Court File and Parties

Court File No.: 23210/01 Date: 2018-11-21

Ontario Superior Court of Justice

Between:

Ian David Kirby, Applicant (Melissa Fedsin, for the Applicant)

- and -

Katherine Lynn Kirby, Respondent (Self-represented)

Heard: October 22-25, 29-31, November 1-2 and 5, 2018

Reasons for Judgment

Conlan J.

I. Introduction

A Very Difficult Case

[1] This proceeding has existed for 17 years. That is not a misprint. I repeat, this proceeding has been around for three years short of two decades.

[2] Let this be a lesson for us all. We must not allow something like this to occur. The interests of justice require a reasonable pace of litigation, not only in criminal law, but in family cases as well.

[3] Litigants cannot be permitted to rest on temporary orders as de facto final results. Whether litigants want it or not, in my view, the Court ought to dig out these relics, dust them off and show them to someone who can make a final decision on all outstanding matters.

[4] Otherwise, the trial judge is left with a mess. Faded memories. Lost records. Dead witnesses. And so on.

A Very Difficult Litigant

[5] Add to the recipe for disaster one further ingredient – a self-represented litigant. One who manages to try the patience of the Judge to a degree that is beyond description. Frequent interruptions of others who are speaking, including myself. Huffs and puffs from the counsel table while others are testifying. Sighs. Shaking of the head in disgust or disagreement. Verbal outbursts, while seated, from the counsel table while others are testifying. A ringing cellular telephone in the Courtroom, more than once. Documents that cannot be found. Special (and unreasonable) requests for things like immediate recordings or transcripts of entire day’s proceedings and the ability to stay inside the sealed Courtroom after hours to work. Crying. Complaining about having no legal representative. Complaining about having too many boxes of documents. Complaining about not having enough time to prepare. Engaging in frequent lengthy diatribes with the Court. Asking witnesses irrelevant questions. Asking witnesses the same question over and over and over again. Asking convoluted, incomprehensible, compound, disjointed and extremely lengthy questions in cross-examination, after receiving much assistance from the Court to try to avoid that. Getting bogged-down in the tiniest of details from eons ago, despite repeated warnings from the Court to focus on the key issues at trial. Giving evidence from the counsel table. Editorializing during cross-examination of opposing witnesses. Failing or refusing to comply with repeated suggestions by the Court as to what issues to focus on in cross-examination. Failing or refusing to comply with clear and repeated warnings from the Court, to the point where costs were ordered, twice, to sanction verbal outbursts. An opening statement that needed to be rescued by this Court in order to have any relevance at all. Evidence-in-chief from the witness box that required constant reminders by this Court to stay on focus and to talk about facts that are relevant to the issues to be decided. Evidence in cross-examination that was long-winded, repetitive, and often delivered with a snarky and sharp tone, despite a concerted effort by counsel for the opposing party to be polite and straightforward. Direct examinations that meandered and were chock-full of improper questions. Being late for Court. Flagrantly disobeying rulings of the Court by, for example, continuing to speak about something in the witness box that the Court had just ruled was improper and shall not be discussed. And, finally, despite this Court spending more than one hour discussing the purpose of a closing address and answering numerous questions on that topic, and after having the ensuing weekend to prepare the closing argument, delivering one that was largely irrelevant and improper.

[6] The trial was exhausting. It cannot be described in words; thankfully, the transcript will reveal the entire story. It was an excruciating experience for everyone involved. I have never witnessed anything like it. Even the Court’s attempt to extract from the self-represented litigant what she ultimately wants at the end of the day was an exercise in near futility.

The Parties

[7] The self-represented litigant mentioned above is the Respondent wife, Katherine Lynn Kirby (“Katherine”). The Applicant husband, Ian David Kirby (“Ian”), was married to Katherine in November 1982. They lived together for some period of time before the marriage; Katherine testified that it was 2.5 years. The parties separated in February 2001. Ian started the Application in 2001. Actually, the case is so old that it began with a document that exists only in the annals of Ontario family law history – a Petition for Divorce.

The Case Goes Quiet

[8] The judges who handled the file for the first few years, all respected jurists well-known to us in the Central West Region, are all now retired. Justice Langdon was the principal architect of the Orders booklet between 2001 and 2004. Then it appears that the file was dormant for many years, ultimately resurrected in 2016, then shepherded through some Conferences and other appearances and eventually being tried in front of a recently transferred judge (myself) during the blitz (no pun intended) trial sittings in Milton in October 2018.

The Trial

[9] The trial lasted ten days. It ought to have been completed in half that time, but for the difficulties experienced with Katherine. For the Applicant, I heard testimony from Ian, Jacob Asparian (“Asparian”), and Sandy Hatzis (“Hatzis”). For the Respondent, I heard testimony from Katherine, Dr. Kristin Pandke (“Pandke”), and Peter Martin (“Martin”). Numerous Exhibits were filed throughout the trial.

The Issues

[10] The issues are: (i) a divorce, (ii) spousal support, retroactive and ongoing, (iii) child support, including section 7 expenses, retroactive and ongoing, (iv) equalization of net family property (including Ian’s pension), (v) occupation rent, (vi) the net proceeds of sale of the matrimonial home, and (vii) costs and interest.

The Positions of the Parties

[11] In terms of the positions of the parties, while this Court certainly does not expect that Katherine would have presented to the Court the type of detailed draft Final Order that Ian’s counsel presented, I did think that it would be a little easier to elicit from Katherine what relief she actually wants. Eventually, I understood that she wants her spousal support increased from the current $1000.00 per month, and she wants an equalization payment of $375,000.00 (according to Katherine, her share of the net value of the matrimonial home plus her share of Ian’s pension).

