Court File and Parties

Court File No.: FS-15-15403305 Date: 2019-01-08 Ontario Superior Court of Justice

Between: Lisa Rezai, Applicant – and – Glen Gibbons, Respondent

Counsel: Lisa Rezai, on her Own Behalf Glen Gibbons, Not Appearing

Heard: January 7, 2019

Before: C. Gilmore, J.

Overview

[1] This matter proceeded as an uncontested trial. Only the applicant and her mother gave evidence. The applicant seeks significant and substantive relief as per her application.

[2] This matter has a lengthy litigation history. The application was issued in June 2015. After years of litigation, the matter culminated in an incident in July 2018 which led to a restraining order being issued against the respondent. He was prohibited from contacting both the applicant and the parties’ daughter, C.G. The restraining order continues in effect.

[3] In September 2018, the applicant brought a motion for various relief. The respondent did not appear. The applicant had filed a formal affidavit of service of the motion material. The motion’s judge requested that the applicant provide oral evidence regarding service. After that evidence, the motion’s judge was satisfied that the respondent had had notice of the proceeding.

[4] After granting the relief sought by the applicant on the motion, the court fixed a Trial Management Conference date for November 16, 2018. The endorsement specifically stated that a trial date would be set on the Trial Management Conference date. The court also ordered that certain exhibits and the handwritten endorsement be served on the respondent. A copy of the issued order was to be served on the respondent when available. The applicant deposed that she served the order on the respondent as required.

[5] The respondent did not appear on November 16, 2018. The court was satisfied that the respondent had notice of the Trial Management Conference by way of service of a Form 17F on November 13, 2018. The court ordered that the matter proceed by way of uncontested trial on January 7, 2018. Further, the court directed that the respondent was not entitled to participate in the uncontested trial, not entitled to further notice of any matters related to the trial, and that the applicant was not required to serve any of the trial documents on the respondent.

[6] The applicant filed a trial record, an affidavit in support of Uncontested Trial and an Exhibit Book containing 56 multi-paged exhibits in support of her affidavit. Her material was comprehensive and focused as was her evidence at trial.

Factual Background and Litigation History

[7] The parties were married on June 18, 2010 and separated on February 3, 2013. They have one daughter, C.G. born October 30, 2010, now aged 8.

[8] The applicant commenced her application in June 2015. The respondent filed an Answer in July 2015.

[9] The applicant brought an urgent motion on June 30, 2015. The motion was settled and the respondent agreed to pay a lump sum of $10,000 undifferentiated support by July 17, 2015. He also agreed to pay for the household utilities, internet, hydro, cable, property taxes, home insurance and mortgage and provide proof of same to the applicant.

[10] In September 2015, the applicant brought a motion for child support, spousal support and financial disclosure. The mortgage and household payments were in default and the respondent had not paid further support since the July 17, 2015 lump sum payment. The motion was adjourned to a long motion date on October 27, 2015.

[11] On October 27, 2015 the court ordered that the respondent pay undifferentiated support of $10,000 per month commencing November 1, 2015. He was also ordered to provide certain disclosure. The respondent has continued to pay undifferentiated support of $10,000 per month since November 1, 2015 without interruption.

[12] On the return of motions brought by both parties on March 15, 2016 the parties agreed to list the matrimonial home on Douglas Crescent for sale. The parties agreed that the applicant would have the first right of refusal to match any purchase price from a bona fide third party purchaser.

[13] The respondent brought a motion related to access and travel. That motion was resolved on consent on June 16, 2016.

[14] A long motion was scheduled for November 24, 2016. The motion was adjourned to March 14, 2017 based on the applicant’s request for an adjournment. She sought questioning and further disclosure from the respondent regarding his involvement with Caravel Capital Investments Inc. On the November 24, 2016 date the parties agreed that the applicant could travel with C.G. without the respondent’s consent and that the respondent would not consume alcohol 24 hours before access or during access. Further terms of access were also agreed upon.

[15] At the return of the long motion on March 14, 2017 the parties agreed to jointly retain an expert to do a valuation of the respondent’s income with the expert’s fees to be paid from the house sale proceeds. They further agreed that the fees for the valuator were subject to re-apportionment. The balance of the motion was adjourned to June 5, 2017.

[16] On June 5, 2017 the court ordered certain terms of summer access to C.G. by the respondent. As well, the valuator’s fees of $32,000 were ordered to be paid from the house sale proceeds.

