approved and work as a RN. Changes in the rules relating to approval of Ms. Levin’s foreign credentials have delayed this. When the parties arrived in Canada, Mr. Levin was able to continue his career as an electrician. Ms. Levin had worked as a nurse since 2004. She has an Israeli master’s degree in nursing. Mr. Levin conceded in his testimony that Ms. Levin should be permitted to be what she was in Israel, in other words, obtain her RN licence. It would be fair. In order for her to do this, she must complete the university program. I accept her evidence that she wants to be self-sufficient. Ms. Levin stated that after she graduates, she will need another year to study for and write the RN licencing exam. Then she will need further time to take a specialized course. Ms. Levin must also complete 400 hours of practical nursing.
112I am not persuaded that Ms. Levin must complete a specialized nursing course in order to obtain a job; however, I accept that she could be in a better position to obtain a higher paying nursing job if she has completed this type of course. The evidence was not clear regarding the length of time she will need to complete the 400 hours of practical nursing. Her work in Israel may contribute to some of these hours.
113From a financial perspective, using simple math, Ms. Levin states that $33,994 should be attributed to her as income while she is in school. This is approximately 51% of what she earned in 2017 ($66,904.87). If this number is used and she requires three years to complete the program and obtain a job, her income will be $32,910 less ($66,904 - $33,994) for those three years, or $98,730 in total. She stated that she expects to earn $80,000 as a nurse. This will result in her earning $13,096 more per year than she did in 2017. She is 51 years old. She will be able to look for a nursing job in 2021 when she is 54. If she obtains a job that pays $80,000, she will recoup the $98,730 loss of income in approximately 7.5 years, by the time she is 61 years old. If she works for 15 years as an RN, after she recoups the loss, she will earn $111,248 ($13,906 x 8 years) This is almost equivalent to two years of additional of additional income based on her 2017 earnings. From a financial perspective, Ms. Levin’s returning to university is feasible, assuming her prediction of her income is accurate, and she works full-time. Mr. Levin’s payment of spousal support will promote Ms. Levin’s efforts to become self-sufficient.
114In order for her to be a full-time student, Ms. Levin needs support. For this reason, she is also entitled to support on a non-compensatory basis.
C. What amount of spousal and child support should be paid?
115To determine the proper amount of spousal and child support payable, (as well as proportionate sharing of s. 7 expenses), I must determine the income of the parties.
116Section 19(1)(f) of the Federal Child Support Guidelines, S.O.R. /97-175 states that, “The court may impute such amount of income to a spouse as it considers appropriate in the circumstances which include the following: (f) the spouse has failed to provide income information when under a legal obligation to do so.”
Ms. Levin’s Income
2016
117Ms. Levin worked for seven months in 2016. Her line 150 income was $36,107.60. She stated that she was able to earn this much because she worked a lot of hours in two places. Nikol was helping with childcare.
Transfer of Title to the Properties
118On the date of separation, the parties jointly owned two properties; the matrimonial home located at 25 Edgemont Court, Richmond Hill, and an investment property located at 325 Westmoreland, in Toronto. It was a triplex. They decided that Ms. Levin would transfer to Mr. Levin her interest in the triplex and he would transfer to her his interest in the matrimonial home. This occurred in October 2016. They decided that for the purposes of valuation, they would use the date of transfer.
119Ms. Levin stated that she rented out a basement apartment in the matrimonial home for $1,100 per month. She gave all the information with respect to her income and expenses to her accountant to prepare her income tax return. It was not clear what specific amounts Ms. Levin deducted from income relating to the basement apartment. She stated that Nikol and her husband lived with her for a while; they used the master bedroom. They were not in the apartment. Nikol gave her about $800 a month. This amount was not included in rental income because she considered it to be a gift. She used the money to pay for groceries, among other things.
120With respect to the investment property, the tenants paid the following per month: $645 for the basement, $1,100 for the ground floor, and $900 for the second floor; $2,645 in total per month. Ms. Levin stated that she gave all of the cheques to Mr. Levin. He only paid approximately $500 for the property tax whereas she paid approximately $2,000. She stated that these amounts were not included on her 2016 income tax return because she withdrew money from their RRSP. Her 2016 ITR shows that she declared $9,830.28 of income from the RRSP. She stated that she notionally had to give Mr. Levin half of it. Her accountant told her that this was equal to including all of her rental income and expenses on the tax return17.
2017
121For 2017, Ms. Levin declared $66,904.87 as line 150 income. Her income from employment was $54,934.57. She stated that she was able to earn $54,934 in 2017, because she had two jobs and took all the overtime available. She worked much more than full-time. Mr. Levin was not paying any child support so she had to make ends meet. She stated that she could not continue to work like this anymore because Nikol no longer lives with her. She is not available to help with childcare as often as she did previously.
122On her 2017 tax return, she declared rental income of $15,650 gross and $5,994.42 net from the basement apartment. For several months, she also rented an upstairs bedroom to one of her daughter’s friend for $550, to help the friend. She stated that she will not rent out the upstairs bedroom again because she does not want strange people living with her and her daughter.
123Ms. Levin stated that she is not self-sufficient. She receives government assistance and child support from Mr. Levin; however, she cannot work 100 hours in one week. Nikol can only help with Michelle on weekends. Ms. Levin stated that she needs to spend more time with Michelle. Mr. Levin only has her every other weekend. She agreed that in these proceedings, she was taking the position that she wanted the most parenting time. She said she did this because Mr. Levin refused to take Michelle to activities or to help her with her homework. According to Mr. Levin, the first time he took Michelle overnight was in October 2016, after he moved to 73 Martina Crescent (Ms. Sandler’s house), nine months after separation.
124Ms. Levin denied that Nikol’s unavailability was preventing her from working full-time. She stated that she cannot work more than full-time. Her heart had become enlarged from working too much18. Prior to returning to university, she was working 40 hours per week which she found to be very hard.
125Ms. Levin agreed that Mr. Levin began paying child support in May 2016. Pursuant to Justice Nelson’s order dated September 21, 2016, and based on estimated income of $84,869, Mr. Levin was ordered to pay $1,157 per month for spousal support, and $761 per month for child support, commencing on July 1, 2016.
Support Paid by Mr. Levin
126The parties agree that in 2016, Mr. Levin paid support of $12,528. In 2017, he paid $20,245.