[12] During her opening statement, this Court had to intervene because to sit silent would have punished Katherine in the sense that I would have been left totally ignorant of what Katherine wants and what issues she thinks are important to decide. I used Ian’s draft Final Order and asked Katherine to give me her position on each item, one by one.

[13] During that exchange, she told this Court the following. She agrees with getting divorced. She wants any outstanding costs awards payable by her offset against the final figure of who owes what to who. She seeks an equalization payment from Ian, in some unspecified amount (presumably, the figure quoted above). She disputes any claim by Ian for occupation rent. She seeks money from Ian to reimburse her for certain post-separation expenses that she incurred, in some unspecified amount. She agrees that she owes some back child support, in some unspecified amount. There should be no ongoing child support payable by either party. Regarding section 7 expenses, she might owe something (unspecified) related to the past but nothing on a go-forward basis. She seeks ongoing spousal support of $2000.00 per month until she turns 65 years old, plus back spousal support in some unspecified amount.

[14] In her closing argument, Katherine started with a script that was very well written, using sophisticated language and a rich vocabulary. She then went off-script, to her detriment. In any event, she said nothing about the divorce, asked this Court to dismiss Ian’s claim for occupation rent, asked this Court to award her about $90,000.00 as Ian’s share of household expenses paid by her post-separation, said that perhaps retroactive child support owed by her could be offset against retroactive spousal support owed by Ian, urged this Court to accept her expert’s evidence on the issue of pension valuation, argued that no income should be imputed to her for purposes of child or spousal support, and pleaded for continuing spousal support of $2000.00 per month.

[15] A bird’s-eye view of the trial reveals that what Katherine really wants is something that this Court cannot give to her. She wants recognition that she was the victim of what she alleges was relentless abuse at the hands of Ian. She wants a remedy for Ian having allegedly destroyed her original work on a computer, just prior to separation. And she wants the matrimonial home back. The latter is impossible as the house was sold under Court Order. The business about the computer is very dated and not even before this Court in the pleadings. The issue about the alleged abuse is not going to be resolved by this Court.

A Brief Summary of the Evidence: The Basic Facts

[16] To round out the basic familial facts, Ian is now 64 years old (it is shocking to note that he was in his forties when the parties separated and when this proceeding was commenced). Katherine is currently 60 years old. The parties have four children – K. (she is 28 years old), G. (he is 22 years old), F. (he is 21 years of age), and C. (F.’s twin brother).

[17] K. is a university graduate and currently lives independently. The other three children are in university engineering programs. They live with Ian when not away at school.

[18] Ian has an apartment in Oakville, Ontario. Katherine lives with her sister. Ian is educated as an engineer and also has an MBA university Degree. He worked at Benson & Hedges from 1980 until 2016. He lost that job in May 2016 and began working with Carillion Canada in August 2017, currently earning just shy of $100,000.00 per year, gross. He plans to retire at age 68. He is currently receiving pension payments from his previous employment - $2600.00 monthly, taxable. In 2004, to avoid bankruptcy, he went through a Consumer Proposal with BDO Dunwoody, the terms of which were fully satisfied by him as of May 2008.

[19] The matrimonial home, a townhouse in Oakville, has been sold. The net proceeds of sale, about $355,000.00, are being held in trust.

[20] There is no mystery to Ian’s income in the years since 2001. We know from the evidence at trial what his line 150 total gross income was every year between 2001 and 2017.

[21] Katherine earned a Diploma in word processing from Sheridan College (two years, completed in 1983), then an Honours English Degree from McMaster University (four years, completed in 1989), and then she graduated from teacher’s college at the University of Toronto in 1991. She has limited teaching experience with Sheridan College and with the Peel Region Board of Education, and she had sporadic employment as a supply teacher with the Halton Board of Education between 2003 and 2015. In the past, between 1985 and 1999, she also worked as an administrative assistant for an aerospace company and then as a typist for Benson & Hedges (where Ian worked).

[22] Katherine has never been ordered to pay any child support or to contribute to any of the children’s expenses, whether before or since an Order was made in 2004 that Ian have custody and primary residency of all four children. For nearly 17 years now (almost the length of the parties’ relationship), Katherine has received spousal support from Ian. $1000.00 per month, for the vast majority of that time period (initially, $1750.00 monthly per the Order of Langdon J. made in November 2002, and then reduced to $1000.00 monthly by the Order of Justice Langdon made in September 2003 due to the imputation of income to Katherine of $10,000.00 per annum). There are no arrears of spousal support. The total sum paid by Ian since 2001 is about $250,000.00.

[23] By 2006, the mortgage on the matrimonial home was paid-off. Further, in 2005/2006 and in 2009, Katherine received about $100,000.00, total, from her late mother’s estate. In late 2006, she inherited about $7000.00 from her aunt, who had passed away. In addition, between the end of 2014 and March 2017, Katherine received close to a half-million dollars ($480,249.46, to be exact), inherited from her late father. Today, Katherine has about $290,000.00 in the bank.

[24] If all of this strikes the reader as very odd, it is. But four important points need to be added to the factual matrix. First, Katherine is very unwell. She has been for many, many years, both physically and mentally. Multiple surgeries. Multiple motor vehicle accidents. A history of mental illness. Whether her medical issues justify her being unemployed for such a lengthy period of time is an open question, however, it is worth noting that her family physician wrote a letter not long ago which expressed the opinion that Katherine was, at that time, mentally unfit for trial after being hospitalized in a psychiatric facility.

