COURT FILE NO.: FS-14-398663

DATE: 20181220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Nicole Peerenboom

Applicant

– and –

Robert Peerenboom and

Harold Peerenboom also known as

Harold Perry

Respondents

Dani Z. Frodis, for the Applicant

Nancy Tourgis, for the Respondent, Robert Peerenboom

Symon Zucker, for the Respondent, Harold Peerenboom

HEARD: September 26, 27, 28, 2018, October 1, 2, 3, 4, 5, 9, 10, 11, 12, 16, 17, 18, 19, 2018 and on written submissions

Moore J.

Reasons for Decision

[1] To their credit, the parties have managed to resolve parenting issues but have come to court to resolve the several other issues arising from the dissolution of the marital relationship of the applicant, Nicole Peerenboom (“Nicole”) and the respondent, Robert Peerenboom (“Robert”).

[2] The primary issues remaining are:

(a) Robert’s income for support purposes;

(b) The appropriate level of child and spousal support to be paid to Nicole;

(c) Nicole’s property entitlement pursuant to the Domestic Contract; and,

(d) Whether the default judgment and related writ of execution that Robert’s father Harold Peerenboom (“Harold”) obtained should be set aside.

Background

[3] Nicole and Robert met as university students in Texas in 1999. They started living together in Toronto in July 2001. They married on July 6, 2002 and have four children together. They disagree on their date of separation. Nicole insists that they separated on July 30, 2013; Robert favours a separation date of July 17, 2014.

[4] The parties have agreed to an equal-time sharing residential schedule, in accordance with the February 12, 2015 Consent Order of Justice McWatt[^1], under which the children have been thriving. The parties resolved the parenting issues on a final basis in accordance with the Consent Order of Justice Goodman, dated October 10, 2017.[^2]

[5] The children range in age from 13 down to 7. All four children attend Crestwood School/Crestwood Preparatory College (“Crestwood”) during the school year and Crestwood Valley Day Camp during the summer. Crestwood is owned largely by Robert’s father, Harold, and Robert also holds a minority interest in the schools as well. All of the children attend Crestwood schools and camp at no charge. The regular tuition for the school is $25,000 to $30,000 per child per year and the regular cost of the camp is about $5,000 per child.

[6] Harold is a very successful entrepreneur. He founded Mandrake Management Consultants (“MMC”) almost 50 years ago and remains an active partner in its business of executive search and placements. He owns all the shares of Mandrake Properties Inc. (“MPI”). In addition to the properties he owns, including those that Harold and his wife, Robin, occupy (his homes in Toronto, Florida, Keswick and Collingwood), Harold owns commercial and residential investment properties. He owns the property that Crestwood operates from and he holds significant shareholdings in Crestwood and in other corporations

[7] Early on in the marriage, the parties lived in a rented condominium on Queens Quay for about two years. In April 2004, they began renting a home located at 44 Old Forest Hill Road (“44 OFH”) in Toronto. They rented 44 OFH from Harold’s property investment company, MPI. They paid rent on 44 OFH of $2,000 per month. MPI had purchased the home on October 28, 2003 for $1.3 million.

[8] Robert purchased 44 OFH from MPI on October 30, 2008 for $1.2 million. The purchase was funded by $250,000 from Harold and a $950,000 mortgage from Scotiabank. Robert still owns 44 OFH.

[9] The parties signed a Domestic Contract dated October 15, 2007. The circumstances of the negotiation of the Domestic Contract and its terms are discussed in more detail below.

[10] The parties and their children lived in 44 OFH through to and beyond either proposed separation date. Nicole moved out of 44 OFH early in 2015 when the parties agreed to the February 12, 2015 consent order on parenting time referred to above. That order also provided for Robert to pay Nicole an uncharacterized advance of $135,000, to be funded by a further $200,000 mortgage upon 44 OFH for which Robert was responsible. Robert obtained the mortgage from Harold, and applied the balance of the mortgage funds toward his outstanding expenses, including legal expenses.

[11] On June 3, 2015, Harold issued a Statement of Claim against Robert, seeking judgment based on a series of promissory notes that Robert had signed between 2008 and 2015. Robert did not defend the action and Harold obtained a default judgment for $948,840 against his son on August 27, 2015. A writ of execution for the judgment amount was issued on August 31, 2015.

[12] In addition to this debt to his father, Robert’s financial circumstances apparently declined further after this action began. He had worked at MMC from the time he graduated from university onwards, working his way up to managing partner and president by March 2013. He was fired from this position in the spring of 2015, and began working at Crestwood shortly thereafter, earning a reduced salary.

[13] Robert found that he could not carry the cost of living at 44 OFH, so he began renting the house out. He moved with the children, when they spent parenting time with him, into the home Harold and Robin own and occupy on Warren Road. He paid no rent while living there. Robert remained living there until early 2018 when he started renting another home from MPI, 5 Valleyanna Drive (“Valleyanna”).

[14] Currently he lives at Valleyanna with his children, his girlfriend and her three children.

[15] Valleyanna is a large home, larger than 44 OFH. MPI purchased Valleyanna for $3.4 million on August 14, 2015. Robert pays MPI rent of $2,000 per month, an amount substantially below market value for such a property, and the same amount that Robert paid to rent 44 OFH and the Queens Quay condo before it.

Pleadings

[16] At the opening of this trial, Nicole moved for an order striking Robert’s pleadings as a result of his history of non-compliance with court orders and the Family Law Rules. I heard the motion and released an endorsement on October 1, 2018 holding, inter alia, that:

Robert’s pleadings are hereby struck and the trial of this matter shall proceed on an uncontested basis but, upon payment in full of all of the above noted costs orders but that upon payment in full of all of the above noted costs orders and completion of appropriate steps to address his outstanding non-compliance in respect of financial disclosure and asset valuations, Robert may apply to have his pleadings reinstated.

[17] I also found that Robert had not properly valued his equity in 44 OFH, the shares he held in MMC, Crestwood and his numbered company, and that he had produced several financial statements containing incomplete and inaccurate information.

[18] Robert did not bring his many defaults into good standing and apply to have his pleadings and his entitlement to participate in the trial reinstated. His evidence was heard. The parties agreed that transcripts of his evidence given in the related civil trial, (Action No. CV-16-554084), Nicole’s action seeking to set aside Harold’s default judgment and related writ of execution, would be filed as evidence in this trial. In addition, Robert testified orally and was cross-examined at length.

[19] Transcripts of Harold’s evidence were likewise received as evidence in this trial and he testified in addition thereto.

A. Robert’s Income for Support Purposes

Background

[20] After university, Robert worked for MMC. He began as an associate in 2001 and worked his way up to partner. In March of 2013 he was appointed managing partner and president, the position he held until the spring of 2015.

[21] In the years between 2006 and 2013, Robert’s declared line 150 income ranged from a low of $113,966 to a high of $184,925.

[22] I accept Nicole’s evidence that the parties’ date of separation is July 30, 2013. On that date, her lawyer sent Robert a letter confirming his retainer arising from the breakdown of the marital relationship and urging Robert to retain a lawyer as Nicole had instructed her counsel to negotiate a separation agreement. Robert could not identify any document or event supporting his proposed separation date of July 17, 2014. He also admitted that he had used Nicole’s proposed separation date in documents that he had prepared during the course of the proceedings.

[23] In September of 2013 Harold and Robin were involved in a serious motor vehicle accident. Harold was badly injured and hospitalized for several weeks. Nicole visited Harold in hospital and advised him that she was putting the separation on hold while Harold recuperated from his injuries. The parties continued to live separate and apart under the same roof thereafter until after Nicole commenced this action and the parties consented to the McWatt J. order in February 2015.

[24] Robert’s declared income for 2013 was $134,051. This was the income level that the parties agreed to use as a basis for the amount of monthly uncharacterized net support of $4,000 which Robert agreed to pay Nicole.[^3]

[25] Robert testified that he was fired from his position as president and managing partner of MMC on June 1, 2015 as a result, of his inability to fulfill the duties of his position. He pointed to the stress of the litigation and the breakdown of the marriage as root causes. He acknowledged that he was also spending time away from his office because he was pursuing an MBA as a part time student. Robert felt that he was depressed, although he did not seek medical attention for this concern. No expert evidence was adduced at trial on the subject.

[26] Harold and other MMC executives testified that Robert had been doing well in the time leading up to his appointment as president but his performance fell off while he served in that position. Accordingly, the board of directors replaced him in May 2015 and his employment at MMC terminated on June 1, 2015.

[27] Rather than pro-actively seeking out employment in the field of executive placements or other work for which he may be suited by his education, training and experience, Robert accepted a position at Crestwood which pays a salary of $65,000 per year, substantially less than he was capable of earning at MMC.

[28] According to his tax returns, Robert’s line 150 income in 2014 was $22,378; in 2015 was $35,884; in 2016 was $50,385[^4]; and in 2017 was $210,507[^5].

[29] Although he remains a shareholder of MMC, Robert has not applied to its board or any of its executives for reinstatement in some capacity of employment at MMC. Robert and Harold both insisted that Robert could not return to work at MMC. Neither articulated a reason why. This is particularly odd since Ms. Daignault, a current co-president of MMC, testified that if Robert re-applied, she would welcome him back.

[30] Nicole submits and the evidence demonstrates that during the marriage, in addition to his income from MMC, Robert and the family received other benefits from Harold and his companies, including driving company cars, gas and maintenance payments for the vehicles, the children attending private school and camp at no charge, payment of credit cards[^6]. Nicole described a very affluent lifestyle, including frequent vacations, skiing in the winter near Harold’s chalet and spending weekends at Harold’s cottage in the summer. Flights and accommodations were provided or paid for by Harold and his wife, Robin. The parties employed a live-in-nanny, drove expensive cars[^7] and had private club memberships. Harold also paid for a gardener and snow removal for the parties’ matrimonial home.

[31] Robert continues to enjoy perks of employment from Crestwood. He has the use of two Crestwood-owned vehicles for his personal use and company paid medical and dental benefits.

[32] Robert has failed to provide evidence of the value of the perks and benefits he has been provided by MMC and Crestwood during the terms of his employment with either company.