Income Imputed to Ms. Levin
127While Ms. Levin is in the university RN program, she will not be able to work full-time. I accept her position that income of $33,994 should be imputed to her for the next three years commencing on June 1, 2018. It is approximately 51% of her line 150 income for 2017.
Mr. Levin’s Income
2015
128In 2015, Mr. Levin was an electrician employed by Silfab. His Notice of Assessment for 2015 shows:
Employment income: $80,068.60,
Rental income: Gross: $34,200 Net: $482.6119,
Total income: $81,323.54.
2016
129Levin continued to be an employee of Silfab until November 16, 2016. Nine months after separation, on September 22, 2016, Mr. Levin incorporated Westa Automation Limited. Mr. Levin testified that through Westa, he became an electrical contractor. His main client was his former employer, Silfab. The evidence shows that he did only a small amount of work for other customers. Mr. Levin’s 2016 Income Tax Return shows:
Employment income: $73,690.05,
Rental income: Gross: $8,505 Net: $1,716.03,
Total income: $75,406.08.
130Westa’s 2016 banking records show deposits into the corporate account of $1,155.53 and $4,398.26; totalling $5,553.79. Mr. Levin stated that these deposits included HST. I note that if HST were factored out, the total would be $4,914.86.
131In 2016, Mr. Levin declared on his ITR that he paid $6,942 for spousal support. His net taxable income as shown on his 2016 ITR was $68,464.08. After payment of income tax, the balance was $54,860.25.
132Ms. Levin states that Mr. Levin spent considerably more than $54,860.25 in 2016. She presented a detailed analysis of his payments on credit cards as well as payments from his bank account which shows the following:
RBC Visa: $37,504.72
RBC Mastercard (corporate): $371.21
Costco (Capital One): $13,327.35
Payments/withdrawals from Personal Bank Account20: $39,522.80
Total: $90,726.08
Less after tax disposable income: $54,860.25
Difference: $35,865.83
133Ms. Levin states that Mr. Levin spent $35,865.83 in excess of his income. Accordingly, at a minimum, he should be attributed $20,000 of grossed up income.
134On his 2016 ITR, Mr. Levin declared rental income from the investment property of $8,505 for three months, October to December, after title was transferred to him. Ms. Levin states that he should have declared rental income for five months because, beginning in August, she gave him the rent payments.
135Ms. Levin stated that Mr. Levin told her that he was making money “under the table” because he had to pay a lot of support for Michelle, and he had to pay his lawyer. As noted above, in a telephone conversation on September 6, 2016, which Ms. Levin recorded21, he stated, “I am trying to make some cash off the books in order to pay you fucking whore, to pay the lawyer. Once again, I don’t give a shit if it’s maximum or minimum to pay you and also to support myself, you see? That’s why I [am] working for cash.”
136Based on the additional rent and $20,000 of attributed income, Ms. Levin states that Mr. Levin’s actual income in 2016 was $123,000.
Analysis: Spousal & Child (2016)
137I do not agree with Ms. Levin’s position on the rental income. The parties held this property jointly until October 16, 2016.22
138Mr. Levin’s declared employment income, $73,690.05 plus the net rental income of $1,716.03, totals $75,406.08. After payment of spousal support of $6,942, as declared on his ITR, his income was $68,464.08. Mr. Levin spent $90,726. The difference is $22,261.92. Mr. Levin provided no explanation for the source of this additional income. I do not accept the submission that he was not earning cash because his bank accounts do not show cash deposits. Cash can be earned to avoid paying income tax. Depositing cash to a bank account can attract attention. In the circumstances, I attribute this income to him. The amount must be grossed up to determine the actual amount of Mr. Levin’s income that would provide him with the additional after-tax amount to spend. With the gross up, his income is determined to be $111,410. Guideline child support is $1,000. The Spousal Support Advisory Guidelines suggests a range for spousal support: low $889, mid $1,289 and high $1,661. Ms. Levin has requested mid-level support. Considering her individual circumstances, the long marriage, her return to school, and the SSAG, I find that mid-range support is appropriate. I determine it to be $1,289/ month. Combined support is $2,289/month; $13,743 for July to December. Justice Nelson’s order, made on consent, required Mr. Levin to begin paying $761 for child support and $1,157 for spousal support as of July based on income of $84,869. Mr. Levin paid $12,528 in support in 2016, including child support from May to June inclusive. Accordingly, the arrears are $1,215 ($13,743 - $12,528).
139Mr. Levin states that he overpaid spousal support because Ms. Levin withdrew money from the joint RRSP. I note that she declared $9,830.28 gross for the withdrawal. The net would be considerably less. As noted above, Mr. Levin did not begin paying child support until May 2016, although parties separated on January 22, 2016. Ms. Levin agreed that spousal support would commence July 1, 2016, six months after the date of separation.
140In 2016, Mr. Levin declared $8,505 as rental income from the investment property. As noted above, he claimed gross rental income of $34,200 in 2015. It appears that he under declared the rental income in 2016. Therefore, I reject his position that he overpaid support because Ms. Levin withdrew $9,830 from the joint RRSP, which was taxable.
141Mr. Levin also states that Ms. Levin under declared her income because she omitted the $800 per month that she received from Nikol while she and her husband were using the master bedroom in the matrimonial home for 10 months. It is questionable whether this was income. No doubt they benefitted from utilities paid for by Ms. Levin. Ms. Levin had the inconvenience of using a smaller bedroom. They ate food which Ms. Levin testified she purchased using some of the $800 per month. Overall, I find Ms. Levin was helping Nikol and her husband and they were contributing to their share of expenses, and for the inconvenience. In addition, because Nikol was living in the matrimonial home, she was able to provide care for Michelle. Accordingly, the section 7 expense in that regard was less than it might have been.
142Taking all these factors into account, I find that Mr. Levin did not overpay support in 2016.
2017
143Mr. Levin’s ITR for 2017 shows:
Employment income from Westa Automation $40,000
Rental income Gross: $12,540 Net: $10,521.67
Capital gains (on sale of investment property) $16,970.36
Total income $67,492.03
Mr. Levin’s Position
144Mr. Levin states that, he earned no income outside of Westa since December 2016, and his income for support purposes can be no higher than $85, 761.33. He states that after accounting for expenses, his 2017 income for support purposes was $81,935.33.