[25] Second, notwithstanding that there have been increases in Ian’s income over the years, the monthly spousal support award in favour of Katherine has never risen (it has remained at $1000.00 per month since September 2003).

[26] Third, Katherine states that the matrimonial home was in terrible condition when she took it over, post-separation, was very expensive for her to maintain, and remained in horrible condition as of 2017. Of course, Katherine seems to have overlooked the fact that she was ordered by Justice Langdon in November 2002 to pay the “mortgage, insurance, utility, maintenance and repair costs and all municipal taxes associated with the matrimonial home”.

[27] Fourth, Katherine states that she has contributed, voluntarily, to the welfare of the children, post-separation. She paid no child support, and she has no dollar figures for what expenses she contributed towards, but she testified that she paid for various items like trips, clothing, gifts, birthday parties, and so on.

[28] Returning to the issue of her health, Katherine testified that she endured years of abuse at the hands of Ian, emotional, physical and sexual. She stated that she first saw a psychiatrist in 1991 or 1992. She has had many appointments with psychiatrists since. She was hospitalized earlier in 2018 for a mental health crisis and due to concerns about a possible suicide attempt. Currently, she takes an anti-depressant and sleeping medication. She walks with the assistance of sticks or a cane. In her testimony, she outlined for this Court a litany of unfortunate events and medical set-backs over the last twenty years or so: at least five motor vehicle accidents, multiple abdominal surgeries, multiple eye surgeries, ongoing vision problems, an assault perpetrated against her by a student in the classroom, irritable bowel syndrome, sleep apnea, double hernia surgery, chronic pain, a severe ankle sprain, surgery to correct a deviated septum, nightmares, anxiety, panic attacks, sleeping problems, incidents of uncontrollable screaming and shaking at home, episodes of her acting like two different persons at home (split personality), visits at home from the police, chest pain, multiple colonoscopies, and so on. That is a partial list, only.

[29] One might wonder why Katherine is not in receipt of disability benefits from the government. Katherine testified that her family doctor talked to her about “ODSP” about a year ago, however, Katherine decided not to pursue it because she did not want to be a “charity case”.

The Evidence at Trial from Non-Parties

[30] Before leaving these introductory and background remarks, a few words are required about the witnesses, besides the parties themselves, who testified at trial.

[31] Asparian gave expert opinion evidence in the field of real estate market rental values. His evidence is relevant to Ian’s claim for occupation rent due to Katherine’s long-time exclusive possession of the matrimonial home in Oakville. Asparian is an experienced realtor who has worked in the industry for twelve years. He has been a licensed broker for ten years. He has many years of practice managing property, including rental properties in the Greater Toronto Area. His report, Exhibit 8, outlines the rent that the Oakville property would likely have generated for each year that Katherine exclusively possessed it. Asparian has never done a report like that before. In cross-examination by Katherine, he was asked to assume a lengthy list of alleged defects that the home had in 2017, and he was asked to review a series of photographs that were allegedly taken of the home in late 2002. On those assumptions, Asparian testified that, without any work done, the home would not have been able to be rented out at either of those material times.

[32] Hatzis was the real estate agent who sold the parties’ matrimonial home in Oakville, which sale was Court-ordered at the request of Ian and did not require the participation of Katherine regarding the listing.

[33] Hatzis described there being three offers – (i) $410,000.00, unconditional, (ii) $411,000.00, conditional, and (iii) $412,000.00 from Katherine herself, contingent on the proceeds being held in trust pending a resolution of the rest of the litigation between the parties. The first offer described above was accepted by Ian, and the house sold for $410,000.00.

[34] Hatzis described Katherine as being very difficult to deal with. Katherine placed restrictions on times for showings of the house, refused open houses, refused to have a sign put up, refused the advice of Hatzis to try to sell the property “as is”, and so on. Katherine also lodged a formal complaint against Hatzis with the governing body for real estate agents, which complaint was dismissed and which was the only one ever received by Hatzis, whether as a real estate agent or in her former career as a lawyer.

[35] Pandke has been Katherine’s primary care physician since March 2016. She is a family physician who has been practicing medicine since October 2015.

[36] From her own personal observations of Katherine over the course of many, many office visits since March 2016, and from her review of Katherine’s medical records, Pandke has authored numerous letters about Katherine and her health, both physical and mental. Most recently, in July 2018 (Exhibit 22), Pandke wrote that Katherine “remains unfit for court”; she was hospitalized in May 2018 for a potential overdose which led to a mental health crisis; she has been diagnosed with adjustment disorder, situational crisis, and mixed personality traits; she suffers from anxiety; she may suffer from post-traumatic stress disorder; her thought process is “tangential” and her insight “poor”; she has “difficulty focusing”; she has been referred for a formal psychiatric evaluation; and she has extensive physical ailments.

[37] In her oral testimony, Pandke confirmed that Katherine suffers from panic attacks and depression. She has a long history of chronic pain, and that pain is linked to her mental health difficulties. She has been prescribed anti-psychotic medication. Her age is certainly not an aid to recovery. The litigation and the Court proceedings are likely a cause of Katherine’s further mental health deterioration in 2017 and 2018. For her own interests, according to Pandke, this case must come to an end.

[38] Pandke testified that she has not seen any sign that Katherine is malingering. Although Pandke cannot say for certain that Katherine is medically unfit to work, without completing a formal psychiatric evaluation of her (which process has started), Pandke did testify that Katherine’s mental health is very unstable and certainly would adversely affect her ability to work.

[39] Pandke has made a recent referral of Katherine to The Centre for Addiction and Mental Health.