Robert’s Lifestyle and Expenses

[33] Robert continues to live in a large and valuable home courtesy of Harold’s largess. He drives company-owned and maintained vehicles courtesy of Crestwood. Clearly, his lifestyle is not compatible with the declared income level Robert testified to.

[34] Robert was asked to but could not reconcile the quantum of the annual deposits into his bank accounts relative to the annual expenses shown on his financial statements and his line 150 declared income from his tax returns. Nicole submits, and I accept, that the relevant, available numbers are:

Year	Annual Deposits into Robert’s Bank Accounts[^8]	Annual Expenses according to sworn Financial Statement[^9]	Line 150 ITR
2010	$257,655	N/A	$133,711
2011	$252,376	N/A	$124,625
2012	$287,395	N/A	$139,323
2013	$232,459	N/A	$134,051
2014	$161,794	$204,849	$22,378
2015	$163,304[^10]	$159,474/$150,521/$150,521[^11]	$35,884
2016	$76,779[^12]	$149,409/$145,370[^13]	$50,385
2017	$252,549[^14]	$105,679[^15]	$210,507
2018	$94,916[^16]	$160,829[^17]	N/A

[35] Harold submits and I accept that there is no evidence that Robert earns income from any job other than that at Crestwood. Ms. Daignault and Mr. Sjolin testified that Robert does not work for MMC and has not done so since June of 2015. The evidence supports Harold’s contention that Robert’s Crestwood income has been augmented by gifts and loans of money from Harold.

Nicole’s Income

[36] Nicole worked in public relations and in advertising jobs in the early years of the marriage, earning about $30,000 to $45,000 annually. She took maternity leave after the birth of her first child, but her second child was born with a serious heart condition requiring hospitalization and treatment in his infancy. At that point, the parties decided that Nicole should stop working outside of the family home.

[37] In the ensuing years, Nicole received income from commissions Robert earned through MMC that were paid into Robert’s numbered company and split from there into Nicole’s account. As such, the company paid Nicole income of $10,000 in 2011; $24,000 in 2012; $27,500 in 2013; and $22,000 in 2014.

[38] She returned to the workforce in early 2015 on a part-time basis in a real estate office. She later worked as a legal assistant and as a legal secretary. Her income from these jobs has been modest: $5,493 in 2015; $10,998 in 2016; and $15,283 in 2017.

[39] Nicole intends to return to work in the legal field, where she feels she can probably earn up to $40,000 a year. It will take some time for Nicole to find suitable employment and so I will impute an income to her somewhat lower than she projects. For support purposes, I therefore impute an income to Nicole of $30,000 per year.

[40] The parties’ income levels may vary going forward and, as such, I shall order that for as long as support is to be paid, the payor and the recipient must provide updated income disclosure to the other party each year, within 30 days of the anniversary of my order, in accordance with section 24.1 of the Child Support Guidelines.

[41] Nicole explained how her lifestyle changed dramatically after separation. Her access to money through Robert’s MMC commissions ended, her use of a vehicle ended, she had to borrow money to pay her rent and she could not afford to place her children into extra-curricular activities.

[42] Her latest financial statement[^18] establishes that her monthly expenses far outstrip her income. She notes with reference to her expenses that she has had to significantly reduce her expenses as a result of the reduced support being paid by Robert since November 2015 and, in addition to borrowing money, she has had to max out her line of credit and credit cards in order to meet the monthly expenses for her children and herself.

[43] Her list of debts in this financial statement includes unpaid legal fees estimated at $353,000.

[44] I accept her submission that she is financially depleted and that she and the children are completely dependent on Robert for support.

Contract and Law

[45] The Domestic Contract of October 15, 2007 speaks to the matter of spousal and child support. In paragraph 7.1, it provides that for child and spousal support purposes Robert’s income will be calculated by the last three years average total income from his tax returns. However section 56(1.1) of the Family Law Act[^19] states:

In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract.

[46] Accordingly, the court is not bound by separation agreements that fix a method for determining child support. The case law also supports this. In Sos-Porritt,[^20] the parties had signed a separation agreement but the payor father later moved to vary the amount of child support payable on the allegation that his income had decreased and the recipient mother’s had increased. He had managed to write off significant expenses from his gross income for tax purposes. The court noted that although that may be considered reasonable from a business point of view, it is not a fair recognition of the actual income available for child support, particularly when the father has a legal obligation to support four children.

[47] As is pointed out in Clapp[^21], the court employs the methodology set out in the Federal Child Support Guidelines to determine income for purposes of spousal support as well as child support and the test for imputing income for child support purposes applies equally to claims for spousal support.

[48] So, notwithstanding that the Domestic Contract may say otherwise, if this is an appropriate case in which to apply the provisions of section 19(1) of the Guidelines to impute income to Robert above the level of his line 150 declared income for tax purposes, it may be imputed both for purposes of child and spousal support.

[49] In my view, separation is a game changer. Parties are required to do their best to provide for themselves and their children. The court stressed in Drygala[^22] that imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children and, in order to meet this legal obligation, a parent must earn what he or she is capable of earning. This applies equally to situations involving spousal support.

[50] In imputing income, lifestyle and sufficiency of financial disclosure are relevant. In Cumming[^23], the court held that:

43 Section 19 of the Child Support Guidelines (Ontario) provides the court with a discretion to impute income to a parent where appropriate in circumstances which include that the parent is intentionally unemployed or underemployed; and where the parent has failed to provide income information when under a legal obligation to do so.

47 It is clear that Mr. Liu has failed to provide income information when under a legal obligation to do so by failing to comply with the order for disclosure made November 25, 2011. The documents he did give to Ms. Cumming do not come close to compliance with that order.

49 Taking into account Mr. Liu’s failure to provide income information when under a legal obligation to do so; the amounts admittedly received by Mr. Liu from his parents; his apparent ability to earn income and the lifestyle demonstrated during the relationship with Ms. Cumming, that it is appropriate to impute income to Mr. Liu. I find that it is appropriate to impute income to him at $61,831 annually, that being the amount, by inference, he needs and receives to support his lifestyle, grossed up to reflect that it is not subject to tax consequences.

[51] Nicole points to Bak[^24] on the matter of lifestyle. In that case, the court said:

40 As I have said, under the Guidelines, child support is calculated on the payor’s total income for income tax purposes. Lifestyle is clearly not a type of income, receipt or benefit included in total income. Canadians are not taxed on lifestyle.

41 Equally clearly, however, a payor’s lifestyle often will be relevant to whether a court may impute income under s. 19(1) of the Guidelines. For example, it may be apparent from lifestyle that a payor is receiving undeclared income because he or she has historically worked, lives comfortably with the usual trappings and yet declares minimal income for tax or child support purposes. In such a case, the recipient who calls evidence of the payor’s lifestyle will ask the court to draw the reasonable inference that the payor must have a greater income than he or she has disclosed.

43 On this issue, I conclude that lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.

[52] Harold also relies on Bak[^25] and points to the fact that the appellant cited no case where parental assistance was imputed to a respondent as income or as part of the respondent’s means in a final order.[^26] There have, however, been several cases decided after Bak that shed further light on the matter of imputing income to a party who received gifts from a parent.

[53] Nicole cites and relies on the decision of the Court of Appeal in Korman[^27], a case in which income was imputed to the husband on the basis of cash gifts, payment of tuition and camp fees for the children and costs of his business ventures received from his mother. The court relied on the findings of the trial judge that very generous gifts were regularly given to the parties throughout their marriage and that the husband would likely continue to receive such monetary gifts going forward.[^28]

[54] The court distinguished Bak by concluding, at para. 67 that:

This is not a case like Bak, where a parent provided financial assistance to support a disabled adult child who would otherwise have been unable to support himself. The Husband is able to support himself and has also received regular and substantial gifts from his parents, for many years. These gifts helped the Husband establish a lifestyle well in excess of a basic standard of living for himself and his family during the marriage. They have also assisted the Husband with his lifestyle and his liabilities since separation.

[55] Harold has submitted that imputing income for support purposes based on discretionary gifts and loans would place the support burden on Harold, even though Harold has no legal obligation to support Nicole or Robert’s children. That position was rejected by the Court of Appeal in Korman[^29]:

I note that, contrary to the Husband's submission, imputing income on the basis of these substantial and consistent gifts does not impose any obligation on the Husband's mother to continue such gifts in the future. It simply reflects the trial judge's factual determinations about the Husband's actual past revenues and his likely financial future. If the situation changes, it would be open to the Husband to request an adjustment accordingly, in the normal manner.

[56] The Court of Appeal also did not distinguish between gifts in the nature of capital and gifts in the nature of income, as the court had done in Bak. In the result, the court found no basis on which to disturb the trial judge's discretionary imputation of income to the Husband.

[57] In Malkov[^30], Justice McGee found that parental gifts may be imputed as income when they take on the appearance of a long term subsidy for the pre and post separation family, as if the spouse was the beneficiary of income or benefits from an unwritten trust. He imputed income to the husband on the basis of benefits he received from his father, particularly the fact that he was living rent-free in an apartment and was “free to organize his finances without regard to the significant costs of accommodation in the Greater Toronto Area”.[^31] Justice McGee found that the benefits at issue fell into the class of gifts constituting income as contemplated in Bak, and added $30,000 per annum (pre-tax) to the husband’s employment income to take into account these benefits.[^32]

[58] Where parental gifts have supported a lifestyle well in excess of a basic standard of living, before and after separation, they will be included as income. In Teitler[^33], the trial judge found that the amounts gifted by the husband’s parents formed a major, integral, and essential part of the family's income and continued to do so for the husband. The judge concluded that the advances were gifts, and were ongoing, despite the husband’s evidence, based on his “less than impressive” disclosure and the low likelihood that “an educated and sophisticated professional such as Mr. Dale would make the choices he is still making in terms of his lifestyle if his income for support purposes was as little as he claims, or that every amount advanced from his parents had to be repaid.”