Ms. Levin’s Position
145Mr. Levin declared a taxable capital gain of $16,970.36 from the sale of the investment property. Ms. Levin submits that Mr. Levin declared it to be his personal residence to minimize the taxable capital gain. She states that it was not his personal residence. The real estate listing states that the property has three occupied apartments. Mr. Levin was living with Helen Sandler. But for this improper declaration, the capital gain would have been $33,940.71.
146Ms. Levin states that despite his declared income of $58,297, after payment of spousal support of $9,195, Mr. Levin spent $109,372 in 2017. His credit card statements and personal bank account show the following payments:
RBC VISA $ 49,635.30
RBC Mastercard (corporate) personal purchases $ 25,026.00
Costco (Capital One) $ 11,411.61
payments/withdrawals from his personal account $ 23,299.93
Total $109,372.84
Less income $ 58,297.03
Difference $ 51,075.81
147Ms. Levin states that Mr. Levin spent $56,748.09 in excess of his disposable income. Accordingly, he had other income in addition to his declared income.
148Ms. Levin points out that on January 30, 2017, a deposit of $8,000 was made into Mr. Levin’s personal account. At questioning on October 30, 2017, he stated that it was a loan from Ms. Sandler. He also stated that he was paying Ms. Sandler rent of $1,000 per month to live in her house.
149Prior to trial, on April 20, 2018, Ms. Levin brought a motion to obtain certain financial disclosure from Ms. Sandler. McGee J. was satisfied that the order sought by Ms. Levin was reasonable, necessary, and that it would be unfair for Ms. Levin to proceed to trial without it. She ordered that Ms. Sandler, as a third party:
(a) Make available for Ms. Levin’s counsel to review, copies of her 2016 and 2017 income tax returns and notices of assessment
(b) Be added to the witness list for Ms. Levin and be cross-examined on testimony that is inconsistent with her financial records
(c) Make available to Ms. Levin’s counsel all her banking and credit card statements for the period January 1, 2016, to April 1, 2018, to be used only during her testimony at trial.
150Although he was not required to serve it, Mr. Levin testified that he did not bring this order to Ms. Sandler’s attention because he thought it would destroy their relationship. Ms. Levin served Ms. Sandler by mail. Attempts were made, unsuccessfully, to serve the order on her personally.
151No supporting documentation has been produced with respect to the alleged loan. Ms. Levin alleges that Mr. Levin has been earning cash, giving it to Ms. Sandler and then receiving the money back from Ms. Sandler which he characterizes as a loan. This $8,000 deposit is evidence of the arrangement.
152Ms. Levin submits that the court should infer that the $8,000 was not a loan. In addition, this court should infer that Mr. Levin does not have any expense for rent. Mr. Levin and Ms. Sandler have been living together in a relationship since at least September 2016, perhaps even earlier. Furthermore, the corporate address for Westa is Ms. Sandler’s address.
153Ms. Levin states that the court should pierce Westa Automation’s corporate veil. Westa and Mr. Levin should be treated as one and the same. The evidence shows that Mr. Levin uses the corporate credit card for his own personal purchases. Silfab, Mr. Levin’s former employer, is essentially Westa’s only customer. Mr. Levin incorporated Westa for tax advantages to reduce his taxable income.
154In his affidavit, Mr. Levin agrees that Westa’s income is essentially his income. He states that his 2017-line 150 income of $67,492.03, is not his proper income for support calculation purposes, nor is Westa’s gross income because certain legitimate operating expenses were incurred. When one considers Westa’s gross income and extrapolates it for a 12-month period, the total revenue would be $85,761.33. He states that his income for spousal support purposes should be no higher than that amount.
155Ms. Levin states that income of $194,743 should be imputed to Mr. Levin for 2017 comprised of the following: $91,205 (employment income/deposits to the corporate account) $10,521 rental income, $16,970.36 taxable capital gain, $8,000 (the “loan” from Ms. Sandler) $4,000 (rent paid to Ms. Sandler) and $20,000 cash income gross up.
156Mr. Levin states that he had money to spend because he sold the investment property. The credit card statements for January 2016 show balances carried forward from 2015. Accordingly, the payments made in 2016 do not reflect his purchases.
Analysis: Spousal & Child (2017)
157I accept Mr. Levin’s evidence that deposits to the corporate account included HST. HST cannot be considered income to Mr. Levin. When HST is factored out, the amount is $80,712.39. In addition, the corporation likely had some legitimate business expenses. Using the total of the deposits to the corporate account, even with HST factored out, does not give an accurate picture of Mr. Levin’s 2017 income.
158Westa’s financial statement shows that it had sales of $64,32123. The payroll expenses were $27,871. It paid management salaries of $16,120. There was no evidence as to the recipient of the management salaries. Although Mr. Levin conceded that he was one and the same as Westa, he declared only $40,000 of employment income from Westa in 2017.
159With respect to the alleged $8,000 loan from Ms. Sandler, although Mr. Levin could have provided a document from Ms. Sandler to prove the loan, he did not do so. Although Mr. Levin was not required to serve Ms. Sandler with Justice McGee’s order, he knew about it. He knew that the court had determined that trial unfairness would result if Ms. Levin did not have financial documents from Ms. Sandler. She did not produce any documents. I draw an adverse inference in these circumstances. I find that the $8,000 was not a loan. It was income to Mr. Levin. By his own evidence, he pays Ms. Sandler $1,000 per month. He did provide receipts signed by Ms. Sandler for the rent in 2017.
160If Mr. Levin earned only $85,761 in 2017, he would not have been able to spend $109,372, as disclosed by the evidence. When it was put to him that he spent $109,372, he stated, “Let’s say $100,000.” He admitted that he spent well over $85,761. I do not accept his explanation that he was spending the sale proceeds from the investment property. He spent money throughout the year, but the deal did not close until October. The evidence shows that he made credit card payments totaling $39,035 prior to October. Mr. Levin was secretive regarding the amount that he received on the sale and the location of the proceeds. He did not produce any documents in this regard. In testimony, he stated that there was perhaps $180,000 in a safety deposit box. He testified that he was thinking about buying a property with Helen Sandler. Despite the fact that Mr. Levin maintained that he was spending the sale proceeds which account for his spending over his income, he did not provide any type of accounting. He could easily have done so. He failed to do so at his peril. The fact that the credit card statements had previous balances is immaterial. Mr. Levin had money to make the payments. Mr. Levin has offered no credible explanation for the source of this additional income.