[40] As of now, no determination has been made that Katherine is permanently disabled. Nor has Pandke ever thought that Katherine is incapable of making decisions such that The Office of the Public Guardian and Trustee ought to be involved.

[41] Martin has been doing actuarial work for some 38 years. He was accepted by this Court as an expert witness in the field of pension valuation. To the benefit of Katherine, he was also allowed to provide evidence (though not as an expert) relevant to support calculations that Katherine appeared otherwise incapable of providing.

[42] Martin was able to explain how his work differs from the figures relied upon by Ian in, for example, his recent Financial Statement sworn on October 10, 2018.

[43] According to his report marked Exhibit 23, Martin has calculated the current value of Ian’s pension with Benson & Hedges to be $505,730.00, before tax ($405,594.00, after tax), using a tax rate of 19.8% and assuming interest or investment returns since the date of separation. Katherine’s one-half interest would be $252,866.00, before tax, and $202,798.00, after tax.

[44] Martin has calculated the defined benefit portion of Ian’s pension to be $21,689.00 at separation. That is compared to a figure of $17,323.00 found at page 6 of Ian’s most recent Financial Statement.

[45] According to his report marked Exhibit 24, Martin has put forward several scenarios, using different input values (for Katherine’s income, as just one example), and employing many variables (low, mid or high-level spousal support, for example), to arrive at what amount Ian owes Katherine for retroactive spousal support between April 2001 and December 2017. In some scenarios, that figure is more than $200,000.00.

[46] Martin candidly acknowledged during his testimony at trial that his entire report marked Exhibit 24 depends heavily on the incomes used for the parties.

[47] Martin was careful in his testimony to make clear that he was expressing no views on the legal issues associated with spousal support, such as entitlement.

II. Analysis

[48] I repeat, the issues are: (i) a divorce, (ii) spousal support, retroactive and ongoing, (iii) child support, including section 7 expenses, retroactive and ongoing, (iv) equalization of net family property (including Ian’s pension), (v) occupation rent, (vi) the net proceeds of sale of the matrimonial home, and (vii) costs and interest.

[49] Let us deal with the issues, one by one.

Divorce

[50] Ms. Fedsin argued that the parties ought to be divorced, effective immediately. Katherine said nothing about that during her closing address, although she stated earlier in the trial that she fully supports the divorce.

[51] Thus, unopposed, this Court orders that the parties are entitled to a divorce. Either party may pay the necessary fee and ensure that the required paperwork is filed with the Court office. This Court orders that whichever party pays any fee for the divorce shall be reimbursed, forthwith, half that amount by the other party, which reimbursement may be taken from the net proceeds of sale of the matrimonial home currently being held in trust. Finally, given the evidence that was adduced during the trial, no Affidavit is required to obtain the divorce; this Court orders that the said requirement shall be dispensed with.

Spousal Support

[52] Regarding spousal support, there are live issues in this case about entitlement on the part of Katherine, imputation of income to Katherine, duration, and quantum. There are also two time periods to consider – the past (retroactive support), and the future (ongoing support).

[53] Ms. Fedsin argued that Katherine has been intentionally unemployed or underemployed for many years, and thus, a gross annual income of $50,000.00, minimum, ought to be attributed to her, for purposes of both spousal and child support. Further, it was submitted that spousal support ought to be terminated because there is no current entitlement to it on the part of Katherine.

[54] Katherine disputes any effort to impute income to her, and she requests retroactive spousal support to account for post-separation increases in Ian’s gross annual income, and she wants future support at the rate of $2000.00 per month.

[55] Ian’s position is that, if he owes anything for retroactive spousal support, which is not admitted, then that ought to be offset against what Katherine owes for retroactive child support (excluding section 7s), resulting in a “wash”. In her closing address, Katherine acknowledged that such an offset may be appropriate.

[56] Although, in many cases, it is more desirable for the issue of equalization of net family property to be dealt with before spousal support, because an equalization payment may affect the spousal support to be ordered, in this particular case, it is not necessary to follow that approach.

[57] First, let us deal with the imputation of income argument. In terms of the law, whether looked at in the context of spousal support or child support or both, this Court is required to consider the following three questions: (i) is/was Katherine intentionally underemployed or unemployed, (ii) if so, is/was the intentional underemployment or unemployment required by virtue of her reasonable educational or health needs, and (iii) if the answer to question number 2 is negative, what income is appropriately imputed to Katherine in the circumstances? Drygala v. Pauli, at paragraph 23.

[58] With regard to the chronology, the parties separated in February 2001. By then, it had been about ten years since Katherine completed her last formal program of education (teacher’s college at University of Toronto). There is a vacuum in the evidence presented at trial as to what Katherine was doing for employment, if anything, between February 2001 and November 2003. We know that Katherine was employed with the Halton Region School Board between November 2003 and July 2015 (Exhibit 2, tab 6). We know, further, that Katherine worked very little during those years, as evidenced by her income tax records (Exhibit 11). Finally, we know that Katherine has not worked at all since July 2015.

[59] “Intentionally”, as that word appears in the test for imputation of income, means a voluntary act. Katherine is/was intentionally underemployed or unemployed if she chooses/chose to earn less than what she is/was capable of earning or if she chooses/chose to not work at all when she is/was capable of earning an income, respectively. Drygala, supra, at paragraph 28.

[60] I am not satisfied on balance that Katherine has been intentionally underemployed or unemployed ever since the parties separated.

[61] On the evidence before this Court, I find that she was intentionally unemployed between February 2001 and November 2003. As a university graduate, a qualified teacher, and a lady who had worked as an administrative assistant in the past, she was capable of earning some employment income during that time period. It must be taken that she “chose” not to work.