[59] Where the gifts are to help a child through a difficult time, they will not be income. The recent case M.B.[^34], found that money received by the husband from his father was in the form of loans, based on the husband’s history of repaying money to his father, and the proper documentation of the loans. The trial judge found that, if these loans were ultimately forgiven, then they should not be included as the husband’s income, as they were monies given to assist him through a difficult period and, following the principle from Bak, where money was gifted to assist a child through a difficult period, that money should not be treated as income[^35]. A similar conclusion was reached using the test from Bak in A.L.[^36], where the money advanced was to help the child with the financial impact of the separation and some health problems.

[60] Nicole submits, and I accept, that where a party fails to provide financial disclosure, it is open to the court to draw an adverse inference and impute income to that party. When necessary, the court should make findings of property value and a party’s income despite the absence of a complete financial record. This process does not involve mere speculation or guessing. Instead, it involves the drawing of reasonable inferences from the evidence and, in the absence of a reasonable explanation for the non-disclosure, drawing adverse inferences arising from the failure by a party to produce financial documents which could have been and should have been reasonably available to the party for production.[^37]

[61] Nicole relies upon the court’s reasoning in and the decision reached in Milutinovic.[^38] In that case, the husband’s pleadings were struck at the commencement of trial and one of the critical issues for determination was the husband’s income for support purposes. Due to his lack of disclosure, the court was very much in the dark about the husband’s income and financial circumstances and was forced to rely upon speculation and adverse inferences. While the husband claimed that his annual income had dropped from about $300,000 per year to $18,000 per year, Justice McDermot found that the husband’s lifestyle remained undiminished, as his annual expenses disclosed on his financial statement exceeded $300,000 with no explanation for how these expenses were being met.

[62] Nicole points out that in the circumstances, Justice McDermot applied section 19(1)(f) of the Guidelines and made an adverse inference against the husband on the basis of his lack of disclosure and the fact that his lifestyle was wholly inconsistent with his reported income without any good explanation. Justice McDermot went on to impute the husband with income of $300,000 and made the following comments:

Radmilo has claimed throughout that he has no money and earns almost nothing. If this was the case, he had a duty to explain how he lives the lifestyle that he lives and to provide that he was, in fact, living in poverty. Again, he failed to do so and failed to provide the disclosure necessary to explain the inconsistencies between his lifestyle and reported income in his financial statement. When a party’s lifestyle is inconsistent with his reported earnings, that individual has a duty of explanation. He failed to follow the provisions of Rule 13 requiring ongoing financial disclosure, and was negligent in providing the disclosure he was ordered to provide. His pleadings were struck as a result. In light of all of this, it is clear that income should be imputed to Radmilo under s. 19(1)(f) of the Child Support Guidelines.[^39]

[63] Nicole submits that, simply put, the case law is clear that in the absence of reliable evidence from which to ascertain income, courts should take into consideration the parties’ spending and lifestyle in determining income. In doing so, the most objective and reliable starting point will often be the amount of expenses listed on the payor’s sworn financial statement.[^40]

Imputing Income

[64] Applying the law to the facts of the instant case, Nicole submits that an income of $275,000 should be imputed to Robert for support purposes. Her stated reasons are:

i. Robert’s pleadings were struck at the commencement of trial in part due to his failure to produce disclosure that was relevant to the determination of his income and his ability to pay support. An adverse inference should be drawn based on Robert’s failure to produce full and frank financial disclosure, particularly in light of the fact that he is in breach of various court orders for disclosure in addition to the Family Law Rules and the Child Support Guidelines;

ii. While Robert claimed that the income shown on his tax returns was accurate, this was clearly not the case. His lifestyle and spending as illustrated by the deposits into his account and the expenses listed on his sworn financial statement are wholly inconsistent with Robert’s claimed income. Robert had no reasonable explanation for this and could not explain how he had funded the deficit. From 2010 to 2013, the annual deposits into Robert’s bank accounts totalled about $250,000 per year. In the years following the separation, Robert has consistently claimed annual expenses on his financial statements of $105,000 to $205,000 per year;

iii. According to the first financial statement Robert swore in these proceedings dated November 19, 2014[^41], which is likely the most accurate reflection of the parties’ lifestyle during the marriage, Robert’s expenses totalled $162,000 and did not include the monthly mortgage payments of approximately $3,500 per month. In order to pay for net expenses of $162,000 (though the evidence suggests that Robert was actually paying for the mortgage as well through a loan from his sister), Robert’s income would have to be $272,810. Even on his most recent financial statement sworn October 1, 2018[^42], if the monthly mortgage payments are included, his annual expenses total $160,829;

iv. Harold acknowledged and the evidence suggests that both during the marriage and after separation, Robert has continued to be financially supported by his father, which allowed the family to enjoy an affluent lifestyle. Robert continues to enjoy a very comfortable lifestyle;

v. Robert did not provide any documentation in support of his claim that he had attempted to obtain employment as a recruiter following his alleged termination from MMC. In addition, the co-president of MMC suggested that she would welcome Robert’s return to the firm. It is submitted that Robert is intentionally under-employed;

vi. Robert continues to receive significant non-cash benefits from Crestwood, to which he has not assigned a value, including the personal use of two company vehicles, a gas card and medical and dental benefits;

vii. Since the end of 2017, Robert has been living in a 5-bedroom house on the Bridle Path located at 5 Valleyanna Drive, which is owned by his father’s company. Despite the market rent for the property being $6,150 to $7,000 per month[^43], Harold has allowed Robert to live there were the children (and his girlfriend and her three children) for only $2,000 per month. Harold is also paying all of the utilities for the property, including landscaping and snow removal;

viii. During the marriage, Robert told Nicole on several occasions that his income from MMC was as high as $300,000, which is consistent with their expenses and lifestyle. Harold also suggested that Robert’s income was between $100,000 and $300,000; and

ix. Robert’s reported employment income from MMC in the year of separation was $134,051. This employment was consistent with Robert’s employment history, skills and expertise. During the marriage, various personal expenses were also paid for by MMC. If the pre-tax benefit that Robert currently receives from living at 5 Valleyanna Drive is added to Robert’s reasonable employment income, his income would total $294,000.

[65] I value Nicole’s submissions on this issue. They are well-reasoned. For added clarity, I draw an adverse inference due to Robert’s failure to produce full, frank financial disclosure in accordance with the requirements of the Family Law Rules and court orders issued during the proceedings and his failure to bring himself into compliance during the trial.

[66] Harold’s money, whether by gift or by loan (that Robert may never repay during Harold’s lifetime), played a substantial role in keeping Nicole and Robert’s family well above a standard of living commensurate with their combined levels of income from employment during the marriage. Harold has continued to support Robert financially after separation, albeit to a lesser degree than during the marriage.

[67] Harold’s gifts and loans to Robert currently take the form of paying for professional services and some home repairs for Robert, and subsidizing the cost of Robert’s rental accommodations, access to credit cards and company-owned vehicles.

[68] Some of Harold’s ongoing support is based on the fact that Robert is in difficult financial circumstances, including his exposure to significant and growing legal fees. Support of this nature should not be included in Robert’s income for support purposes. Some of the benefits Harold bestows on Robert and Robert’s children, such as school tuition and camp fees and the vacation costs, Harold underwrites to his cottage, ski chalet and Florida home, I view as arising from exceptional circumstances and should not be included in income for support purposes according to the Bak factors.

[69] Furthermore, I decline to impute income to Robert purely on the basis of his lifestyle. Lifestyle is not income. Robert’s lifestyle does not come from an undisclosed source of income, it comes from the support he receives from his father. The fact that Robert enjoys a comfortable lifestyle because of the support of his father does not directly put money into his pocket to pay child and spousal support.

[70] In addition, I find that Robert has failed to comply with the positive duty upon him to obtain and maintain employment or other income opportunities commensurate with his education, training and experience for the benefit of his children and spouse in regards to support issues. He is a healthy, active man of about 43 years of age who has chosen to remain at Crestwood earning $65,000 per year without raises since 2015. I find him to be intentionally underemployed and this, together with an acknowledgement of the fact that some of the support that Harold has made available to Robert post-separation provides him with more disposable income than he would otherwise earn from employment, and that Harold may well continue to fund Robert’s financial future warrants imputation of income for support purposes.

[71] As is noted above, if the situation changes, it would be open to Robert (or Nicole) to request an adjustment accordingly, in the normal manner.

[72] Robert’s income for support purposes going forward will be based on his Crestwood annual income plus $35,000 per year, for an annual imputed income of $100,000[^44].

B. Child and Spousal Support

Child Support

[73] Upon the imputed income of $100,000 for Robert and $30,000 for Nicole, Robert must pay Table Child Support for the four children of the marriage in the offset amount of $1,534 per month. For the reasons given above, this award is made notwithstanding the provision apparently reading to the contrary in respect of child or spousal support in the Domestic Contract.

[74] Historically, there have not been special or extraordinary expenses for Nicole and Robert to share. Expenses that would fall into this category, such as Crestwood school and summer camp fees, have been paid by Crestwood and/or Harold. In the event that extraordinary expenses are incurred in the future, they shall be paid by Nicole and Robert in proportion to their respective incomes. At this point, Robert’s rateable proportion of such expenses is 77% and Nicole’s is 23%.

Spousal Support

[75] Section 33(8) of the Family Law Act defines the purposes of an order for support of a spouse and states that such an order should:

(a) recognize the spousal’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship.

[76] The first step in determining an amount to be awarded in spousal support is consideration of spousal entitlement to support.

[77] Compensatory support is intended to compensate a spouse upon the breakdown of the marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a result of raising children. This is particularly applicable where a property division is unable to achieve this result. Where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared. Non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such as age, illness or disability. These factors need not necessarily be connected to the marriage.[^45]

[78] In the instant case, having regard to the conditions, means needs and circumstances of Nicole and Robert, including: Robert’s ability to pay spousal support; Nicole’s obvious need for support; the fact that she gave up her career to be a stay-at-home mother for one ill child as he was an infant and was the primary caregiver of all four children prior to separation; her assistance to Robert’s career by entertaining clients and otherwise supporting him as he rose up the ladder of success at MMC;[^46] the negative impact of the marriage breakdown upon Nicole; her obviously diminished lifestyle; her time out of the full-time workforce and the challenges she will face in transitioning back into a career at this age and stage of her life; and, the fact that the relationship lasted for over 12 years in total, I conclude that Nicole is entitled to an award of spousal support on both compensatory and non-compensatory bases.