161Mr. Levin’s 2017 ITR shows that after he paid spousal support of $9,195, his income was $58,297. Nevertheless, he spent $109,372. He spent $51,075 more than his income. In the circumstances, I attribute this amount to him as income. The $51,075 must be included as other non-taxable income to calculate Mr. Levin’s income for support purposes. When that amount is grossed up, Mr. Levin’s income is determined to be $170,333 for 2017, which I find is his income for support purposes.
162The SSAGs range for support on this income is: low $2,704, mid $3,161 and high $3,636. Using mid-range support, Mr. Levin should have paid $4,606/month (comprised of Guideline child support of $1,445 and spousal support of $3,161); $55,272/year for 2017. In December 2017, he arbitrarily stopped paying spousal support in breach of Justice Nelson’s order. In 2017, he paid $20,245.21 in total. Accordingly, he owes arrears of $35,026.79 for 2017.
2018
Ms. Levin’s Position
163Ms. Levin’s position is that $147,730 should be imputed as income to Mr. Levin going forward. This is based on $91,205 employment income, $12,000 of rent paid to Helen Sandler, and $20,000 cash income grossed up.
164As noted above, the total of the deposits to the corporate account does not provide an accurate picture of Mr. Levin’s income.
Analysis: Spousal & Child (2018)
165It is not possible to determine the amount that Mr. Levin will spend in 2018. I will assume that his spending pattern will be the same, but he will not have rent from the income property or capital gains income. Therefore, his income will be $27,491 less. Ms. Levin acknowledged this. I assume that he will have the same capacity to earn non-taxable income in 2018 as he did in 2017. Accordingly, assuming his 2018 declared income is the same as it was in 2017, $40,000, and using his 2017 non-taxable income grossed up of $51,075. I find that his income for 2018 is $118,033. The SSAG range for support is low $1,059, mid $1,459 and high $1,834. The Guideline child support amount is $1,052. Combined with the mid-range amount, the total is $2,511. Mr. Levin shall pay support of $2,511 per month beginning on January 1, 2018. He paid $3,044 for child support for January to April ($761 x 4). As noted above, he has paid no spousal support in 2018. He should have paid combined support of $27,621 from January to November inclusive. Assuming he continued to pay only child support of $761 a month, he would have paid $8,371. His arrears up to and including November 2018 are $19,250 ($27,621- $8,371).
166Mr. Levin shall pay combined support of $2,511 per month until such time as the support is reviewed.
Review
167Mr. Levin may request a review of support in May 2021, which will be three years after Ms. Levin started the university program. By then, she should have a BScN. She may be employed as an RN. Her financial circumstances will likely be completely different from what they are now.
Proof of Enrolment
168Mr. Levin stated that Ms. Levin dropped out of the university program in 2016. He suggests that she may drop out again. The evidence shows that Ms. Levin dropped out in 2016 because she was not receiving any support at that time and could not be a full-time student and work full-time to support herself and Michelle. Nevertheless, it is appropriate that Ms. Levin provide proof of enrolment in the BScN program and payment of tuition every six months, beginning in November 2018. If Ms. Levin drops out of the program, Mr. Levin may request a review of support at that time.
D. What amount should Mr. Levin be paying for s.7 expenses?
Ms. Levin’s Position
169According to Ms. Levin, Mr. Levin said that he would pay his proportionate share of s. 7 expenses, but he has not paid anything to date. Justice Nelson’s order dated September 21, 2016, requires Mr. Levin to pay 71% of s. 7 expenses commencing on July 1, 2016. Ms. Levin stated that she has asked him monthly for payment of the expenses and has sent him receipts, but he has ignored her.
170Ms. Levin stated that Michelle’s extracurricular activities prior to separation are stated in Justice Nelson’s order. She was attending a program every day after school called Le Club and on Saturdays she studied English and Russian. Mr. Levin would not take her to Saturday school.
171Justice Nelson’s order lists the s. 7 expenses that existed prior to the date of separation. They are:
(a) Bright Minds Academy [math and English tutoring] (estimate cost per month: $170)
(b) Le Club Child Care Program - summer (July and August) - (estimated cost per month: $1,200)
(c) Le Club Before & Afterschool Program/Payday – (estimated cost per month $415)
(d) Dance Lessons (estimated cost per month: $180)
(e) English Lessons – Svetlana Kalinovich (estimated cost per month: $226)
(f) Medical/Orthodontics Expenses for the child – (cost estimate to be provided to the Respondent in advance of treatment)
172The total amount per month is $710.58.
173Ms. Levin states that Michelle no longer attends Bright Minds Academy because the class was on Saturdays. Mr. Levin refused to take her to the Saturday class when he had an access weekend. In substitution, Michelle now has mid-week tutoring. This is less expensive than Bright Minds. It is $155/month.
174Ms. Levin states that Mr. Levin should be ordered to pay a monthly global amount so that it can be enforced. He has not complied with Justice Nelson’s order, even though he agreed to the terms. Going forward, he is very unlikely to pay section 7 expenses after being provided with receipts.
Mr. Levin’s Position
175Mr. Levin agreed that he had not paid any s. 7 expenses. He stated he had an agreement with Ms. Levin that he would pay them once “everything was sorted out”. Mr. Levin states that he will pay his proportionate share of valid section 7 expenses pursuant to Justice Nelson’s order. He disagrees that child care and tutoring are valid expenses when he is available to provide this to Michelle. He states that her summer camp activities should be limited to two weeks, as they were prior to separation.
Analysis: section 7 Expenses
176I find that it is quite unlikely that Ms. Levin would have agreed to defer Mr. Levin’s payment of s.7 expenses. It would require her to front end all of the expenses. Unfortunately, that has been the result.
177Section 7 of the Guidelines states that “child care expenses incurred as a result of the custodial parent’s employment…or education or training for employment” constitute an extraordinary expense. Accordingly, I do not accept Mr. Levin’s position that child care is an invalid expense. I also do not accept his position that he could provide child care while Ms. Levin is either employed or at school. He works full-time. As noted earlier, his text message dated December 12, 2016, indicates a significant unwillingness to assist with childcare.