[62] Was that by virtue of Katherine’s reasonable educational or health needs? I think that it was. I accept Katherine’s evidence that the parties’ separation in February 2001 caused her a great deal of stress and anxiety, and that she was involved in two motor vehicle accidents in 2001 and 2002, respectively, which only exacerbated her emotional difficulties and which adversely impacted her physical health.

[63] Thus, aside from the Order made by Langdon J. in September 2003 (attributing a $10,000.00 gross annual income to Katherine), which I would not disturb, I decline to impute to Katherine any additional income for the time interval between February 2001 and November 2003.

[64] The next time period to consider is that between November 2003 and July 2015, when Katherine was employed on an occasional basis as a supply teacher with the Halton Region School Board. By then, the stress and anxiety caused by the parties’ separation ought to have dissipated to some degree. In addition, the next material health setback for Katherine did not occur until the end of 2004, at which time she underwent abdominal and eye surgery in consecutive months in November and December.

[65] Yet, for the tax year 2004, Katherine’s T4 earnings from employment were a measly $5746.00 (Exhibit 11). In the ensuing years, those earnings were $15,902.00 (2005), $20,513.00 (2006), an uncertain sum in 2007, $19,519.00 (2008), $18,441.00 (2009), $13,900.00 (2010), $14,438.00 (2011), $10,619.00 (2012), $8689.00 (2013), $6498.00 (2014), and $453.38 (2015).

[66] These are not the employment earnings that one would reasonably expect from a qualified teacher, university graduate and former administrative assistant.

[67] I have no hesitation finding that Katherine was intentionally underemployed between November 2003 and July 2015.

[68] Was that by virtue of Katherine’s reasonable educational or health needs? Again, I think that it was. I accept Katherine’s evidence that she suffered a series of significant health setbacks during the time period in question: abdominal surgery in November 2004, eye surgery in December 2004, chronic back pain that required a formal assessment in 2006, another eye surgery in 2007, another motor vehicle accident in 2007 which necessitated lengthy physiotherapy and rehabilitation, corrective abdominal surgery in 2007, an assault by a student at school in 2008, further chronic pain assessments in 2009 and 2010, cataracts discovered in 2011, another motor vehicle accident in 2012, extensive dental work and surgery in 2012, irritable bowel syndrome diagnosed in 2012, sleep apnea diagnosed in 2014, a hernia diagnosed in 2013, and more eye surgery in 2015. That is only a partial list.

[69] I agree with Ms. Fedsin that Katherine said things in cross-examination at trial that were troubling and which weigh in favour of imputing income to her, such as her declaration that she persisted with the Halton Region School Board, despite the few hours worked, because she did not want to go back to administrative work.

[70] Notwithstanding that, I am not prepared to impute to Katherine any additional income for the time interval between November 2003 and July 2015.

[71] That leaves the final time period to consider, that between July 2015 and now. Katherine has not worked at all since July 2015, and given her background, education and qualifications I conclude that she has been intentionally unemployed since that time.

[72] Has that been by virtue of Katherine’s reasonable educational or health needs? Once again, I think that it has been. I accept Katherine’s evidence that her medical crises have continued over the past three plus years – including but not limited to multiple orthopaedic consultations in 2015 and 2016, a severe ankle sprain in 2016 that required a cast, surgery for a deviated septum in 2016, multiple hernias diagnosed in 2016, hernia surgery in 2017, another motor vehicle accident in 2017, and a complete mental breakdown in 2018 (confirmed by Pandke).

[73] Frankly, I had the opportunity to observe Katherine closely for ten days of trial. The person that I saw is not capable of working any job. Nobody would hire her.

[74] I am not prepared to attribute to Katherine any income since July 2015 until now or on a go-forward basis. She is currently unemployable. Pandke, whose evidence I accept, did not say that explicitly, but that is the conclusion of this Court based on the totality of the evidence adduced at trial.

[75] I repeat, Ms. Fedsin argued that Katherine has been intentionally unemployed or underemployed for many years, and thus, a gross annual income of $50,000.00, minimum, ought to be attributed to her, for purposes of both spousal and child support. I disagree with that submission.

[76] Further, it was submitted on behalf of Ian that spousal support ought to be terminated because there is no current entitlement to it on the part of Katherine. I disagree with that submission as well.

[77] With her myriad of physical health problems, her emotional fragility, her recent hospitalization after a total mental breakdown and suspected suicide attempt, and her current inability to work in any capacity, notwithstanding her sizeable inheritances received in recent years, I find that Katherine remains entitled to spousal support on a need basis.

[78] As indicated above, Katherine requests retroactive spousal support to account for post-separation increases in Ian’s gross annual income, and she wants future support at the rate of $2000.00 per month.

[79] Ian’s position is that, if he owes anything for retroactive spousal support, which is not admitted, then that ought to be offset against what Katherine owes for retroactive child support (excluding section 7s), resulting in a “wash”. In her closing address, Katherine acknowledged that such an offset may be appropriate.

[80] On the issue of retroactive support, I agree with Ian’s alternative position and with Katherine’s alternative position, both of which amount to this Court treating as a “wash” any spousal support that Ian may owe and base child support owed by Katherine.

[81] The latter is a certainty. Even with her limited employment income each year since separation, Katherine ought to have been paying some child support. The extreme example is the year 2006. That year, Katherine earned more than $20,000.00 in employment income. Ian had sole custody and primary residency of all of the children. Yet Katherine paid not a cent in base child support.

