COURT FILE NO.: FC-15-2528
DATE: 2019/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Diane Louise Chaulk
Applicant
– and –
Wade Chaulk
Respondent
Aaron Heard, Counsel for the Applicant
Self-represented
HEARD: February 26, 2019
REASONS FOR JUDGMENT
Justice Engelking
[1] On February 1, 2018, I heard a Summary Judgment Motion brought by the Applicant, Ms. Chaulk, for spousal support, equalization of the parties’ net family property as well as an unequal division of the NFP, an unjust enrichment claim relating to post-separation debts and/or indemnification for same, certain orders pertaining to the holders of Mr. Chaulk’s Loss of Retirement Income Benefit (LRI) (with the Workplace Safety & Insurance Board) and Registered Pension Plan (RPP) (with Great West Life) and costs. On February 6, 2018, I released my Reasons for partial Judgment and I ordered that matter be scheduled back before me to make a determination on equalization once the Applicant has secured the necessary information for it to proceed, based on the orders for disclosure which were provided therein. This is the return of that motion.
[2] Today, Ms. Chaulk seeks an order for equalization of the parties NFP and/or an unequal division of same as follows:
(a) An Order that in partial satisfaction of the Applicant’s equalization entitlement the Applicant shall receive one hundred percent of any payout received by the LSUC Compensation Fund with regards to payment for the lost $43,742.08 in proceeds from the sale of the parties’ matrimonial home.
(b) An Order that the Respondent’s LRI (Loss of retirement Income Benefit), valued at $56,017.86 as of April 30, 2018 shall be divided to satisfy any remaining entitlement owing to the Applicant under equalization on top of any funds received by the LSUC Compensation Fund.
[3] Mr. Chaulk, who lives in Newfoundland, participated by telephone. In his submissions, Mr. Chaulk requested that the issue of spousal support be revisited by the court. However, a final order was made in this regard on February 6, 2018. The proper avenue to seek to readdress the issue of spousal support would be by Motion to Change the Final Order, and it would require a material change of circumstances from the date of the last order. I will thus not be dealing with that issue today.
[4] At the date of my last order, the value of two of Mr. Chaulk’s date of separation assets were unknown. Since that date, Ms. Chaulk has been able to confirm with Great West Life that the value of his retirement pension was $36,413.15 as of December 10, 2015, the date at which he cashed it out, which was approximately three months post-separation of the parties. Mr. Chaulk appears not to have transferred that amount into another retirement vehicle; rather it appears that the money has been spent. Ms. Chaulk has also been able to confirm with WSIB that as of April 30, 2018 the value of Mr. Chaulk’s LRI was $56,017.86. Thus, the only remaining assets that Mr. Chaulk has left from which to pay Ms. Chaulk either an equal or unequal division of the net family properties are his one half share of the anticipated payout from the LSUC Compensation Fund relating to the proceeds of sale of the matrimonial home and his WSIB Loss of Retirement Income Benefit.
[5] Ms. Chaulk has provided a Net Family Property Statement that reveals that an equal division of the parties NFP’s, taking into account these date of separation assets, would result in Mr. Chaulk being required to pay her $40,815.51. While Mr. Chaulk disputes this amount based mostly on no value being placed on the household goods and furniture which remained in Ms. Chaulk’s possession at the time of separation, he did not provide any evidence as to what he believed those values to be, nor did he file his own Net Family Property Statement. For lack of any other or better evidence, I accept that the values contained in Ms. Chaulk’s NFP statement reflect the parties date of marriage and date of separation assets and debts, and I find them to be as follows:
Assets on Valuation Date
Wife
Husband
602A Chapman Drive, Ottawa
$110,000.00
$110,000.00
Cars, Boats, Vehicles
$9000.00
RBC Joint Checking Account
($296.00)
($296.00)
RBC Savings Account
$1,800.00
GW Life Pension
$36,413.15
WSIB LRI
$56,017.86
TOTAL
$120,504.00
$202,135.01
Debts and Liabilities on Valuation Date
Wife
Husband
Mortgage – 602A Chapman Drive, Ottawa
$81,126.11
$81,126.11
RBC Joint Credit Card
$4,351.49
$4351.49
TOTAL
$85,441.60
$85,441.60
Assets on Marriage Date
Wife
Husband
TOTAL
$0.00
$0.00
Debts and Liabilities on Marriage Date
Wife
Husband
TOTAL
$0.00
$0.00
Net Value of Property on Valuation Date (Assets – Debts and Liabilities)
$35,062.40
$116,693.41
Net Value of Property on Marriage Date
$0.00
$0.00
Net Family Property
(Net Value of Property on Valuation Date – Net Value of Property on Marriage Date)
$35,062.40
$116,693.41
Difference Between NFP
$81,631.01
Equalization Payment
$40,815.51
[6] The equalization payment which Mr. Chaulk owes Ms. Chaulk is thus $40,815.51. As was indicated in my decision of February 6, 2018, the parties had a claim filed with the Law Society of Ontario Compensation Fund due to an individual from the firm which handled the sale of their matrimonial home having absconded with the proceeds of sale. The claim is for $43,742.08, of which each party is entitled to one half, or $21,871.04. That portion of the equalization payment to which Ms. Chaulk is entitled can be satisfied by order of the court that the Law Society Compensation Fund pay out the entire amount of $43,742.08 to Ms. Chaulk. Ms. Chaulk submits that the remaining amount of $18,980.47 be satisfied by way of a transfer from Mr. Chaulk’s LRI into a retirement vehicle for Ms. Chaulk.