[79] The applicable formula under the Spousal Support Advisory Guidelines results in a range of spousal support in the circumstances of this case of $0 to $826 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 6 years and a maximum duration of 17 years from the date of separation. I accept Nicole’s submission that an award of mid-range support is appropriate given that there is very little deviation from equal sharing of net disposable income at points in the range. I therefore fix spousal support payable to Nicole at $440 per month. I fix the duration of spousal support to be 11 years, by which time all four children are expected to have completed high school.

Retroactive Support

[80] Nicole requests that arrears of child and spousal support be awarded from August 2015 to September 2018.

[81] As noted above, Robert consented to an order of February 12, 2015 which required him to pay monthly uncharacterized support payments to Nicole of $4,000. In November of 2015, Robert moved to reduce his support obligation, and upon the evidence before her on the motion,[^47] McWatt J. ordered him to pay child support of $1,225 per month and spousal support of $87 per month. Robert has paid these amounts ever since.

[82] McWatt J. noted in Her endorsement that Nicole did not ask Her to impute income to Robert on Robert’s motion to vary and found that the evidence on the motion called for Robert’s motion to succeed based on a material change in circumstances. The new temporary order was, by its terms, effective August 1, 2015.

[83] A claim for retroactive support is to be determined according to a discretionary approach adopted by the Supreme Court in S. (D.B.)[^48]. The following factors are to be considered and no one factor is decisive:

(a) Reasonable excuse for why support was not sought earlier;

(b) Conduct of the payor parent;

(c) Circumstances of the child (or spouse in the case of spousal support); and

(d) Hardship occasioned by a retroactive award.

Flexibility and a holistic view of each matter on its own merits are necessarily involved when dealing with the issues of retroactive child or spousal support.[^49]

[84] Nicole did not appeal the November 2015 order reducing Robert’s support obligations and did not bring a motion to vary its terms before trial based on a view that income above the level of his income from Crestwood should be imputed or that her circumstances or the needs of the children warranted a further variation. The claimant for retroactive support must first establish why, in the face of an alleged need, support was not sought earlier.

[85] It is trite law that the purpose of interim child support awards is to assist with day-to-day expenses of raising children pending trial. In this case, there is no evidence that the children suffered any hardship from a lack of financial support in the interval between August 1, 2015 and the present; quite the contrary is the case. The children continued to live in fine houses with their respective parents and, for a time, in their paternal grandparents’ home, they attended private schools and summer camp (if they chose to), they engaged in extra-curricular activities, they travelled, and they were supported financially and otherwise by their parents and extended family.

[86] In terms of Nicole’s circumstances, the separation has had a negative financial impact on Nicole. As noted above, she had to significantly reduce her expenses as a result of the reduced level of support that Robert has paid since November 2015 and, in addition to borrowing money, she had to max out her line of credit and credit cards in order to meet the monthly expenses for her children. However, there is also evidence that Nicole’s circumstances were improved and her need was somewhat reduced after she moved in with a new partner.

[87] I find it is significant that Nicole has not explained her delay in seeking further child or spousal support prior to trial. She was represented. If she had unmet need, she could have brought a motion to impute income to Robert at any time during the almost three years between the reduction of support in November 2015 and trial, an alternative that is more efficient and cost effective than invoking the forensic machinery of a trial.

[88] In my view, an order for retroactive support may well create a financial hardship for Robert, given the precarious state of his financial affairs.

[89] No order shall issue for the payment of child support or spousal support in respect of any time prior to the date of these reasons.

Security for Support Obligations

[90] Nicole submits that Sections 15.1(4) and 15.2(1) of the Divorce Act[^50] and sections 9 and 34 of the Family Law Act permit an order securing support on such “terms, conditions or restrictions” as the court thinks “fit and just”. Both of these sections allow for security for child and spousal support. For instance, lump sum child support has been ordered on numerous occasions where a payor has a poor payment history. The case law confirms that an order securing support is appropriate where a party has a history of non-compliance with court orders and where it is unlikely that the payor will pay his child and spousal support as ordered.[^51]

[91] In light of the fact that Robert’s pleadings have been struck for breaches of court orders, including a payment order for $150,000, Nicole submits that Robert’s prospective child and spousal support obligations should be set off against the $135,000 uncharacterized advance that Robert made to Nicole pursuant to the consent order of February 12, 2015. A very similar arrangement was ordered in Poulin and a virtually identical arrangement was ordered in Milutinovic[^52].

[92] Nicole argues that, based on her receiving monthly child and spousal support totalling $8,583 per month, Robert’s $135,000 credit would mean that he does not have to pay any ongoing support for the next 16 months.[^53] This also ensures that Nicole actually receives the support that she and her four children are entitled to given Robert’s history of non-payment and his claims of impecuniosity.

[93] I agree with Nicole’s approach to this issue but do not support the basis of her calculations, as I have found that her monthly entitlement to child and spousal support is $1,974 and therefore the number of months required to set off the $135,000 credit is 69 months. Order to go accordingly.

Medical and Dental Benefits

[94] Robert has sworn in his most recent financial statement that he has extended health care coverage through his employment at Crestwood. As such, he is entitled to certain medical and dental benefits coverage through Empire Life Insurance Company. Nicole seeks an order requiring Robert to maintain her and the children as beneficiaries as long as they are entitled to support.

[95] The insurance policy in question is not in evidence and so its terms and conditions are unclear. For example, whether coverage is available to Nicole as a former spouse, after the divorce order she seeks in this matter issues, is unknown.

[96] Assuming that coverage is available to Nicole and the children under the Empire Life policy, an order directing Robert to maintain such coverage will suffice.

Life Insurance

[97] Nicole points out that according to Robert’s latest financial statement sworn October 1, 2018, he currently has life insurance through MMC in the face amount of $183,000 and through Crestwood in the face amount of $65,000. Robert confirmed at trial that both of these policies are still in place.

[98] Assisted by applicable software, I find that that the life insurance estimate required, based on the SSAG mid-range is $292,020. This calculation does not include any amounts for potential section 7 expenses for the parties’ four children, such as activities or university tuition.

[99] Based on her calculations, Nicole is seeking an order that Robert obtain/maintain a policy of life insurance having a face value of no less than $1,000,000 and naming Nicole as irrevocable beneficiary, to secure his child and spousal support obligations.

[100] She argues that it is common practice to secure future support obligations with life insurance and is specifically provided for in section 15 of the Divorce Act and section 34 of the Family Law Act. The Court of Appeal has said that the power of the court to secure support payments by a charge on property or otherwise is sufficiently broad to include the requirement to obtain life insurance and give directions respecting the amount of insurance to be obtained and the designation of the beneficiary.[^54]

[101] On the assumption that Robert is insurable and able to obtain total life insurance coverage of $300,000, I view Nicole’s request for the type of security she seeks to be reasonable in the circumstances of the case and make the order accordingly.

C. Property, Equalization and the Domestic Contract

Property

[102] The most significant valued asset in this case is 44 OFH. As is noted above, Nicole and Robert lived in the home as tenants from April 2004 until Robert took title to the property solely in his name on October 30, 2008. The couple continued to live in the home with their children until early 2015 when Nicole moved out.

[103] Robert purchased 44 OFH from MPI for $1.2 million in 2008. Nicole called expert appraisal evidence at trial through a real estate appraiser, Gord Sommerville. He opined that, if listed for sale for a reasonable time, its value as at October 14, 2017 would be $2,930,000.

[104] Mr. Sommerville brought his opinion current by adding that property values in 44 OFH’s area between October 2017 and the time of trial in 2018 may be slightly higher. Demand has remained strong but the supply of properties has increased “a bit”. Prices seem to have been holding for this area although the median sale price was up slightly in the last year.

[105] Mr. Sommerville’s opinion of value is no guarantee that 44 OFH would attract an offer to purchase at $2.9 million but it provides the parties with reason for optimism that 44 OFH may well sell for a price well above the $1.2 million Robert originally paid for it and optimism that there will be substantial equity realized from its sale.

[106] He also looked at MPAC records for the size and use of the property, previous listings particulars and assumed that the interior of the house was in average condition.

[107] Having reviewed listing information documents for the 44 OFH property, he was aware that it had been listed three times and was on the market for 167 days, 206 days and 123 days between April 2011 and February 2012. He was asked to assume that those listings did not produce any offers, and he was asked to comment on the impact of all of this to the current value. He replied that this was a sought-after neighbourhood then and today, but those previous listings are too far removed from the present to be relevant.

[108] He agreed that his value could be off by as much as five percent, although he said he would be disappointed if it was off by that much. He stated that his valuation would more likely be on target, with possible variation of two percent either way.

[109] He also agreed that this property, 44 OFH, is more attractive for continued use than for redevelopment.

[110] Harold’s counsel submitted that the value of the home should be determined as of the date of separation for the purposes of determining Nicole’s entitlement under the Domestic Contract. Nicole’s position is that the value of the home as of the date of separation is irrelevant, as Nicole’s primary claim is pursuant to the Domestic Contract and not by way of an equalization payment. She submits that, in order to give effect to the clear wording of paragraph 6.1 of the Domestic Contract (which contemplated a matrimonial home being purchased in joint names and the net equity being shared or net proceeds being shared in the event of a sale), the equity in 44 OFH should be shared as of the current date. She adds that the Domestic Contract clearly contemplated Nicole having a proprietary interest in the matrimonial home and the net proceeds of sale being shared, both of which would have entailed sharing the value at the time of sale.

The Domestic Contract

[111] In the lead-up to the Domestic Contract, signed on October 15, 2007, the parties were experiencing marital discord. Nicole described the relationship as very passionate and tumultuous. She testified that she was experiencing difficulties balancing the responsibilities associated with caring for a one-year old child with working and entertaining Robert’s clients.

[112] Robert recalled that they were on a break, effectively if not formally separated.