[17] As a result of an incident which occurred on July 28, 2018, a temporary restraining order was issued against the respondent without notice on August 16, 2018. The respondent was not permitted contact with the applicant or with C.G. or to be within 500 metres of their location at any time. The matter was to return on September 20, 2018.

[18] On September 20, 2018 the applicant was granted temporary custody and decision making. The restraining order was to continue. A copy of the September 20th order was sent to the respondent as he did not appear.

[19] A trial management conference was held on November 16, 2018 and the uncontested trial date set.

[20] The applicant has provided a detailed draft order setting out the extensive relief she is requesting. In general, I am satisfied that the material filed supports the orders requested with some exceptions as will be detailed below.

Custody and Access

[21] The applicant has been C.G.’s primary caregiver from birth. Since separation, she has, with some assistance from her family and the respondent’s family, continued to solely care for C.G.

[22] The respondent has lived in the Bahamas for the last three years. There is no indication that he intends to return. His access has been sporadic and unpredictable. He has had only one night of unsupervised access since the parties’ separation almost six years ago. After the restraining order was issued in August 2018, the applicant heard nothing from the respondent for a period of over five weeks.

[23] The July incident and ensuing weeks were very hard on C.G. who felt abandoned by her father and did not understand why he had disappeared from her life.

[24] The respondent has a history of alcoholism accompanied by anger and reckless behaviour. Some of this behaviour has been observed by the child.

[25] Some details of the incident leading to the issuance of the restraining order are necessary to understand the applicant’s request for supervised access.

[26] On July 28, 2018 the respondent was exercising access to C.G. After C.G.’s horseback riding lesson, the respondent took her to visit his brother’s family. He became enraged after he saw C.G. trying to photograph him with her phone after he had been drinking. He dropped C.G. off at her maternal grandparent’s home and proceeded to call the applicant and threaten to kill her. He also threatened the applicant’s parents. The applicant then received a call C.G. who was frantic and crying, saying she “got mad at daddy for drinking wine and then I tried to take a picture and send it to you and then daddy got really angry.” She told the applicant she did not want to see her father for the planned access visit the next day and that he was a monster and scary. She blamed herself for the incident.

[27] The applicant recorded her telephone conversations with C.G. and with the respondent from that evening and provided the transcripts as exhibits to her affidavit. In part of that transcript, the respondent is recorded as saying, “Go to the police and send them I don’t give a fuck. You should be scared, you want to play and I will kill everyone. Go call the fucking cops you stupid cunt.”

[28] As a result of this incident, the August 2018 restraining order was issued and is still in place. The only exception is if C.G. wishes to contact her father by telephone, she is permitted to do so. Some telephone access has taken place as C.G.’s request, however C.G. has not seen her father since the July 28, 2018 incident.

[29] This incident was not the first time that the applicant had been threatened by the respondent. I accept the extensive evidence in her affidavit that the severity and frequency of the respondent’s threats increased over time. He has threatened to “burn down” the matrimonial home, ruin the applicant’s career by making up defamatory allegations, “bury” her and her lawyer, and disappear into the Bahamas to ensure his money would be hidden from her.

[30] The respondent is an alcoholic. His drinking became worse when he was faced with financial pressure from his work as a hedge fund manager. His alcoholism became a serious problem in the marriage. The applicant provided the following examples; a. The respondent hid alcohol around the house and in the garage. b. At a birthday party held for C.G. at a restaurant, the respondent became so drunk he passed out on the table and had to be carried out of the restaurant by a friend. c. The respondent is an angry drunk whose demeanour changes when he is drinking. He becomes agitated, paranoid and violent. d. The applicant provided an email from the parties’ nanny from shortly before separation. The nanny was concerned that the respondent was not fit to care for C.G. when he came home after a night of drinking. When the nanny confronted him about his ability to care for C.G. he became angry and aggressive and told her to “Fuck off.” The nanny left very distressed and was concerned about C.G.’s well-being. e. At a wedding in Bahamas in October 2015 the respondent was drunk and became involved in an altercation with another guest. He was temporarily detained in a Bahamian prison. f. A friend of the applicant’s reported that she saw the respondent at a house party on March 30, 2018. The respondent was so drunk he was asked to leave the party. The friend was concerned as she knew that the respondent was to have access with C.G. the next day.