178I do not accept Mr. Levin’s position that tutoring is an invalid expense. Ms. Levin stated that Michelle has special needs. This is confirmed by the school board and her doctor. Ms. Levin stated that Michelle was tested when they lived in Israel. The testing clearly showed that she required special accommodations. In Canada, her teacher said that she required an Individualized Education Plan. She received speech therapy. Ms. Levin stated that she wants Michelle to have assistance throughout her time in school. Mr. Levin did concede that Michelle needs some assistance.
179Ms. Levin testified that she received a letter from Michelle’s school during the trial, which states that she has a language impairment and will be continuing in her previous programs. Ms. Levin provided a letter dated September 6, 2017, from the Ontario Central Local Health Integration Network, which confirms that Michelle has been assessed as eligible for speech language pathology. She also produced Michelle’s school Individual Education Plan that was completed on October 17, 2017. It identifies that she has a language impairment and requires additional assistance.
180The test for section 7 expenses is whether the expenses are necessary, reasonable, and consistent with the family’s spending pattern prior to separation. Although Michelle receives extra help at school through her Individual Education Plan, she was attending Bright Minds Academy for tutoring prior to separation. Both parents agreed that she required the tutoring. I find that tutoring is necessary for Michelle, reasonable, and consistent with the family’s spending pattern prior to separation.
181I accept Ms. Levin’s evidence that she paid the following for s. 7 expenses:
(a) 2016 - $4,362 (6 months $727/month)
(b) 2017 - $5,386 ($448.83/month)
(c) January to April 30, 2018 - $1,260 (4 months $315/month)
182From 2016 to 2018, the monthly spending on Michelle’s activities has decreased. I assume that she has fewer activities in contrast to those listed in Justice Nelson’s order. This may be occurring because Ms. Levin has had to pay for all the expenses without any contribution from Mr. Levin.
183According to the SSAG, in 2016, Mr. Levin’s proportionate share of s. 7 expenses is 66%. Accordingly, Mr. Levin should have paid that percentage of the expense which is $2,878.92.
184According to the SSAG, in 2017, Mr. Levin’s proportionate share is 64.8%. Accordingly, he should have paid that percentage of the expense which is $3,490.13.
185According to the SSAGs, in 2018, his proportionate share is 66.1%. Accordingly, he should have paid that percentage of the expense from January to April inclusive which is $832.86 (66.1% of $315 = $208.22 per month). Assuming that the s. 7 expenses continue to be $315 per month, he should have paid $1,457.54 ($208.22 x 7) for May to November inclusive. From January to November, he should have paid $2290.42.
186Using $315 per month and 66.1%, commencing on December 1, 2018, Mr. Levin shall pay $208.22 monthly for section 7 expenses until such time as support is reviewed. Given his non-compliance with Justice Nelson’s order, $208.22 shall be added to the monthly support amount of $2,511, resulting in $2,719.22, and shall enforced as support by the Director of the Family Responsibility Office.
187If a medical expense for Michelle is not covered by OHIP and is in addition to the s. 7 expenses set out above, after considering the parties’ health insurance benefits, as well as any subsidies or tax benefits received, the expense shall be shared by the parties with Mr. Levin paying 66.1% and Ms. Levin paying 33.9%,
E. Does this Court have jurisdiction to make an order with respect to land in Ukraine?
188Ms. Levin stated in her application that Mr. Levin holds title to three parcels of land in Ukraine, in trust for Nikol. Ms. Levin stated that her stepfather provided the land as a gift to Nikol; however, title to land in Ukraine can only be held by Ukrainian citizens. Nikol cannot hold title because she is not a citizen. In her testimony, Ms. Levin stated that Mr. Levin no longer holds the land in trust because they are no longer one family. Nikol does not communicate with him. Ms. Levin states that Mr. Levin should pay her the value of the Ukrainian land and she will give the money to Nikol. She produced an appraisal of the land. Nikol swore an affidavit dated May 19, 2018, in which she stated that she was content to have the issue of the land dealt with in these proceedings.
189Evidence was provided that there is a moratorium on selling farmland in Ukraine. Mr. Levin’s position is that Nikol is not a party in these proceedings. Because Ms. Levin states in her pleadings that he holds the property in trust, there is no right to equalization.
Analysis: Jurisdiction over land in Ukraine
190This court does not have jurisdiction to determine this issue. It is a matter between Mr. Levin and his daughter.
F. What amount should be paid to equalize the net family property?
191There are a few significant differences in the parties’ net family property statements.
The Investment Property
192As noted above, both before and after separation, the parties jointly held title to the matrimonial home and an investment property located at 325 Westmoreland, Toronto. In October 2016, approximately nine months after separation, Ms. Levin transferred to Mr. Levin her interest in the investment property and Mr. Levin transferred to Ms. Levin his interest in the matrimonial home. The parties agreed that the two properties would be valued as of the date of these transfers.
193The value of the investment property is an issue. Each party obtained an appraisal of it. In a letter between counsel dated July 24, 2017, the parties agreed that the value of the investment property would be set at $642,500 which was the midway point between the two appraisals. Ms. Levin stated that on May 30, 2017, prior to this agreement, Mr. Levin sold the investment property for $654,888. Ms. Levin stated that Mr. Levin withheld material information regarding the value of the property prior to the parties’ agreeing on its value in July. Ms. Levin states that the proper value of the investment property for equalization is $654,888.
194Mr. Levin did not dispute this evidence. He stated that he did not disclose the sale price because he was uncertain as to what effect it would have on the trial. I find that the correct value for equalization is $654,888.
Keren Hishtalmut
195Mr. Levin has a short term, tax-free savings account in Israel called a Keren Hishtalmut. He stated that after a person deposits money to this type of account, it is locked in for six years and cannot be withdrawn except by paying a penalty. Ms. Levin seeks to equalize the amount in the account, $6,528.13. She stated that Mr. Levin did not want to withdraw the money prior to the expiry date in 2018, because he did not want to pay a penalty. Mr. Levin admitted, on questioning, held on October 30, 2017, that this amount was locked in until 2018. I find that Mr. Levin held this asset on the date of separation. It is subject to equalization.