[82] For that reason alone, Katherine does not come to this Court with clean hands in asking for retroactive increases in monthly spousal support.

[83] In addition, Katherine has done nothing to advance that request since September 2003. In the absence of any appeal or review or variation of Justice Langdon’s Order that she receive $1000.00 per month in spousal support, a litigant (Katherine) cannot come to Court fifteen years later and expect to receive a patient ear from the trial Judge.

[84] Finally, things have not been nearly as rosy for Ian as Katherine would want this Court to believe. He had to live in a small apartment with all of the children. He had to issue a Consumer Proposal to avoid bankruptcy. He had to work his tail off to support the children, with precious little financial assistance from Katherine. He has already paid a quarter-million dollars in spousal support.

[85] Katherine’s claim for retroactive spousal support is dismissed. Going forward, however, given this Court’s finding that she continues to be in need of support, Katherine’s monthly award will not be terminated at this time. I will accede to her request that she continue to receive spousal support until she is 65 years old.

[86] This Court orders that Ian shall continue to pay to Katherine spousal support, in the amount of $1000.00 per month, until March 25, 2023. On that date, Katherine’s 65th birthday, the spousal support payments shall terminate.

[87] I decline to increase Katherine’s spousal support award to $2000.00 per month, as requested by her. She has presented no evidence whatsoever to support that submission. I have no idea how she came up with the $2000.00 per month figure. Besides, she has currently about $290,000.00 in savings in the bank. She has the potential of qualifying for ODSP benefits. In all of the circumstances, the $1000.00 per month that she has been budgeting for over the last fifteen plus years is sufficient to address her need.

[88] Before leaving this issue of spousal support, I wish to say something about Martin’s evidence. I found Martin to be an excellent witness. He testified in a clear and simple manner, despite at times being asked nearly incomprehensible questions by Katherine in direct examination. He was careful to not overstep his bounds. Had this Court decided to adjust spousal support retroactively, Martin’s report (Exhibit 24), including the attached DivorceMate calculations, would have been quite helpful to this Court. Given the analysis above, however, Martin’s evidence about support is immaterial.

Child Support, including Section 7 Expenses

[89] Regarding child support, there are live issues in this case about imputation of income to Katherine, retroactive support (including section 7s), and ongoing support (including section 7s).

[90] This Court has detailed calculations and support documentation from Ian related to section 7 expenses. There is nothing from Katherine except her testimony that she contributed an unknown amount of money over the years for things that benefitted the children, such as trips and clothing.

[91] Katherine argued that the children are all now independent and, thus, there ought to be no future child support payable by either party.

[92] On the issue of imputation of income to Katherine, for the reasons outlined above in dealing with spousal support, I decline to attribute any income to Katherine, either on a retroactive or go-forward basis, for purposes of child support.

[93] With regard to Ian’s claim for retroactive base (excluding section 7s) child support payable by Katherine, as indicated above in these Reasons, that claim is dismissed on the basis of the parties’ alternative positions which both acknowledge this Court’s option of treating retroactive spousal support that may be owed to Katherine as being offset against retroactive child support owed by Katherine.

[94] There are two things remaining: retroactive section 7s and future child support.

[95] Regarding the former item, I agree with Ms. Fedsin that Ian has filed an extremely thorough brief that proves all of the section 7s that he is claiming (Exhibit 3). Having said that, his request for reimbursement from Katherine is dismissed, for two reasons.

[96] First, just as this Court frowned upon Katherine’s attempt to extract retroactive spousal support fifteen years after an Order was made that she effectively sat on, I cannot condone Ian’s attempt to collect on expenses that were, in many cases, paid years and years ago and during a time that the file was completely dormant. What is good for the goose has to be good for the gander.

[97] Second, Ian’s claim for reimbursement from Katherine of $22,878.23 (Exhibit 4) is premised on imputation of income to Katherine, which premise this Court has not accepted.

[98] With regard to future child support, including section 7s, that claim made by Ian is also dismissed. It is clear from the language of the draft Final Order filed by counsel for Ian (Exhibit 4, clauses 7 and 9) that his request assumes that income will be imputed to Katherine. That assumption is faulty.

[99] As well, the children are all now nearly independent, thanks largely to Ian. The window for ongoing child support is closing quickly, and I am not sure that ordering someone like Katherine, with all of her problems, to pay fairly nominal child support for a relatively short period of time is reasonable.

Equalization of Net Family Property

[100] This issue includes a consideration of what to do about Ian’s employment pension, and the question of whether Katherine should receive an unequal distribution of net family property in her favour.

[101] Ian has filed a very detailed net family property brief. In closing submissions, Ms. Fedsin argued that there is no equalization payment owing by either party to the other.

[102] Katherine filed no net family property statement and suggested no figure. As for the pension, Katherine wants this Court to accept the opinions expressed in Martin’s most recent report.

[103] On this issue, I agree almost entirely with Ms. Fedsin and her client.

[104] In the absence of any equalization calculation submitted by Katherine, and no Net Family Property Statement filed by her, and no proper Financial Statement filed by her (Exhibit 10 is anything but a proper Financial Statement), and no evidence from or on behalf of Katherine that challenges in any material way anything contained in Exhibit 1 (Ian’s detailed property brief), this Court is left with Ian’s Net Family Property Statement and its calculation that he owes to Katherine the sum of $4824.92 (tab 1 of Exhibit 1).