[31] Given the respondent’s history of alcoholism and anger management issues, his sporadic access in the past, his threatening behaviour, the fact he has lived in another country for three years and the issues leading to the restraining order, supervised access as suggested by the applicant, is a reasonable solution.

[32] The applicant is confident that so long as supervised access occurs, the restraining order as it relates to C.G. should be rescinded. The applicant remains close with the respondent’s sister, Clare Gibbons, her husband Derek Moody and the respondent’s brother, Richard Gibbons. Richard Gibbons has agreed to facilitate arranging access dates and Clare Gibbons and her husband have agreed to supervise the visits. The applicant seeks to have the restrictions in the restraining order which pertain to her to continue until June 30, 2019. She is, not surprisingly, concerned about a further negative and angry reaction from the respondent when he receives this judgment.

[33] The respondent has not been an overly involved parent. At his questioning on February 14, 2017 he was unable to answer basic questions about C.G.’s likes and dislikes, teachers, doctors or dentist.

[34] In the past the respondent has failed to abide by C.G.’s routines, permitted excessive sugar intake and screen time, overindulged C.G. with gifts and toys, cancelled access, showed up late, did not show up at all, or arrived without a proper car seat for C.G.

[35] At times the respondent makes himself unavailable. His voice mail is often full, he will not provide his current home address, he has, in the past, deactivated his email address and shut off his phone for weeks at a time. The applicant is never sure she would be able to reach the respondent in the event of an emergency.

[36] The respondent has also made certain financial decisions which directly impacted C.G. such as failing to pay household expenses as ordered, cutting off the applicant’s credit cards, ceasing payment for C.G.’s horseback riding lessons, school tuition, uniforms and summer camps.

[37] The applicant has made significant parenting efforts in the face of the respondent’s actions. She has, for example, maintained a good relationship with the respondent’s family, accommodated the respondent’s last minute access requests and cancellations, regularly encouraged C.G. to call the respondent and Face Time with him, and engaged the respondent’s brother and sister-in-law who live in Toronto in order to propose a reasonable supervised access plan to the court. During questioning and in emails provided to the court, the respondent has praised the applicant’s parenting efforts.

[38] There is no question that the applicant has been the primary caregiver and decision maker for C.G. I find she has done her best to facilitate access and a relationship between C.G. and the respondent despite his anger management issues and alcoholism. It is in C.G.’s best interests that the applicant continue to fulfill the role as primary custodial parent with all of the associated decision making.

Support and Section 7 Expenses

What is the Respondent’s Income for Support Purposes?

[39] The respondent has failed to provide proper or adequate disclosure of his financial circumstances. After several years of pursuing the respondent for disclosure he was clearly not prepared to give, he inadvertently forwarded the applicant a work related email on March 7, 2017. In that email the signature line identifies the respondent as the “Managing Partner” for Caravel Capital Investments Inc.” Only after this email came to light did the respondent concede that he was living and working in Bahamas but that the identification of him as managing partner was a typo, and that he was not earning any income from Caravel; he was working there for “free.”

[40] After this discovery, the court ordered the engagement of a jointly retained valuator to determine the respondent’s income. The report was released on May 12, 2017. The valuator, Mr. Jeffrey Cling, indicated that the report was missing nine key documents which had been requested from the respondent but not produced. The valuator calculated the respondent’s income as either $228,000 or $368,000 for 2016. This does not include any possible compensation from Caravel or other sources of income which the applicant alleges he had.

[41] Despite the respondent’s position about his lack of income from Caravel, he is listed as a member of its Board of Directors. As well, commentaries published about the fund’s performance indicated that the fund had appreciated by 15% as of September 2017. At that time, the value of the fund was $17,304,000 (assuming a 15.35% appreciation of the original $15 million in capital). In a commentary to investors dated December 2017, the value of the fund was at $30,000,000 with the respondent’s holding worth about $4,500,000.

[42] There is also the respondent’s lifestyle to consider. While claiming that he works for Caravel for “free”, the applicant provided recent Instagram posts showing the respondent vacationing in the Greek and Spanish islands, traveling by private jet and eating in the most expensive restaurants in the Bahamas. In the last four months, the respondent traveled in private planes and helicopters to eight different destinations.

[43] Visa statements disclosed by the respondent from 2016 show charges for expensive restaurants in both Toronto and the Bahamas.

[44] The respondent has a B.A. in economics and over 15 years of experience in the financial industry. When the applicant met him he was in his 20s and already retired after earning millions from his private hedge fund ventures.