Tax Refunds
196Ms. Levin states that Mr. Levin received a tax refund in 2016 of $3,800 for his 2015 tax year. She received a refund of $788.01. She states that these amounts should be included in the equalization calculation.
197These tax refunds relate to 2015 income. No authority was provided to support the argument that they should be equalized as assets owned on the date of separation. This is not allowed.
Analysis: Equalization of Net Family Property
198A Net Family Property Statement is attached as Schedule A. Taking the above into account, Ms. Levin shall pay to Mr. Levin $39,519.51 to equalize the net family property.
G. What amounts should be paid for post-separation adjustments?
Cruise Ticket
199Prior to separation, the parties decided to go on a Caribbean cruise. Funds in the joint account were used to pay for the tickets. Ms. Levin stated that Mr. Levin unilaterally decided to cancel her ticket. She seeks to equalize the amount. She was deprived of the opportunity to go on the cruise. He could have cancelled his ticket.
200Mr. Levin stated that he cancelled the ticket prior to separation. He stated that he might have received $300 to $400.
201Ms. Levin has provided no evidence of the amount of the refund. Based on Mr. Levin’s evidence, he shall pay Ms. Levin $400.
Repairs to Matrimonial Home
202Ms. Levin is seeking an adjustment for repairs done to the matrimonial home, after Mr. Levin transferred his interest in it to her. She had to replace the furnace and install a staircase to the basement apartment. She acknowledged that the invoice for the furnace was dated November 30, 2016. The invoice for the staircase was dated October 22, 2016. The cost of the furnace and stairs total $5,992. Ms. Levin agreed that the work was likely done in October and November 2016, ten or eleven months after separation. Mr. Levin transferred his interest in the home to Ms. Levin on October 26, 2016.
203Ms. Levin states that the matrimonial home was appraised as of the date of the transfer, but the appraiser viewed the house well after that. Ms. Levin stated that the appraiser saw the repairs and took them into account when valuing the property. The property was “overvalued” because of the repairs. Ms. Levin states that Mr. Levin should pay her half the value of the repairs, otherwise Mr. Levin is getting a double credit.
204There is no evidence that the matrimonial home was worth less prior to the repairs or that the repairs have added $5,992 to the value of the home. Furthermore, Ms. Levin claimed $5,500 in rental income and presumably deducted $7,914 as expenses because the net rent shown on her 2016 ITR is negative $2,414.78. The amount that she claimed as a tax deduction is more than the repairs. The request for the adjustment is not allowed.
Repairs to the Investment Property
205Mr. Levin states that he spent $2,850.99 on repairs to the investment property after separation. He produced the invoices. He states that Ms. Levin shared in the value of these repairs and seeks an adjustment.
206The invoices that Mr. Levin relies on are dated October 10, 2016, and October 15, 2016, prior to the transfer. He requests to be credited half of the amount. The dates on the invoices are after the date that the parties agreed to the value of the property, but before Mr. Levin entered into the agreement of purchase and sale for the higher price.
207Ms. Levin transferred her interest in the property to Mr. Levin on October 30, 2016. There is no evidence that the value of the investment property was $2,850.99 less prior to the repairs. Furthermore, as noted below, Mr. Levin claimed $2,855 on his 2016 ITR as a deduction for rental maintenance and repairs. He had the benefit of paying less income tax on the rental income. In addition, the parties came to an agreement regarding the value of the property on July 20, 2017, nine months after the repairs were done. Mr. Levin agreed to the value knowing the cost of the repairs.
208The request for this adjustment is not allowed.
Mortgage Payments Taken by Mr. Levin from Joint Account
209Ms. Levin states that the two mortgage payments on the matrimonial home were $1,518.21 and $978.43 per month. The mortgage payment on the investment property was $1,749.61. She states that every month she would put money into the joint account to cover the payments24. They were paid from the joint account. In February 2016, Mr. Levin made three withdrawals from the joint account of those amounts. As a result, the mortgage payments were not made for February. A penalty was imposed of $703.99. Ms. Levin states that she made the payments later and paid the penalty. She requests that Mr. Levin reimburse her for $1,518.21, $978.43, and $703.99; expenses which total $3,200.63.
210Mr. Levin states that he inquired at the bank as to whether mortgage payments could be skipped. The bank said that this was possible. The bank did not mention a penalty. He withdrew the money because he needed it.
211The transfers of these amounts from the joint account into Mr. Levin’s account are documented on the bank statements. Mr. Levin stated that he needed money; however, it is curious that he made three withdrawals in the exact amounts of the mortgage payments.
212I find that Mr. Levin inappropriately withdrew the amounts of the mortgage payments from the joint account for his own purposes. A penalty was imposed that Ms. Levin paid. Accordingly, Mr. Levin shall pay to Ms. Levin $3,200.63.
Mr. Levin’s Withdrawals from Line of Credit
213Ms. Levin states that between January 22 and June 13, 2016, Mr. Levin withdrew $5,100 from the line of credit registered against the matrimonial home. She assumed the line of credit when the home was transferred to her in October. She requests that Mr. Levin reimburse her for this amount.
214Mr. Levin states that he used the money to pay for family expenses. He states that Ms. Levin has not shown otherwise. I note that it would be difficult for Ms. Levin to show how Mr. Levin spent this specific amount of money. If Mr. Levin did spend the money on family expenses, he ought to have provided an accounting for it.
215Mr. Levin shall reimburse Ms. Levin $5,100.
Leased Vehicles
216The parties had two leased cars; a 2013 Nissan Sentra (lease payment $246.53/month), and a 2015 Nissan Murano (lease payment $640/month). The lease agreements were in Mr. Levin’s name. According to Ms. Levin, the parties made a $1,500 down payment on the Sentra. She drove it. Mr. Levin drove the Murano. Ms. Levin stated that she made both lease payments from the joint account until it was closed in June. On February 6, 2017, Mr. Levin traded in both cars for a 2017 Nissan Murano. Ms. Levin requests that she be reimbursed for half of the down payment.
217Ms. Levin relies on a document to show the down payment; however, it is dated March 18, 2015 and pertains to the Murano. Furthermore, the down payment was made three years before separation. Her request for an adjustment is denied.