[105] In closing submissions, Ms. Fedsin urged this Court to reduce that figure to zero on the basis that the $10,000.00 loan received from Katherine’s father (see page 5 of tab 1 of Exhibit 1) ought to be deleted from one side of the ledger, resulting in a new equalization payment figure of nil. With respect, I think that the evidence at trial pertaining to that loan is more consistent with Ian’s original calculation. Although the two Promissory Notes contained at tab 17 of Exhibit 1, totaling $10,000.00, are in the name of Ian alone, I find as a fact that the said advances were joint liabilities that were owed by both spouses on the valuation date.

[106] Hence, this Court orders that Ian shall pay to Katherine the sum of $4824.92 on account of equalization of net family property. That shall be paid forthwith, out of Ian’s share of the net proceeds of sale of the matrimonial home currently being held in trust.

[107] As for Martin’s most recent report about Ian’s pension, Exhibit 23, that is relevant only in terms of the $21,689.00 figure. There is no pleading by Katherine before this Court that requests that Ian’s pension be dealt with in any way other than as part of the equalization scheme, and there is no basis for Katherine’s accusations throughout the trial that Ian has somehow intentionally delayed the valuation of his pension so as to cheat Katherine out of interest or investment income that she could have realized on her share. It has always been understood, at least in terms of the pleadings, that we were concerned with the defined benefit valuation of Ian’s employment pension as of the date of separation.

[108] Ian’s Net Family Property Statement has a value for that of $17,323.00 (see page 3 of tab 1 of Exhibit 1). The choice of that figure was beneficial to Katherine as it was, before Martin’s most recent report, the highest one that had been suggested by either side.

[109] Only in Exhibit 23, Martin’s report dated September 21, 2018, is it opined that the said figure ought to be $21,689.00. That report, however, through no fault of Martin, was not served in accordance with Rule 23 of the Family Law Rules. Not only was it not served 90 days before the trial, per 23(23), and not only was it not served 60 days before the trial, per 23(24), it was not even served 30 days before the trial, per 23(26).

[110] Katherine is very fortunate that this Court allowed Martin’s evidence on the $21,689.00 figure and his report (Exhibit 23) to be admitted at trial at all, given Rule 23(27).

[111] About $4000.00 separates the two figures in question. That is the price that Katherine must pay for her failure or refusal to follow the Rules and the clear Order of Justice Miller made on July 6, 2018 (tab 44 of the Trial Record). Ian has been generous enough in agreeing to the $17,323.00 figure as being the highest one suggested by either side up until very recently.

[112] With regard to Katherine’s claim for an unequal division of net family property in her favour, I will first set out below the statutory provisions that are applicable to the analysis, subsections (1) and (6) of section 5 of Ontario’s Family Law Act:

(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

[113] The threshold is high for a claim to succeed under subsection 5(6) of the legislation. It is the financial result of the normal equalization payment calculation that must be shown by the claimant to be unconscionable, after taking into account only the enumerated considerations and nothing else. Frick v. Frick, 2016 ONCA 799, at paragraph 32, citing Cosentino v. Cosentino, 2015 ONSC 271, at paragraphs 46 and 49.

[114] I do not know what clause(s) of subsection 5(6) Katherine relies upon [probably (a) as that was the only item that she said anything about at all in her cross-examination of Ian and in her other commentary throughout the trial], nor do I find that the evidence at trial establishes on balance the existence of any of those enumerated clauses, including (a). It follows that I find nothing unconscionable about the result of the normal equalization of net family properties in this case.

[115] Katherine’s claim for an unequal division of net family property is, therefore, dismissed.

Occupation Rent

[116] This issue includes a consideration of what to do about Katherine’s claim for reimbursement of certain post-separation expenses related to the matrimonial home.

[117] Ms. Fedsin argued that, given Katherine’s claim related to those post-separation expenses, it is only right that Ian’s claim for occupation rent succeed, which will result in Ian (not Katherine) receiving some money.

[118] Katherine urged this Court to dismiss Ian’s claim for occupation rent. She wants about $90,000.00 from Ian for post-separation expenses related to the home.

[119] Ian’s counsel has filed a helpful chart (Exhibit 4, tab C) which sets out the basis for Ian’s concession that he owes Katherine $52,019.60 for post-separation expenses related to the matrimonial home.

[120] Specifically, mortgage and property tax payments made by Ian after separation total $24,465.32; while mortgage, property tax, condo fees and an estimate for general household maintenance and improvements paid for by Katherine after separation total $128,504.80. Half of that difference represents the suggested payment of $52,019.60 from Ian to Katherine (note that the arithmetic should be corrected to be $52,019.71, but the error amounts to less than one dollar).

[121] Ian’s concession that he pay to Katherine that amount is premised, however, on Ian succeeding in his claim for occupation rent in the amount of $138,935.00 (Exhibit 4, clause 4 of the draft Final Order). That figure is explained by Asparian’s evidence about the fair market rent that the matrimonial home could reasonably have yielded between December 2002 and July 2018, during which time period Katherine had exclusive possession of the home (see Exhibit 4, tab B).

[122] In my view, the claims advanced by both sides ought to be dismissed.

[123] Beginning with Katherine’s request to be paid about $90,000.00 to reimburse her for post-separation expenses that she paid regarding the matrimonial home, there is simply no evidence to support that claim. Where does the $90,000.00 come from? I do not know. Where are the supporting documents to show what Katherine paid? I do not know.

[124] In addition, there is no amended pleading before this Court on behalf of Katherine that asks for the relief that she now seeks. Once she succeeded in obtaining exclusive possession of the matrimonial home, if she intended to pursue the claim that she now asserts, she ought to have amended her pleading (tab 2 of the Trial Record).