[45] During the marriage the parties also lived a lavish lifestyle including exotic travel, driving expensive cars and dining in exclusive restaurants.

[46] A result of a private offering memorandum in September 2018 it appears that respondent will now be receiving a 20% performance fee from Caravel. While the applicant suggests that the respondent’s income is likely much higher than $500,000 per annum based on his performance fee entitlement, she is prepared to accept child and spousal support based on this amount given the lack of definitive disclosure available.

[47] In any event, the respondent has been paying $10,000 per month in uncharacterized support since November 1, 2015. The amounts sought by the applicant of $3,819 in child support and $6,181 in spousal support are similar to what the respondent has been paying. The respondent has had no difficulty paying $10,000 of support in the past.

Arrears of Support

[48] The applicant seeks arrears of support for the period of May to October 2015. During this time, the respondent failed to pay any household expenses as ordered, or support. She seeks the sum of $10,000 per month or $60,000 for this period. This amount is reasonable in all of the circumstances given the respondent’s failure to pay court ordered household expenses.

Spousal Support

[49] The respondent has been paying household expenses and/or support (inclusive of spousal support) for a period of a period of almost six years in relation to a three year marriage.

[50] The applicant has had to resign from her job with the Catholic Children’s Aid Society. After a year of maternity leave and two years of unpaid leave, she had lost the seniority she had gained over many years. She tried going back to a junior position for about a year but found that the lack of predictability combined with the stress of the court proceedings impacted on her care of C.G. As such, she resigned her position as of December 31, 2018.

[51] The applicant is now taking courses at the University of Toronto in marketing and management. She intends to start working for her parent’s kitchen and bathroom renovation business. She is already starting to do some part time work for them.

[52] The applicant is well aware that her claim for spousal support cannot continue indefinitely given that she is young, healthy and well educated. For now, however, I find that she still has need for support given her full time responsibility for C.G., the impact of these proceedings, and the time needed to re-educate and re-enter the workforce. I leave the payment of spousal as indefinite with the possibility of review where there is a material change in circumstances which would include but not be limited to the applicant’s remarriage or full time employment.

Section 7 Expenses

[53] The parties agreed during the marriage that C.G. would attend the Toronto French School (“TFS”). Not long after separation, the respondent ceased paying the tuition fees and accompanying activity related fees.

[54] It is conceded that the respondent paid two tuition payments in 2018. He has been given credit for those payments in the within calculations.

[55] C.G. is an active child. She loves her horseback riding and other activities. She has traditionally attended a summer camp. During the marriage and after, the respondent paid for some or all of these activities. While the respondent does not object to these activities, his contribution towards them has been sporadic.

[56] The applicant seeks a contribution of 70% from the respondent for retroactive (back to May 2, 2016) and ongoing tuition, violin lessons, swimming, horseback riding, gymnastics and summer camp. The total of the respondent’s share would be $99,280.25 as per Exhibit 3b) to the applicant’s affidavit sworn January 2, 2019. Any difference in this number and the amount in Exhibit 3b) relates to the applicant having omitted the credit owed to the respondent for TFS tuition paid in 2018.

Property Issues

The Matrimonial Home

[57] The applicant seeks a constructive trust interest in 50% of the sale proceeds of the home. The home has sold and the sum of $466,110.04 remains to the credit of the parties as held by the Accountant of the Superior Court of Justice.

[58] The matrimonial home was purchased within weeks of the date of marriage. The home was placed in the respondent’s name with his promise that it would be put into joint names. It never was.

[59] The applicant was pregnant with C.G. at the time the parties’ purchased the home. She was either on maternity leave or unpaid leave the entire time that the parties lived in the home. She contributed all of her maternity leave income to household expenses.

[60] When the parties moved in, the applicant’s parents gifted a bathroom and kitchen renovation (including all fixtures) to the parties.

[61] After repeated promises to put the home in joint names, the applicant’s parents made an appointment for the respondent to attend their lawyer’s office to sign the required documents. The respondent never showed for the appointment.

[62] The applicant’s mother, Shamsi Mahjour, gave evidence that the respondent repeated to her many times that he intended to place the home in joint names. However, he always claimed he was busy, or travelling to Bahamas, or had other excuses as to why he could not sign the documents.