[113] Nicole insists that the Domestic Contract originated from Harold’s wish to protect Peerenboom corporate and family assets, and that Robert told her it would be a marriage deal-breaker for him if she did not enter into such an agreement. Robert says that the contract arose out of Nicole’s wish to reconcile and to show her good faith and commitment by offering to renounce any interest in sharing in the Peerenboom family wealth.

[114] Harold testified that he took no part in directing the couple to negotiate this contract and had no involvement in negotiating its terms.

[115] In my view, it matters not how the ball got rolling. Nicole and Robert were each represented by experienced family law lawyers and they negotiated the contract through several iterations and over many months. This was not a situation of one party delivering an agreement as a fait accompli and demanding it be signed as-is or else.

[116] The parties and their legal advisors worked diligently and came to terms that both Nicole and Robert understood and agreed to.

[117] Nicole recalls that that it was/is her understanding that the Domestic Contract entitled her to half of the matrimonial home. While the initial plan was for the parties to buy another home in their joint names, it was Nicole’s belief that regardless of whether the parties purchased a new matrimonial home or were still living at 44 OFH on the date of separation, she would still be entitled to half of the matrimonial home. Nicole’s understanding is consistent with the language of the Domestic Contract.

[118] She points out that, in his evidence at this trial, Robert insisted that Nicole was not entitled to any property settlement whatsoever, either under the Domestic Contract or by way of an equalization payment. Robert testified that he had made efforts to sell the matrimonial home and purchase a new home in joint names in 2011 and 2012, but that the home did not sell despite his best efforts. Therefore, Robert took the position that 44 OFH was excluded under the Domestic Contract and that there was no other matrimonial home to be shared with Nicole. In short, it was his position that he was entitled to 100% of the equity in 44 OFH and that Nicole was entitled to nothing.

[119] As to how reasonable Robert’s efforts to sell 44 OFH were prior to separation, there is compelling evidence to the contrary.

[120] In 2011, when Nicole and Robert were considering selling 44 OFH, they met with Robert Kroll, a registered real estate agent since 1988, to discuss the listing price. Mr. Kroll testified that Robert wanted higher than Mr. Kroll’s recommendation of $2.2 million. Challenges to selling included that 44 OFH was a small former coach house property with steep stairs, a limited number of bedrooms and an 84-foot deep lot which was too small for redevelopment, according to current bylaws at the time. In Mr. Kroll’s view, 44 OFH should have been listed for sale at between $2 million and $2.2 million.

[121] He testified that Nicole and Robert told him that the home was mortgaged in the amount of between $1.4 million and $1.5 million. Harold points out that combining the bank debt and the debt outstanding to Harold, the total amount of debt came to what Mr. Kroll had been told that the couple owed.

[122] Robert and Nicole ultimately listed the property for $2.6 million. Nicole thought it should be listed for less, as did Mr. Kroll. While the house was listed, there was not a lot of activity; there were one or two showings per week.

[123] The house was listed again for June 13, 2011 through October 15, 2011, this time at $2,499,000. That price produced similar activity. Most potential purchasers thought that the house was too small.

[124] The home was relisted again between February 27, 2012 and May 30, 2012 for a list price of $2,495,000. It did not sell.

[125] Throughout, Robert was keen for a higher listing price while Nicole was prepared to consider lower listing prices. Mr. Kroll thought Robert’s listing price was “fairly aggressive”.

[126] The last listing expired on June 30, 2012. Mr. Kroll’s testimony confirmed that they never received an offer.

[127] I find that Robert did not make reasonable efforts to sell 44 OFH in 2011 and 2012. The parties had by then agreed to sell 44 OFH and find a home that they could purchase together. He refused to accept the market value input that he sought and received from Mr. Kroll, he ignored Nicole’s advice and the fact that despite lengthy times on the market at prices Robert dictated, he received not a single offer.

Robert’s Debts to Harold not included in Default Judgment

[128] Nicole takes the position that, assuming that the matrimonial home is treated as a joint asset and that Nicole receives one-half of the equity in the property, there is an equalization payment owing from Robert to Nicole in the amount of $87,734.28.

[129] Schedule “A” to the Domestic Contract is entitled a Personal Statement of Affairs of Robert. It identifies and values his assets and liabilities, the former totalling $71,683.14 and the latter $79,797.42. The listed debts include two personal loans from Harold to Robert totalling $60,000.

[130] No documentation was adduced at trial confirming the particulars of these personal loans and they did not form any part of the money loaned to Robert, secured by promissory notes, and included in the default judgment obtained in the amount of $948,840.

[131] These two loans did not appear in the list of gifts and loans prepared for Harold in May 2016 by Brian Clements, CFO of MMC and others of Harold’s companies.

[132] In the circumstances, I am not prepared to hold that Robert owed Harold $60,000 on the date of separation. And I agree with Nicole’s submission that as Robert claims these personal loans as date of marriage debts, they would be a wash throughout the term of the marriage.

$135,000 Uncharacterized Advance & $100,000 Interim Costs and Disbursements

[133] As Nicole and Robert consented to the February 12, 2015 order of McWatt J. which provided, in part, that Robert would provide Nicole with an uncharacterized advance in the amount of $135,000 on the basis that Robert will receive credit for this payment in the final resolution of the financial issues and as Robert did indeed make that advance payment, he is entitled to a credit in the amount of that advance.

[134] By endorsement dated June 16, 2016, Stephenson J. decided Nicole’s motion for interim costs and disbursements. Her Honour asked and answered the questions of:

• What fees and disbursements are necessary and reasonable for the applicant to pursue her claims?

• Is the applicant unable to fund litigation herself?

• Does the respondent have the resources to pay?

She then found that Nicole had met the evidentiary burden placed upon her and that it was appropriate to order Robert to pay her interim costs and disbursements in the sum of $100,000 as requested. Robert did indeed eventually pay that award and he is therefore entitled to a credit for it in these proceedings. In my view, payment of this award has everything to do with costs and disbursements and, therefore, the time to determine the applicability of that credit will come when costs are agreed-upon or fixed.

[135] As discussed above, Nicole suggests that the credit for the $135,000 advance should be offset against Robert’s ongoing support obligations and that the treatment of the interim costs and disbursements totaling $100,000 which Nicole received pursuant to the June 16, 2016 order of Stevenson J should be addressed as part of the overall costs analysis following trial. These suggestions are reasonable and I adopt them.

Interpretation of the Domestic Contract

[136] Nicole correctly contends that a contract or agreement capable of interpretation is an enforceable obligation. This includes an ambiguous contract requiring extrinsic evidence to assist in interpretation. The court must attempt to give effect to an agreement where at all possible, and must only find a contract void for uncertainty as a last resort.[^55] Courts may, in any class of contract, imply a term in order to repair an intrinsic failure of expression. Where there is an incidental contingency omitted from a contract, the court may supply a further term, which will implement their presumed intention and give “business efficacy” to the contract.[^56]

[137] She also correctly proposes that a court must search for an interpretation of a domestic contract that is in accordance with the parties’ intention at the time they entered into the contract. Where two interpretations are possible, the court should reject the one that would produce a result that the parties would not have reasonably expected at the time they entered into the contract. Instead, the court should favour an interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family law context. To arrive at such an interpretation, the court must interpret the provision in the context of the entire contract, including the entirety of the section at issue, to determine the likely intention of the parties.[^57]

[138] As is noted above, I reject Nicole’s submission that the Domestic Contract at issue here ought to be interpreted contra proferentem Robert’s interests because his counsel authored the first draft of the agreement. Both parties and their respective lawyers actively and over an extended period of months drafted the contract in concert with one another.

[139] Nicole relies on the reasoning and decision in Vigneault[^58] in support of her position on the interpretation of the Domestic Contract in issue. In Vigneault, the parties began to cohabit in 1997, married in 2000, had daughters in 2002 and 2004 and separated in 2010. They had entered into a cohabitation agreement to protect the husband’s property from becoming the subject matter of family law legislation in the event of a breakup. The wife had few assets and some student debt. Among other assets, the husband owned the family home, registered in his name and he viewed it as just another investment property. At paragraph 160 the court described the seminal case dealing with the correct interpretation of marriage contracts as being MacDougall[^59] and ruled that:

Upon applying these legal principles to the facts of this case, I come to the conclusion that the cohabitation agreement signed by the parties creates a clear and unequivocal exception to the application of the contract to the family residence, 53 Dylan Way, the only matrimonial home this couple have lived in during their marriage. The plain and ordinary meaning attributed to the words used in paragraph (2) “with the exception of the family residence” support that conclusion. I find no confusion or lack of clarity in the words used.

[140] At paragraph 161, the court adds:

Nor do I find that there is a conflict with either other words in the same section or in other parts of the contract that provides for the exclusion of any division or equalization of the titled property or other claim to property by operation of matrimonial legislative law or by operation of equity. A clear and unequivocal declared exception made for a specifically identified property, as has been done in this contract, with the definition of “family residence”, cannot be in conflict with the rest of the clauses of the contract that exclude all property by the mere fact of it having been excepted by a paragraph of the contract. Unlike the facts and some of the cases presented by the parties, I find no conflict nor apparent inconsistency in the language of this cohabitation agreement.

[141] In paragraph 163, the court reasoned that:

Both contributed to the construction of the home in their own way, either through work or financial contribution, although there is no question that Mr. Massey bore the lion’s share on both these fronts. They both agreed to live in the house for the duration of their marriage and treated as the matrimonial home, regardless of what [was] the original intention for the property. In the face of all of this evidence, I find Ms. Vigneault’s interpretation of the contract, excepting the family residence from the operation of the cohabitation agreement produces the result that both parties would reasonably have expected at the time they signed contract. It is the only sensible result in the context of this marriage of ten years.

[142] In the result, the court held that Ms. Vigneault was entitled to one half the value of the matrimonial home.

[143] Nicole therefore submits that her entitlement under the Domestic Contract in this case is a straightforward and uncomplicated matter and that there is no ambiguity in the contract, which provides a specific exception for the matrimonial home.