[125] Finally, Katherine’s claim is frustrated by the Order made by Langdon J. on November 19, 2002 (tab 13 of the Trial Record). In that Order, which was never appealed or varied, at clauses 5 and 9 on pages 10 and 11, respectively, it was directed that Katherine have exclusive possession of the matrimonial home but also be responsible for all expenses associated with it (mortgage, insurance, utility, maintenance, repair, and taxes). Katherine now wants this Court to change that Order, yet she has provided no basis for doing so.

[126] With regard to Ian’s claim for occupation rent, the same comment about the pleadings applies (see tab 1 of the Trial Record, not formally amended before trial, although this Court granted leave to Ian at the commencement of the trial to lead evidence on his claim for occupation rent).

[127] More important, although I was impressed with Asparian’s candour and competence as an expert witness, I do not find that his evidence in its totality supports the relief being sought by Ian. Asparian did not visit the property. He was put in the unenviable position of having to try to back-date his evidence many, many years. And, when confronted in cross-examination by Katherine with a litany of alleged problems with the home in 2017, Asparian testified that the property in that condition would not have been able to be rented out to anyone for any price. Similarly, when shown in cross-examination the photographs of the home taken in 2002 (Exhibit 9), Asparian stated that the property in that condition would not have been able to be rented out.

[128] I accept the evidence of Katherine that the home was in poor condition in late 2002 and in terrible condition in 2017. As such, I am convinced that the figures in Asparian’s report (Exhibit 4, tab B) are significantly inflated, and it would be improper speculation on the part of this Court to come up with some other numbers on its own.

[129] Consequently, Katherine’s claim for reimbursement of post-separation expenses related to the matrimonial home is dismissed, and Ian’s claim for occupation rent is also dismissed.

The Net Proceeds of Sale of the Matrimonial Home

[130] This issue includes a consideration of what to do about costs awards made previously, and during the trial itself, against Katherine and which remain unpaid, and the question of whether Katherine should get any money from the sale of the house before the costs of the proceeding as a whole are determined.

[131] Ms. Fedsin argued that outstanding costs awards made against Katherine ought to be paid out of her share of the net proceeds of sale of the matrimonial home, and further, Katherine should not receive anything until such time as the costs of the proceeding are determined by this Court.

[132] Katherine said nothing about this issue in her closing address.

[133] I agree with Ms. Fedsin. This Court orders that all outstanding costs awards made against Katherine in this proceeding, both before and during the trial itself, shall be paid to Ian, forthwith, out of Katherine’s share of the net proceeds of sale of the matrimonial home currently being held in trust. Further, this Court orders that Ian shall receive, forthwith, his share of those net sale proceeds, subject to any adjustments noted herein; while Katherine’s share of those net proceeds of sale, subject to any adjustments noted herein, shall remain in trust until further Court Order.

[134] My reasoning for those directions is simple. Otherwise, I am confident that Ian will not be paid a cent for costs, and it will undoubtedly be Ian (or, best case scenario for Katherine, neither side) that is awarded any further costs of the proceeding. There is no possibility that Katherine will be awarded any costs.

[135] This Court feels compelled to address one other thing before closing this section of these Reasons. Katherine seems to be dissatisfied with the amount of money that the matrimonial home sold for, which is surprising given her own evidence about its terrible state of repair leading up to the time of sale. Katherine seemed to imply throughout her cross-examination of Hatzis that the agent was incompetent. I reject any such assertion. Hatzis, in my view, did a commendable job in difficult circumstances wherein the person living in the home (Katherine) clearly did not agree with the Court-ordered sale and was determined to frustrate its completion. There is no basis for Katherine to complain.

Interest and Costs

[136] Ms. Fedsin argued that the parties should make written submissions on interest and costs. Katherine said nothing about that during her closing address.

[137] I agree with Ms. Fedsin. This Court orders that interest, if applicable, and costs shall be dealt with by way of written submissions. Ian shall file his submissions within thirty days of the release of these Reasons, and Katherine shall file hers within fifteen days of receiving Ian’s. No reply is permitted by Ian without leave of this Court. Each submission shall be limited to three single-sided pages, double-spaced, typed or neatly printed, on letter-sized paper, with normal margins, excluding attachments such as a Costs Outline, Bill of Costs, dockets, and/or offer(s) to settle.

[138] Any failure to comply with the limitations placed on the written submissions, referred to above, will likely be considered in terms of this Court’s decision on costs.

III. Final Order

[139] Katherine’s approval of the form and/or content of the Final Order, which shall be prepared by Ian’s counsel in accordance with these Reasons, is hereby dispensed with.

[140] I want to thank Ms. Fedsin for her professional comportment throughout the trial, which must not have been easy to maintain given the unique circumstances that she was forced to confront.

[141] For Ian, I say that this is a chance to move on. He should be congratulated for the success of his children.

[142] For Katherine, I wish her good health and happiness in the days to come. She also should take pride in knowing that her children have done very well in life.

[143] I urge Katherine to maintain her relationship with Pandke, who appears to be a caring physician. In addition, I encourage her to put the boxes of litigation documents in storage and forget about them. This case, now close to two decades old, has been like a snake around Katherine’s neck. It is weighing her down, as everyone could clearly observe during the trial. She will have the benefit of continued spousal support for a few more years. Although she cannot work, she has substantial savings from inheritances that need to be spent wisely. She also has foreseeable income in terms of disability benefits. She must pursue that.

[144] In terms of the net proceeds of sale of the matrimonial home, Katherine should not count on receiving her full or even most of her share of those funds. All costs awards in favour of Ian, those already made and any that is yet to come, shall be satisfied out of those funds. Katherine should budget for that.

Conlan J.

Released: November 21, 2018