[63] The applicant also relied on Exhibit 2P to her affidavit which is an email from the respondent to his mortgage company asking that the applicant’s name be added to the mortgage file and that she should be the first point of contact as he is often unavailable due to work. In several emails to the applicant, the respondent refers to the equity in the home as “our” equity.

[64] The applicant wanted to stay in the matrimonial home after separation for C.G.’s sake. C.G. loved the neighbourhood and her friends. The applicant conceded in her evidence that she now realizes this was likely unrealistic given the cost of maintaining the home but it was an emotional time and her parents were willing to help her.

[65] The respondent stopped paying the mortgage in May 2015. The mortgage went into default. Default legal proceedings were commenced. The respondent did not defend the claim. The applicant defended the claim and paid her lawyers for this service.

[66] The respondent also stopped paying the taxes and insurance on the home. The basement pipes froze, there was significant water damage and the applicant was left having to borrow $40,000 from her parents to make the repairs given that the house insurance was in default.

[67] During the time when the applicant sought to buy out the respondent’s interest in the home both parties obtained appraisals. The applicant’s appraisal came in at $2.5 million and the respondent’s at $2.8 million. The applicant offered to buy the home from the respondent privately for $2.65 million. He refused the offer. A letter from the applicant’s realtor at Exhibit 3C) to her affidavit outlines her offer to the respondent of $2.65 million, his refusal, and the subsequent sale of the house for $2.5 million. The realtor, Mr. Atrie, outlines the many problems he had reaching the respondent at the relevant time, indicating that he was uncooperative and would not respond promptly to calls or emails and often not respond at all at critical times.

[68] The applicant and respondent paid sales commission of $141,000 which would have been entirely avoided on a private sale. Further the property tax arrears on sale were $11,132.72, the legal fees on the Power of Sale were $17,260.84 and the property management fees related to the Power of Sale were $1,310.80. The applicant seeks re-imbursement for her share of these expenses which she submits were unnecessary and entirely avoidable.

[69] The applicant has provided no case law as to why she should receive a constructive trust interest in the matrimonial home. She made no significant financial contribution to the home, other than the gifted renovations. There was no evidence as to how much, or if, those renovations contributed to the value of the home.

[70] While there is some evidence of an intention to place the home in joint names, no action was taken by the respondent to do so. Rather, the evidence appears to support the respondent’s intentional avoidance of taking any action in that regard.

[71] The better approach would be in relation to the applicant’s claim for an equalization of net family property. Based on the materials before me, the only asset of the marriage which remains is the $466,110.04 which remains in trust.

[72] Given that the respondent did not have the right to file any material in this matter, I have no evidence that the respondent had any date of marriage deductions or any debts on date of separation (other than the mortgage which has now been paid out). As such, he would owe the applicant an equalization payment of 50% of the total amount remaining in trust. The respondent shall therefore pay the applicant an equalization payment of $233,055.02.

Costs

[73] The applicant seeks significant legal costs of $162,944.82. This includes costs for her former legal representation, her share of costs for the valuator, and her costs for the time involved in representing herself.

[74] The grounds for seeking these significant costs are as follows: a. The respondent attempted to list the matrimonial home for sale the first weekend after separation when the applicant left the home to visit her parents in Florida. The applicant was forced to hire counsel. b. After she returned from Florida, the applicant installed a lock on her closet. The respondent broke the lock and took C.G.’s and the applicant’s passport as well as all of the applicant’s expensive jewellery, clothing, handbags. c. Within days of separation the respondent cut off the applicant’s credit cards and depleted her bank accounts. Shortly thereafter, the respondent ceased paying monthly household expenses including mortgage, hydro, taxes, car payments, house insurance and cable, all while the applicant and C.G. were still living in the home. d. The respondent wants C.G. to attend TFS but only occasionally pays for the tuition. e. As a result of the respondent’s deliberate and cruel actions the applicant has incurred over $400,000 in credit card debt, and loans and promissory notes owed to her parents in order to cover household expenses, legal fees and C.G’s tuition and s.7 expenses. f. The respondent has been recalcitrant concerning financial issues, threatening to “disappear” into the Bahamas leaving the applicant penniless, missing support payments, providing inaccurate or late financial disclosure and failing to abide by court orders.

Legal Fees

[75] The applicant has incurred $94,194.82 in legal expenses with Niman, Gelgoot. The applicant submits that much of these costs were incurred as a result of the unreasonable behaviour of the respondent including having to bring motions because the respondent unreasonably withheld his consent for the applicant to travel with C.G., the respondent needlessly and endlessly emailing the applicant’s counsel, and the repeated requests for disclosure, missed household payments and support.