[144] The relevant provisions of the Domestic Contract are paragraphs 5.1 and 6.1, which state as follows:

5. PROPERTY RIGHTS

5.1

(a) Rob may soon be the beneficiary of certain gifts or other transactions by which he acquires an interest in 44 Old Forest Hill Road, Toronto, Ontario, which may or may not become a matrimonial home of the parties, as well as an interest in various other corporations. 44 Old Forest Hill Road was acquired for approximately $1.3 million and its current value may well be in excess of that figure. These corporate interests may be worth hundreds of thousands of dollars now, and millions of dollars in the future. Nikki hereby release all her Rights to these assets should Rob acquire them in any fashion as well as any assets or property into which they can be traced in the future.

6. MATRIMONIAL HOME

6.1 The parties’ present residence is leased. The lease expires in approximately two years. At a reasonable period of time before the expiry of the lease Rob and Nikki will jointly purchase a Matrimonial Home. Although it may be financed, Rob will be responsible for the deposit and down payment, which will total between $150,000 and $250,000. The title will be held in joint tenancy. Notwithstanding paragraph 5 hereof, on any Marriage Breakdown the net equity (or proceeds of sale in the case of a sale of the Matrimonial Home) will be shared equally between the parties, but Nikki’s one half of the equity will be excluded from the calculation of her Net Family Property [emphasis added].

[145] The parties entered into the Domestic Contract on October 15, 2007. At that time, they were leasing 44 OFH from MPI and anticipated renting the home for a further two years and then jointly purchasing a matrimonial home. But, instead of following through with that plan, Robert purchased 44 OFH in his name only in 2008 and he still owns it. The parties did not purchase any other home together prior to separation, as is required by the clear language of paragraph 6.1.

[146] In cross-examination, Robert was taken to the provisions of the Domestic Contract referring to the matrimonial home. He agreed that in paragraph 5.1, the contract predicts that 44 OFH may or may not become a matrimonial home. He was asked whether, as such, at the time of the negotiation of the Domestic Contract in October 2007, there was contemplation of Robert acquiring 44 OFH. His answer was “yes”.

[147] Robert was taken to paragraph 6.1, which contains a notwithstanding clause referencing paragraph 5 and contemplates that on any marriage breakdown the net proceeds of the sale of the matrimonial home will be shared equally but that Nicole’s share will be excluded from any calculation of her net family property.

[148] Robert agreed that the Domestic Contract does not say in paragraph 5 that 44 OFH is an excluded property and he agreed that paragraph 5 is overridden by paragraph 6.

[149] Robert did not comply with the requirements of paragraph 6.1. He cannot reasonably be entitled to rely on his non-compliance to disentitle Nicole to the interest paragraph 6.1 creates for her in the matrimonial home upon separation.

[150] Paragraph 5.1 clearly contemplates that 44 OFH may become a matrimonial home and in my view it has done just that.

[151] In their own ways, the parties contributed to the purchase and operation of 44 OFH until Nicole moved out in 2015. Robert created an income-splitting plan which operated over several years, with Nicole receiving portions of his commission income earned at MMC and spending same on family expenses while living at 44 OFH. In addition, Nicole contributed her time and effort to supporting Robert in his business and managing the family household.

[152] Nicole’s position is compelling. She submits that:

A brief review of the contract makes it abundantly clear that the only consideration that Nicole received in exchange for giving up various potential property claims available to her under the Family Law Act was her entitlement to a one-half interest in the matrimonial home. As such, Nicole is simply seeking compliance with this fundamental and essential term, which represents the bargain that was reached by the parties. As Nicole has no real estate, savings or any assets of value, if Robert’s position is accepted, Nicole would essentially be left with nothing after an eleven year marriage and four children despite having entered into a Contract that clearly entitled her to a one-half interest in a matrimonial home. It is submitted that such a result would be absurd and unconscionable. The case law makes it clear that the court should favour an interpretation that provides a sensible result in the family law context.

[153] I agree and therefore find that upon my plain reading of the Domestic Contract in this case, Nicole is entitled to a one half interest in the equity of 44 OFH, the result that both parties would reasonably have expected at the time they signed the contract.

[154] The finding that Nicole is entitled to one half of the equity of 44 OFH entails that she is entitled to one half of 44 OFH’s current equity. This is the result contemplated by the Domestic Contract, which states that proceeds of sale in the case of a sale of the matrimonial home will be shared equally between the parties. In regard to the matrimonial home, the contract did not contemplate a “payout” for Nicole of half the value of the home on the date of separation – if she held title to the matrimonial home in joint tenancy with Robert she would need to be bought out, using the current value of her equity.

Control of the Listing and Sale of the Matrimonial Home

[155] In principle, the parties agree that 44 OFH must now be sold. Nicole is concerned that as Robert has adopted unreasonable positions on the listing prices and marketing strategies for 44 OFH in the past, and given Robert’s behaviour during the course of the litigation on financial disclosure and in failing to comply with Family Law Rules and court orders, he will not cooperate in a productive fashion with her in the listing and sale of the property or obey a court order that he do so.[^60] Nicole is seeking an order for the immediate listing and sale of the matrimonial home, with Nicole having full control over the listing and sale and with any payments owing to Nicole by Robert being paid directly to her from Robert’s share of the net proceeds.

[156] In Milutinovic,[^61] in similar circumstances the court ordered that:

The applicant shall have the conduct of the sale and shall be entitled to choose the realtor, sign the listing agreement, any agreements of purchase and sale and any closing documents concerning the sale of the home. The realtor shall advise the respondent of the progress of the listing and of any offers received concerning the matrimonial home.

Upon the sale of the home, the mortgage, real estate commission and legal fees for the sale shall be paid from the net proceeds of the home. Once these expenses are paid, the remaining net proceeds shall be divided in half.

[157] I agree with Nicole’s position and with the approach taken in Milutinovic to address the matter.

D. The Default Judgment and Writ of Execution

[158] Nicole seeks to have Harold’s default judgment and writ of execution set aside.

[159] It is common ground that Harold issued a statement of claim against Robert seeking payment of $948,840 plus applicable interest and costs based upon a series of promissory notes signed by Robert in Harold’s favour between 2008 and 2015. Almost all of the notes pre-dated Nicole and Robert’s separation on July 30, 2013.

[160] The parties agree that Harold transferred funds pursuant to the promissory notes and that he made no demands of Robert to repay the notes before July 30, 2013, the date of separation.

[161] Nicole did not sign the promissory notes and did not see them before Harold commenced his suit against Robert. On August 22, 2014, she registered a matrimonial home designation on title to 44 OFH; she did not advise Robert or Harold of having done so.

[162] Robert took legal advice and did not defend Harold’s action. Default judgment issued on August 27, 2015 and Harold took out a writ of execution on August 31, 2015 and lodged it against Robert’s interest in 44 OFH. Harold has taken no steps to execute the writ against 44 OFH or against any of Robert’s property to date and has refused to commit to whether he will ever do so.

[163] I have found in a related action[^62] that Harold did not consult or confer with Robert before issuing his demand for payment on the promissory notes, before issuing his statement of claim or before issuing the writ of execution. I found there was no collusion between Harold and Robert for the purpose of defeating, hindering, defrauding or delaying Nicole’s rights as Robert’s spouse.

[164] I accept Harold’s evidence that:

• Harold knew that Robert could not mortgage 44 OFH without his wife’s consent.

• When Harold loaned Robert $200,000 in February 2015 and a mortgage was put on 44 OFH, Nicole provided her consent. Harold knew that she had made a matrimonial home designation on 44 OFH. Harold was squarely asked in cross examination whether he knew “at the time that [Harold] started the lawsuit against Robert, that the only way [Harold] could get any kind of, I’ll call it security, or encumbrance, against 44 Old Forest Hill, was by suing Robert and getting a judgment against him.” Harold replied, “Yes.”

• He understood that if 44 OFH could possibly be a matrimonial home, a consent of a spouse is required to encumber the property.

• He took legal advice and brought his action against Robert for several reasons, including to crystalize Robert’s debt because he did not like or trust Nicole, because he wanted to protect himself against Nicole who he felt was trying to go after 44 OFH and because there was a potential that 50% of his loans and advances would be gone. In Harold’s view, Nicole had reneged on two settlement agreements that Harold had negotiated with her, and he was going to do whatever he could legally do to protect his investments made in that house or in their marriage and get Nicole to live up to her commitments.

[165] Nicole correctly points out that Harold and Robert are father and son and their transactions in creating the promissory notes were not commercial transactions. I view them as not uncommon family transactions that were absolutely common in the Peerenboom family.

[166] As is noted above, Harold has been generous to Robert both during the marriage and after the separation. Indeed, he has assisted Robert financially, including through further loans made after obtaining the default judgment and after swearing that he would not make further loans for Robert. As Harold put it succinctly in cross examination, regardless of the judgment, he would always do as much as he possibly could to assist his son and there was “no way” he would not be helping any of his children.

[167] In arguing that Harold’s default judgment and writ should be set aside, Nicole points out and relies upon sections 21 and 23 of the Family Law Act. Section 21(1) deals with Alienation of the Matrimonial Home and provides that no spouse shall dispose of or encumber an interest in a matrimonial home unless,

(a) the other spouse joins in the instrument or consents to the transaction;

(b) the other spouse has released all rights under this Part by a separation agreement;

(c) a court order has authorized the transaction or has released the property from the application of this Part; or

(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.

[168] Section 21(2) speaks to Setting aside Transactions and provides that if a spouse disposes of or encumbers an interest in the matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home.

[169] Section 21(5) states that the section does into apply to the acquisition of an interest in property by operation of law.

[170] Section 23 addresses the Powers of the Court Respecting Alienation and provides, inter alia, that the court may, on application of a spouse or person having an interest in property, by order,

(d) direct the setting aside of the transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate;

[171] Although Robert did not consent to judgment, Harold, as plaintiff in the action, knew of the nature of Nicole’s claimed interest in the matrimonial home and proceeded to obtain a judgment and a writ of execution without Nicole’s consent.