218Mr. Levin states that he purchased winter tires for the Sentra in May 2016. He provided an invoice in the amount of $626.26. He also paid for the repairs on the Sentra’s bumpers in the amount of $1,186.50, in order to turn in the vehicle. This is shown on an invoice dated March 3, 2017. He requests reimbursement for these amounts.
219According to Ms. Levin, Mr. Levin insisted on returning her car prior to the end of the lease. In order for the vehicle to be returned, it had to have tires. If it required bumper repairs, those had to be done. I accept Ms. Levin’s evidence that Mr. Levin made the decision to return Ms. Levin’s car. His request for reimbursement is denied.
Withdrawals and Deposits to the Joint Account After Separation
220As noted above, shortly after separation, Ms. Levin withdrew $45,000 from the joint account and then returned $5,000. She has accounted for the $40,000 on her net family property statement. She states that both she and Mr. Levin made deposits to, and withdrawals from, the joint account post-separation. The parties agree that Mr. Levin withdrew $14,291.63 and deposited $8,664.68. He withdrew $5,626.95 more than he deposited. They further agree that Ms. Levin deposited $20,260 and withdrew $5,443.50. She deposited $14,816.50 more than she withdrew. Ms. Levin requests Mr. Levin reimburse her 5,626.95.
221Mr. Levin states that he withdrew the money to pay for family expenses. The onus on Ms. Levin is to show that that the funds were not used to pay family expenses. She has not done so. Furthermore, he states that Ms. Levin has cherry picked withdrawals. Some cheques were written on the account. He does not know who wrote them. He states that he did not have the cheque book.
222I note that Ms. Levin does not include the amounts of the cheques in her calculation. She states that she wrote the cheques for s. 7 expenses. I accept her evidence in this regard.
223Ms. Levin provides Duan v. Li25, as authority for her request that to make the adjustment. In Duan, the court found that the adjustment was necessary because the financial activity occurred after the valuation date and was therefore outside of the equalization process.
224I find that Ms. Levin deposited $14,816 more than she withdrew. Mr. Levin deposited $8,664.68 but withdrew $14,291.63. In order to do so, he notionally used $5,626.95 that was already in the account by virtue of Ms. Levin’s deposits. Accordingly, I find that Mr. Levin owes Ms. Levin $5,626.95.
National Insurance of Israel Debt
225As noted above, Mr. Levin testified that in Israel, adults are obliged to make payments to the National Insurance Institute. This for health care, the military, and a pension. The account went into arrears.
226Mr. Levin states that this was a joint debt incurred for the benefit of himself, Ms. Levin, and Michelle. He states that he paid the debt, $1,248, after separation; therefore, is entitled to an adjustment of $624.
227Mr. Levin states that if this court should find that the debt was his alone, it should be included on his net family property statement as a liability because the balance owing on the date of separation was 2,068 ILS (sheckels).
228Mr. Levin stated that monthly payments of 160 ILS /$60 were remitted to the government from earnings, similar to a Canadian source deduction (I will call it a premium.). He admitted that Ms. Levin was working at the time; therefore, her premium was remitted from her own employment earnings.
229Mr. Levin relies on a document entitled National Insurance Institute Insurance and Collection from non-employees. It shows charges of 4,818 ILS between February 25, 2014, and July 15, 2016, after the parties immigrated to Canada. The amount owing as of February 25, 2014, was 1,213 ILS. The total amount owing was paid between February 2014 and April 18, 2017, by six garnishments of Mr. Levin’s bank accounts in Israel (March 18, 2014, June 24, 2014, December 17, 2014, February 18, 2016, September 25, 2016 and April 18, 2017). Between the garnishments, fines were imposed. After the second garnishment, the balance was 17 ILS. After the third garnishment, the balance was 15 ILS.
230Mr. Levin testified that he told Ms. Levin that he should cancel his Israeli permanent residency because of the garnishments. He stated that Ms. Levin did not want him to do this. She was worried about Michelle and wanted the health care coverage to remain in place. He testified that he took all the money from the pension account and closed his bank accounts. Nevertheless, the government still found an account to garnish. He agreed that this was the account that he held jointly with his mother. He testified that his mother sent him money on June 22, 2016, and October 11, 2016, because she was worried that the funds in the account would be garnished.
231On February 18, 2016, the first entry in the year of separation, a garnishment collected 2,016 ILS. The balance remaining was 38 ILS.
232The charges, fines, and garnishments continued until April 18, 2017, when the full amount owing was collected. This is the last entry on the document. I assume that either the bank account was completely depleted, or the premium charges ended.
233I do not accept Mr. Levin’s evidence that he wanted to maintain Israeli health care coverage for Michelle. He made no premium payments. There was an outstanding balance from 2013, the year of immigration. He purposefully tried to frustrate the garnishments.
234The monthly premium payments were not large – approximately 160 ILS/$60. After they immigrated, the parties purchased real estate. The premium payments were within Mr. Levin’s means. It appears that he was playing catch me if you can regarding the premiums. He was maintaining his permanent residency perhaps to satisfy Ms. Levin but he was trying to avoid collection of the premiums.
235The amount of 2,068 ILS/$785.84 CAN was owing as of the last balance prior to separation. This is a debt that existed on the valuation date and is to be included in Mr. Levin’s net family property.
H. What orders should be made?
Michelle’s Documents
236Ms. Levin requests that Mr. Levin return Michelle’s Israeli passport. She needs it to apply for Michelle’s citizenship. Mr. Levin states that he does not have the passport. He testified that he returned everything on New Year’s 2017. A text message that he sent dated February 20, 2018, suggests otherwise. In the discussion, Mr. Levin appears to be asking for some of his own documents. Ms. Levin states that Mr. Levin must return Michelle’s passport and permanent residency card. In reply, he states, “the question about documents remains open until 9 p.m. of this coming Sunday 25 February. After this date, I’ll consider all documents lost and they will be lost for you as well.” I conclude from this that Mr. Levin has Michelle’s Israeli passport.
237Mr. Levin shall return Michelle’s Israeli passport to Ms. Levin within 30 days of the date of these reasons.
Medical Insurance
238Ms. Levin requests that Mr. Levin purchase medical insurance for Michelle. There was no evidence of Michelle’s medical expenses. Any future medical expenses are subject to s. 7 of the Guidelines. Mr. Levin will be required to pay 66.1% as noted above. This request is not allowed.