[7] The combination of Mr. Chaulk’s one half interest in the compensation payment from the Law Society and the roll-over of $18,980.47 would satisfy the payment owed to Ms. Chaulk by Mr. Chaulk if the parties’ net family properties are divided equally. However, Ms. Chaulk also claims an unequal division of the NFP pursuant to section 5(6) of the Family Law Act,[^1] which provides:
The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable having regard to,
(a) A spouse’s failure to disclose to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) The fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) The part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) A spouse’s intentional or reckless depletion of his or her net family property;
(e) The fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) The fact that one spouse has incurred disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) A written agreement between the spouses that is not a domestic contract; or
(h) Any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[8] With respect to the issue of unconscionability, the Ontario Court of Appeal has said in the case of Serra v. Serra, 2009 ONCA 105, at paragraph 47:
[47] In this regard, the threshold of “unconscionability” under s. 5 (6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”.
[9] Ms. Chaulk submits that Mr. Chaulk’s post-separation behaviour renders an equal division unconscionable. First, she submits, Mr. Chaulk deliberately cashed out his Great West Life pension and depleted the funds within three months of separating. Second, he drove up the joint line of credit, which she thought was closed, to the tune of $40,875.58. Finally, he has been remiss in paying spousal support, and arrears continue to accumulate. Ms. Chaulk is concerned that although this court has already made an order that Mr. Chaulk is to indemnify Ms. Chaulk from any liability for the joint line of credit and two other post-separation debts he incurred, she will nevertheless be left responsible for them.
[10] Mr. Chaulk argues that an unequal division would not be proper in this case. He submits that he had to cash out his Great West Life pension as he was without means and had nothing to live on. His position is that he left his home of 37 years with nothing but the clothes on his back. He states that he was a good provider to his family until he sustained a brain injury in 2002 which subsequently rendered him incapable of working, and he now suffers from chronic pain and heart problems. Mr. Chaulk has acknowledged that he is solely responsible for the post-separation debts he incurred in his and Ms. Chaulk’s joint names. He is also concerned that the only thing he has left upon which to base his own retirement is his Loss of Retirement Income Benefit from WSIB, and that if it is further encroached upon, he will not be able to survive, if and when he turns 65.
[11] This court ordered on February 6, 2018 that Mr. Chaulk was to indemnify Ms. Chaulk from any liability for $8000 on the parties’ joint Royal Bank of Canada credit card, $40,875.58 on the parties’ joint line of credit with the Bank of Montreal, and $600 overdraft on the parties’ joint bank account, all of which were incurred by him post-separation. Those debts are to be his, and his alone. Having done so, I am not of the view that an equal division of the parties’ net family properties would be unconscionable. The post-separation actions of Mr. Chaulk complained of by Ms. Chaulk, moreover, do not fall within the delineated list of factors to which the court is to have regard in (a) through (h) of section 5(6) of the FLA.
[12] In keeping with Hyrniak v. Mauldin[^2] I am satisfied that this matter can be fairly and justly adjudicated without the necessity of a trial. There will, thus, be an equal division of the net family properties, and Mr. Chaulk will owe Ms. Chaulk an equalization payment of $40,815.51.
Order
[13] Summary Judgment is granted as follows:
The Respondent shall pay to the Applicant an equalization payment of $40,815.51;
In partial satisfaction of that equalization entitlement, the Applicant shall receive one hundred percent of any payout from the LSUC (or Law Society of Ontario) Compensation Fund for which the parties are eligible in regards to payment for the lost $43,742.08 in proceeds from the sale of the parties’ matrimonial home;
In further satisfaction of the Applicant’s equalization entitlement, the Applicant shall be entitled to receive $18,980.47 from the Respondent’s LRI (Loss of retirement Income Benefit) with WSIB, either by way of a direct payment to her or by way of a roll over to a retirement vehicle in her name, and the Workplace Safety & Insurance Board shall facilitate the transfer of the equalized portion of the LRI to the Applicant.
This order bears interest at the rate of percent per annum.
Costs
[14] If the parties cannot agree on liability for the costs of the trial, written submissions not exceeding two pages together with a bill of costs and offers to settle can be made to me. Ms. Chaulk’s costs submission are to be provided by March 15, 2019. Mr. Chaulk shall then have 10 days to provide his response, followed by 5 days for Ms.Chaulk’s reply, if any, after which I will make an order.
Madam Justice Tracy Engelking
Released: February 27, 2019
COURT FILE NO.: FC-15-2528
DATE: 2019/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
Between:
Diane Louise Chaulk
Applicant
-and-
Wade Chaulk
Respondent
REASONS FOR JUDGEMENT
ENGELKING J.
Released: February 27, 2019
[^1]: R.S.O. 1990, c.F.3, as am.
[^2]: 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. at paragraph 66