[172] By affidavit of August 19, 2015, delivered before Harold’s default judgment issued, Robert’s lawyer advised Nicole of the claim. Notwithstanding that notice Nicole took no steps to enquire into the status of the action or the particulars of the promissory notes. She takes the position that the Family Law Rules require that Robert update his financial statement(s) upon learning of significant changes in his financial situation. Nicole submits, and I accept that:

Ultimately, it was only on November 17, 2015[^63] that Robert produced for the first time a financial statement claiming that he owed the debt to his father. This was nearly 2.5 years after the separation, 8 months after Robert had signed an acknowledgment on the Notice of Demand, 5 months after receiving the Statement of Claim and 3 months after the default judgment and related writ of execution were issued and registered. In addition, the November 17, 2015 financial statement incorrectly states that the amount owing to his father as of the date of separation is $948,840. As the default judgment included the $200,000 loan/mortgage from February 2015 (well after the separation) they could not possibly have formed a debt on the valuation date. Similarly, the $100,000 “debt” to Lindsay arose after separation and should not have been included as a debt owed on separation.

[173] In support of her position on this issue, Nicole relies on Buttarazzi[^64], a case in which the court denied an execution creditor the right to execute upon spousal assets in circumstances where the creditor was found to be acting not at arm’s length with the applicant husband, the husband had consented to the judgment upon which the writ of execution was based, the husband and the creditor proceeded to judgment contrary to the provisions of a non-dissipation order and where the:

Consent to judgment afforded [the husband] a significant tactical advantage in the family law proceeding. Not only did it provide the opportunity to divest him of assets, such a debt drastically reduced his net family property, shielding him from an equalization payment otherwise owing to his spouse.[^65]

[174] The court found that the creditor and the husband had acted in concert and that the creditor’s claim, the subject of the consent judgment, was entirely without merit. The court concluded that the consent to judgment was an abuse of process, in that it was wholly entered into for an improper purpose: to defeat claims in a parallel court proceeding between the applicant and the respondent.[^66] It also found that to allow the creditor to execute on its judgment would cause a grave prejudice to the respondent and permit an oppressive course of action.[^67]

[175] The decision confirmed that it is important that spouses are well and truly advised that an execution creditor who is not at arm’s length and who takes with notice of a competing spouse’s claim does so subject to the court’s discretion and the court’s discretion can be exercised by an order setting aside the offending judgment or by a stay of execution per section 106 of the Courts of Justice Act. In the result, the court stayed execution of the judgment.

[176] As Robert and Harold did not act in concert with respect to Harold’s action upon the promissory notes and Robert did not consent to judgment and they did not enter into the loan transactions and the execution of the promissory notes with a jointly held view of defeating Nicole’s claims eventually made in this action, Buttarazzi is distinguishable on its facts from the instant case. I accept, however, the legal principles upon which Buttarazzi is founded.

[177] I also accept the principle which Nicole quotes from Walduda[^68], another case that is distinguishable on its facts from this case, that:

The matrimonial home occupies a special place in the statutory regime for family property, as it is both the shelter and focal point of family life and (likely) the most significant asset owned by either spouse during marriage.

[178] In Walduda, a spouse and her sister contrived a plan leading to a loan arrangement made after separation and founded upon a shared intent to encumber the matrimonial home on the basis of a writ of execution based on a consent judgment. The writ was set aside.

[179] In Boyd[^69], the husband held title to the matrimonial home at the date of separation and the wife filed a matrimonial home designation on title. The husband’s lawyer later sued the husband for unpaid legal fees and obtained a default judgment and a writ of execution. The lawyer continued to act as counsel for the husband in the matrimonial proceedings.

[180] In the instant case it is clear that Harold took legal advice and then instituted his action to crystalize Robert’s debt to him as supported by the promissory notes. Nicole submits, and I accept as proven, that the enterprise Harold put in place in order to obtain the default judgment was initiated because of Nicole and more specifically what Harold considered to be her greed and Harold’s belief that she had reneged on various agreements. Harold specifically acknowledged that he was aware of Nicole’s matrimonial home designation and her court application seeking an interest in the matrimonial home and that this was the only method by which he could have obtained an encumbrance against 44 OFH without Nicole’s consent. As well, Harold knew that Robert could not repay him the amount claimed (except from the equity in the home) and he was upset at Nicole for claiming an interest in the home, which he had put money into. The default judgment had nothing to do with actually securing repayment from Robert and everything to do with ensuring that the equity in the home was put beyond Nicole’s reach.

[181] According to the legal principles established by the case law outlined above, Harold, as a non-arm’s length party to a spouse holding title to a matrimonial home that is the subject of litigation, with notice of that litigation and the claim to the equity in that home, is not permitted to encumber the matrimonial home in an attempt to interfere with that claim. I agree with the conclusion in Walduda that a writ of execution filed by a third party who is not acting at arms-length is an “encumbrance” for the purposes of s.21(1) of the Family Law Act.[^70] This is a transaction which section 21(1) seeks to engage.

[182] I agree also with the conclusion in Boyd that such a writ should not be protected by section 21(5) of the Family Law Act because it arises by “operation of law”. This is not the type of ordinary commercial transaction that the purpose and spirit of section 21(5) seeks to protect. In this case, like in Boyd, the encumbrance on the matrimonial home is not an indirect result of commercial transactions but just as direct in its intended effect as the sale or mortgaging of the home without the consent of the other spouse.[^71]

[183] For these reasons, I hereby stay the writ of execution related to the default judgment.

Value of Judgment for Equalization Purposes

[184] Nicole delivered an updated Net Family Property Statement, dated October 18, 2018, in which she calculates the equalization payment that Robert owes her to be $87,734.28.

[185] She places a value of zero against the $948,840 judgment debt, as she sought to have the judgment and related writ set aside. She has not achieved that goal, however, as execution on the writ has been stayed, it is necessary to place a value upon Robert’s personal loans from Harold.

[186] As is noted above, the value I place on the loans identified on Robert’s financial statement and in Schedule A to the domestic contract, totalling $60,000, is zero.

[187] Nicole correctly points out that Harold did not make any demand for repayment in relation to any of his loans to Robert prior to the date of separation and it was his evidence that the agreement was that the debts would be repaid when the matrimonial home was sold. In fact, no demand for repayment was made until March 2015, more than 1.5 years following the separation. The most significant amounts date back to 2008 and Robert’s first two financial statements do not show any debt owing to Harold beyond the $60,000 discussed above. Robert’s own testimony was that he may have viewed the amounts as gifts at the time and that he was surprised to receive a demand for repayment. In light of this and for the reasons set out in the default judgment section, any alleged debts owing to Harold should be treated as zero for NFP purposes as of the valuation date.

[188] In addition, I find that Harold would not have demanded payment of the money loaned pursuant to the promissory notes if Nicole and Robert had not separated and if Nicole had not instituted this action. It is also clear that Harold is a man of considerable financial means and he does not need the money at issue in the promissory notes he took from Robert.

[189] It is highly unlikely that Harold will pursue repayment during his lifetime. Harold testified that he believes his will requires that loans to his children outstanding upon his death and that of his wife will be deducted from amounts that each child will otherwise receive from the estate. He produced will documents and was surprised to see that that result may not follow from an interpretation of the current language of the will. Harold may well revise his will to clarify his intention.

[190] Nicole relies on Cade[^72], a 2004 decision of the Ontario Court of Appeal in which an outstanding debt was dramatically discounted for equalization purposes because the likelihood it would ever be repaid was extremely low. Other cases in which debts have been highly discounted include M.B.[^73]; Stetler[^74]; and A.A.[^75].

[191] In the circumstances, I discount the debts owing from Robert to Harold to zero for equalization purposes. As such, the equalization payment that Robert owes Nicole remains at $87,734.28.

E. Divorce

[192] Both parties seek a divorce order. They separated on July 30, 2013 and have remained separated since. There is no possibility of reconciliation. Order to go as asked.

Conclusion

[193] A final order shall issue that:

1. The applicant, Nicole Peerenboom (“Nicole”) and the respondent, Robert Peerenboom (“Robert”) shall be granted a divorce, dissolving their marriage.

2. Robert’s income for support purposes shall be deemed to be $100,000.

3. Commencing on the date of these reasons and on the first day of each month thereafter, Robert shall pay to Nicole the sum of $1,534 per month, being the offset table amount of child support for four children, namely Alexandra Avery Peerenboom, born March 5, 2005, H.R. Benjamin Peerenboom, born July 31, 2008, Payton Lillian Peerenboom, born June 2, 2010 and Fredrick Robert Peerenboom, born August 10, 2011 (“the children”) based on an annual income of $100,000 for Robert and an annual income of $30,000 for Nicole.

4. Nicole’s claim on account of Robert’s alleged underpayment of table child support for the period from August 1, 2015 to September 30, 2018 is dismissed.

5. As to the cost of the children’s private school fees and uniforms at Crestwood and summer camp at Crestwood, these expenses have historically been provided/paid for by Harold who owns Crestwood and may not be affordable without Harold’s assistance. Any additional special or extraordinary expenses that are agreed upon by the parties in advance shall be paid in proportion to their respective incomes, with Robert contributing 77% and Nicole contributing 23%. Consent shall not be unreasonably withheld.

6. Nicole may claim the Canada Child Tax Benefit including the National Child Benefit Supplement for the first six months of each calendar year for the children and Robert may claim the Canada Child Tax Benefit including the National Child Benefit Supplement for the latter six months of each year, provided that both parties receive the total eligible amount equally. Nicole and Robert may equally claim the eligible dependent credit (formerly, equivalent to spouse credit) for the children. If only one party receives the entire benefit for the year, he/she will give half of it to the other party. These benefits will not affect the child support.

7. Commencing on the date of these reasons and on the first day of each month thereafter, Robert shall pay to Nicole spousal support in the amount of $440 per month. This amount shall be taxable to Nicole and tax deductible to Robert.

8. Nicole’s claim for payment of an alleged underpayment of net spousal support from August 1, 2015 to September 30, 2018 is dismissed.

9. Robert shall receive a credit against his prospective child/spousal support obligations in the amount of $135,000 on account of the uncharacterized advance made by him to Nicole pursuant to the Consent Order of Justice McWatt dated February 12, 2015. This credit represents the acceleration of future support payable on a periodic basis for the sole purpose of securing funds for Nicole.