Life Insurance to Secure Support
239Ms. Levin requests that Mr. Levin purchase life insurance in the amount of $500,000 to secure his support obligations to Michelle and her. I am satisfied that this is appropriate. This issue may be considered upon review because Mr. Levin’s spousal support obligation may change at that time.
SUMMARY
240Mr. Levin shall pay to Ms. Levin support arrears of $1,215 for 2016.
241Mr. Levin shall pay to Ms. Levin support arrears of $35,026.79 for 2017.
242Mr. Levin shall pay to Ms. Levin support of $2,511 per month beginning on January 1, 2018. He shall pay arrears of $19,250 for the period January 1, 2018 to November 30, 2018.
243He shall continue to pay support of $2,511 per month until such time as support is reviewed.
244Mr. Levin shall pay to Ms. Levin $2,878.92 for 2016 s. 7 expenses.
245Mr. Levin shall pay to Ms. Levin $3,490.13 for 2017 s. 7 expenses.
246Mr. Levin shall pay to Ms. Levin $2290.42 for s. 7 expenses from January to November 2018 inclusive.
247Mr. Levin shall pay to Ms. Levin $208.22 monthly for s. 7 expenses commencing on January 1, 2018 until support is reviewed. The arrears up to November 30, 2018 are $2,290.42. The amount of $208.22 shall be added to the monthly support amount of $2,511, resulting in $2,719.22 per month, and shall enforced by the Director of the Family Responsibility Office.
248Ms. Levin shall pay to Mr. Levin $36,519.51 to equalize the net family property.
249Mr. Levin shall pay to Ms. Levin $5,626.95 as a post separation adjustment regarding the money that he withdrew from their joint account.
250Mr. Levin shall pay to Ms. Levin $400 as a post separation adjustment regarding the cruise ticket.
251Mr. Levin shall pay to Ms. Levin $5,100 regarding the withdrawals that he made from the line of credit registered against matrimonial home.
252Mr. Levin shall obtain and maintain a policy of life insurance in the amount of $500,000, as defined in the Insurance Act, and shall designate Ms. Levin and Michelle as the sole irrevocable beneficiaries to secure the payment of child and spousal support. He shall designate Ms. Levin as the irrevocable trustee for the benefit of Michelle. He shall provide proof of the insurance policy to Ms. Levin within 90 days of the release date of these Reasons.
253Mr. Levin shall provide Ms. Levin with written proof that such insurance is in place within 90 days and on within the one year anniversary date from when written proof is provided and for each following year for as long as he is required to pay child and spousal support. If Mr. Levin fails to obtain and maintain such insurance, payment of support shall be a first charge upon his estate.
254The preservation orders relating to the matrimonial home, including the order of Justice Nelson dated September 22, 2016, and Justice Kaufman dated March 22, 2017, shall be terminated.
255The parties have lived separate and apart for almost three years. Ms. Levin may proceed with a divorce on an uncontested basis.
256The parties shall provide to each other updated income information within 30 days of the anniversary date of these reasons.
257If there are any mathematical errors in these Reasons, the parties may provide letters to the Barrie Trial Co-ordinator to my attention within three weeks of the release date of this decision.
COSTS
258If the parties cannot agree on costs, Ms. Levin shall serve and file written submissions not to exceed 8 pages of text with 1.5 spacing, regular margins and 14-point font. She shall also include a bill of costs, copies of any offers to settle, and copies of receipts for disbursements incurred from third parties, all within 3 weeks of the release date of this decision. Mr. Levin shall provide similar responding submissions within two weeks of receipt of Ms. Levin’s submissions. Ms. Levin may provide brief reply submissions within one week of service of Mr. Levin’s submissions. All submissions shall be provided to the Barrie Trial Co-ordinator to the attention of my assistant.
Madam Justice M.E. Vallee
Date: November 14, 2018
Footnotes
- After his counsel made a preliminary objection and raised the issue that the document set out promises but was not an agreement.
- Mr. Levin resigned from Silfab in November 2016 and began working through Westa in December 2016.
- Mr. Levin explained that Israeli citizens must make payments to the NII. It covers medical insurance, a pension, and the military, among other things.
- The order states that he shall pay $1,157 and $761 per month for spousal support and child support respectively. The total amount is $1,918.
- 1999 715 (SCC), [1999] 1 S.C.R. 420.
- 2018 ONSC 3604.
- 2017 ONSC 5182.
- 2013 ONSC 2960.
- 2013 ONSC 5500.
- 1995 CarswellMan 498 (C.A.), [1995] M.J. No. 385.
- 2012 ONSC 1164.
- 2008 ONCA 11.
- The document also shows that an acute care nurse could earn $30.17 per hour. A nurse with 25 years’ experience could earn $40 per hour.
- 2010 BCCA 452.
- Ms. Levin provided a doctor’s note confirming her depression and difficulty with concentration, among other things. He recommended that she withdraw from the program for awhile and begin taking medication.
- Ms. Levin stated that prior to separation, she and Michelle had health coverage through Mr. Levin’s employment. After separation, it did not continue because he did not want to pay for it.
- In 2016, she declared $5,500 in gross rental income from the basement apartment in the matrimonial home. She did not declare any income from the investment property, which was jointly owned until October 2016. Mr. Levin declared $8,505 in gross rental income from the investment property, which equates to roughly three months of income. It appears that neither party declared the income from January to July.
- Ms. Levin produced medical evidence with respect to her heart, but it did not connect the condition with working too much.
- Mr. Levin declared deductions of $14,172.03 for legal, accounting, and other professional fees, and $8,461.15 for interest on his 2015 Income Tax Return.
- For items other than credit card payments.
- The conversation was in Russian. Ms. Levin provided a transcript and a certified translation.
- As noted above, in 2015, when Ms. Levin was a joint title holder, Mr. Levin declared all of the gross rental income. After deducting expenses, the net income claimed was $482.61.
- Although the deposits to the corporation’s bank account total $91,205.
- Ms. Levin’s evidence is that she withdrew $45,000 from the parties’ joint account shortly after separation. She returned $5,000. She subsequently deposited funds to pay for ongoing expenses. She has accounted for these funds in her net family property statement.
- 2010 ONSC 1702 paras. 50 and 51.