10. The within credit shall last 69 months from the date of these reasons at which point in time the child and spousal support payments fixed under this order shall become payable by Robert on a monthly basis.

11. Robert shall obtain/maintain and irrevocably designate Nicole as beneficiary, in trust for the children for the portion relating to child support, a policy or policies of insurance on his life, having a total face value of no less than $300,000, to secure his child and spousal support obligations and he shall maintain the policy/policies in good standing.

12. In the event that Robert’s life insurance policy/policies is/are not in place on the date of Robert’s death, his support obligations will be secured by a first charge against his estate.

13. Robert shall maintain Nicole and the children as beneficiaries of any extended health insurance available to him through his employment for as long as they are entitled to support.

14. Nicole is entitled to a one half interest in the matrimonial home located at 44 Old Forest Hill Rd., Toronto (“matrimonial home”) pursuant to paragraph six of the Domestic Contract dated October 15, 2007.

15. In light of the above, the matrimonial home shall be sold and Nicole shall receive a payment from the net proceeds equal to one half of the current equity in the matrimonial home.

16. In accordance with the consent order of Justice McWatt dated February 12, 2015, Robert shall be solely responsible for the $200,000 charge to Harold Peerenboom (“Harold”) registered on February 25, 2015. Nicole’s one half of the equity above is calculated without regard to this debt.

17. Robert shall also be solely responsible for any other debts or judgements affecting the equity of the matrimonial home that were obtained without Nicole’s consent. Nicole’s one half of the equity above is calculated without regard to these debts.

18. Pursuant to section 23(d) of the Family Law Act, the writ of execution dated August 31, 2015 related to the default judgement in action No.CV-15-529553 is hereby stayed.

19. If necessary in order to satisfy any payment obligations owing to Nicole, an order for the transfer of property from Robert to Nicole, including a vesting order and/or an order for the partition and sale of the matrimonial home with Nicole having full carriage and control of all aspects of the listing and sale together with the authority and ability to convey title without Robert’s signature or consent, which is hereby dispensed with.

20. Robert owes Nicole an equalization payment in the amount of $87,734. This payment shall be made to Nicole from Robert’s one half share of the equity in the matrimonial home.

21. The parties shall each retain their own personal possessions and any personal household items, including jewelry, that were owned by them on the date of marriage, that were received by them as a gift or inheritance during the marriage, or that were purchased by them post separation. All other items that are located in the matrimonial home shall be divided equally between the parties.

22. For as long as child support is to be paid, the payor and the recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.

23. Unless this order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director, upon the expiry of 69 months from the date of this final order, and amounts owing under the order shall be paid to the Director, who shall pay them to whom they are owed.

24. This order bears interest at the rate of 3% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

25. Robert shall pay pre-judgment and post-judgment interest on all amounts found to be owing to Nicole in accordance with the Courts of Justice Act.

26. Any costs ordered against Robert shall be payable from his share of the net proceeds from the sale of the matrimonial home.

27. The parties are encouraged to resolve costs issues between/among them but if they do not do so within 30 days, Nicole and/or Harold may deliver written submissions of up to three pages in length, together with Bills of Costs and any relevant offers to settle to the trial coordinator to my attention within 15 days thereafter and may deliver written responding submissions of up to three pages in length together with Bills of Costs and any relevant offers to settle to the trial coordinator to my attention within 10 days of receipt of submissions claiming costs from her/him. No reply submissions will be received or considered.

Moore J.

Released: December 20, 2018

[^1]: Trial Record, Exhibit 19. [^2]: Supplementary Trial Record, Tab 9. [^3]: Also a term of the February 12, 2015 order of McWatt J. [^4]: Including net rental income from 44 OFH of -$23,454 [^5]: Including RRSP income of $158,907 and net rental income of -$17,948 [^6]: Harold testified that he provided Robert with an American Express card that was supposed to be used for his MBA travel only, but when he checked the balance, he discovered that Robert had spent between $180,000 and $190,000 on that card. [^7]: Robert drove a BMW convertible and Nicole drove a Range Rover. [^8]: Bank accounts referenced are Robert’s Scotiabank account **6729 and the accounts of 1727404 Ontario Inc. [^9]: Adjusted to include monthly mortgage payments of approximately $3,500 per month ($42,000 per year), which Robert acknowledged he was making despite the expense not being listed on his financial statements. [^10]: Includes loan from Harold in the amount of $60,000 in February 2015. [^11]: Robert swore three financial statements in 2015. [^12]: No information provided by Robert for his Scotiabank account **6729 for the months of January to September 2016. [^13]: Robert swore two financial statements in 2016. [^14]: Incudes cashing in of RSP’s in the amount of $112,167 in January 2017. [^15]: Budget does not include any amounts for property taxes, property insurance or utilities, which were not listed by Robert despite being paid by him during this period. According to Robert, he did not list them as he was renting out the home and the expenses were being offset by rental income of $6,500 per month. [^16]: No information available for the months of September to December 2018. [^17]: Budget does not include any amounts for property taxes, property insurance or utilities, which were not listed by Robert despite being paid by him during this period. According to Robert, he did not list them as he was renting out the home and the expenses were being offset by rental income of $6,500 per month. [^18]: Sworn September 6, 2018 [^19]: R.S.O. 1990, c. F.3, as am. [^20]: Sos-Porritt v. Porritt, 2015 ONCJ 477, at para. 86. [^21]: Clapp v. Clapp, 2014 ONSC 4591, 48 R.F.L. (7th) 329 at para. 21. [^22]: Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711, at para. 32. [^23]: Cumming v. Liu, 2012 ONSC 3121, at paras 43, 47 and 49. [^24]: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196 at paras. 40, 41 and 43 [^25]: Supra, at paras. 40, 57-73, 79 and 81 [^26]: Supra, at para. 73 [^27]: Korman v. Korman, 2015 ONCA 578 [^28]: Supra, at paras. 62-63 [^29]: Supra, at para 66 [^30]: Malkov v. Stovichek-Malkov, 2017 ONSC 6822, at para. 69 [^31]: Supra, at para 70 [^32]: Supra, at paras. 72-73 [^33]: Teitler v. Dale, 2017 ONSC 248, at para 53 [^34]: M.B. v. S.B.B., 2018 ONSC 4893, at paras 104-106 [^35]: Supra, at para 123 [^36]: A.L. v. J.N., 2017 NBCA 25 [^37]: Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 611, at para. 13; Blatherwick v. Blatherwick, 2015 ONSC 2606, at para. 331; and Homsi v. Zaya, 2009 ONCA 322, at para. 38. [^38]: Milutinovic v. Milutinovic, 2018 ONSC 4310, at paras. 6, 15 and 17. [^39]: Supra at paras. 25-26. [^40]: Supra at paras. 54 to 58. [^41]: Trial Record, Tab 9. [^42]: Exhibit 8. [^43]: Mr. Sommerville prepared an expert report (Exhibit B, Tab 11) and testified about the current market rent for 5 Valleyanna Drive. He concluded that the current market lease rate is $6,150 to $7,000 per month. [^44]: A figure that approximates his expenses shown for 2017 on his Financial Statements. [^45]: Roseneck v. Gowling (2002), 2002 45128 (ON CA), 62 O.R. (3d) 789 (C.A.). [^46]: The value of which he recognized by splitting his commission income with Nicole, as is described above. [^47]: Including Robert’s assertion that his income was only $74,400 per year. [^48]: S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, 270 D.L.R. [^49]: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para. 212. [^50]: R.S.C. 1985, c. 3 (2nd Supp.). [^51]: Milutinovic at paras. 102, 103, 105 and 107, Charron v. Carriere, 2016 ONSC 7523, 86 R.F.L. (7th) 108 at para. 17, and Poulin v. Poulin, 2017 ONSC 64 at paras. 111, 112, 115 and 116. [^52]: See paras. 105 and 107. [^53]: $135,000 divided by $8,583 per month = 15.7 months, which has been rounded up to 16 months. [^54]: Britz v. Brazeau, 2018 CarswellOnt 4353 (Ont. S.C.J.) at paras. 46 to 48 referring to the Ontario Court of Appeal decision in Katz v. Katz, 2014 ONCA 606, [2014] O.J. No. 3909 (Ont. C.A.). [^55]: Vhora v. Vhora, 2016 ONSC 2951, at paras. 98 to 100. [^56]: Anderson v. Anderson, 1992 CarswellOnt 1659 (Ont. U.F.C.) at para. 17. [^57]: MacDougall v. Macdougall (2005), 2005 44676 (ON CA), 262 D.L.R. (4th) 120 (Ont. C.A.) at paras. 20 and 22. [^58]: Vigneault v. Massey, 2012 ONSC 3445, at paras. 128-132, 136, 151 and 158 to 165. [^59]: Macdougall, Supra. [^60]: The concern considered in Milutinovic v. Milutinovic, 2018 ONSC 4310 at para. 109. [^61]: Supra, at para 110 and 111. [^62]: CV-16-554084 [^63]: Trial Record, Tab 11. [^64]: Buttarazzi v. Buttarazzi (2009), 2009 80136 (ON SC), 84 R.F.L. (6th) 240 (Ont. S.C.J.). [^65]: Supra, at para. 65. [^66]: Supra, at para. 67. [^67]: Supra, at para. 68. [^68]: Walduda v. Bell (2004), 2004 4037 (ON SC), 7 R.F.L. (6th) 205 (Ont. S.C.J.) at para. 14. [^69]: Boyd v. Boyd (2008), 2008 1417 (ON SC), 54 R.F.L. (6th) 460 (Ont. S.C.J.). [^70]: Walduda at para. 13. [^71]: Boyd at para. 18. [^72]: Cade v. Rotstein, 2004 24269 (ON CA), 50 R.F.L. (5th) 280, at paras 7 and 8 [^73]: M.B. v. D.T., 2012 ONSC 840, at para 194 [^74]: Stetler v. Stetler, 2012 ONSC 4466, at para 55 [^75]: A.A. v. Z.G., 2015 ONSC 4397, at para 145