[76] This is not a legally complex case and the issues of support, custody, access and property could easily have been resolved without the necessity of litigation, had the respondent acted reasonably and provided timely disclosure.

[77] I find that many of his actions can be described as nothing less than bad faith, including failing to accept the applicant’s reasonable private offer to buy the matrimonial home, failing to pay household expenses when ordered, threatening the applicant and her family with both bodily harm and abandoning his financial responsibilities, failing to pay the mortgage and allowing default to occur thereby necessitating legal fees for the cost of the applicant’s defence of the Power of Sale litigation, and incurring unnecessary legal costs by bringing untenable motions.

[78] I see no reason why the applicant should not have full recovery of all of her legal costs. Those costs have been comprehensively set out in her material by way of all of the invoices from Niman, Gelgoot.

Re-Apportionment of the Valuator’s Fees

[79] The order of Wilson, J. described above, addresses a possible re-apportionment of the valuator’s fees.

[80] The sum of $32,000 was released from the funds held by the Accountant of the Superior Court in order to pay the jointly owned valuator. The respondent did not cooperate with the valuator, nor did he cooperate with the applicant with respect to having the funds paid out from the Accountant’s Office.

[81] The income report is virtually useless as the valuator explains that he is missing nine key documents required to provide a proper analysis of the respondent’s income. The respondent either failed or refused to provide those documents.

[82] The respondent also failed to cooperate in signing the appropriate documents to have the funds released from the Accountant’s Office in order to pay the valuator. The applicant was forced bring a motion in order to have the funds released without the respondent’s consent.

[83] I find that the respondent has not cooperated with the valuation. Re-apportionment should occur such that the respondent is responsible for the full cost of the valuation. As such, the applicant is owed $16,000 for her share of Mr. Cling’s fees from the respondent’s share of sale proceeds.

Costs for Self-Representation

[84] The applicant seeks costs for the time spent for the following: a. Attending court to file her case with FRO. b. Preparing motion material and attending court to file the material to pay out the funds for the valuator without the respondent’s consent (due to the respondent’s lack of cooperation). c. Preparing motion material and attending court re the August 2018 restraining order. d. Preparing material and attending court on September 20, 2018 (the respondent did not appear although the court found he was properly served). e. Preparing material and attending court for the Trial Management Conference on November 16, 2018 (the respondent did not appear or file material).

[85] The applicant seeks to be reimbursed for her time for the abovementioned items at the rate of $75.00 per hour for five hours of work for a total of $375.

[86] The applicant also seeks reimbursement for the preparation of the material for the uncontested trial. She spent 15 days on this material working an average of 8 hours a day. She seeks a total of $9,000 being 120 hours at the rate of $75 per hour.

[87] The applicant relies on the case of Roach v. Lashley, 2018 ONSC 2086. In that costs endorsement the court found that the self-represented applicant had worked very hard and provided good court material for a difficult and complex case. Even where the court was not able to rely on the material provided, the court commended the applicant’s efforts. The court awarded the applicant costs for trial preparation of $2,625 based on an hourly rate of $75.

[88] The court also relied on Blustein v. Kronby, 2010 ONSC 1718 in which the court described a “now-accepted” rate of $60 per hour for self-represented litigants and also relied on Rule 24(11) with respect to the complexity and difficult of the case.

[89] There were significant substantive issues to be tried in this case including custody, supervised access, child and spousal support, arrears of support and s.7 expenses, a claimed constructive trust interest in the matrimonial home, a restraining order and costs issues.

[90] I found that the applicant’s material was thorough and comprehensive. Although I did not award the constructive trust claim, I found the material sufficient to award an equalization payment.

[91] I see no reason why the applicant should not be awarded her costs in the amounts claimed. As indicated earlier, none of this work would have been necessary had the respondent been reasonable or cooperative.

Costs for the Loss of Value in the Matrimonial Home

[92] The applicant seeks further costs of $50,000 for the loss in the sale price of the matrimonial home. Her argument is that had the respondent accepted her offer, the parties would have avoided real estate commission of $141,500. There were also property tax arrears ($11,132.72), legal fees related to the Power of Sale litigation ($17,260.84) and property management fees related to the Power of Sale litigation ($1,310.80).

[93] The applicant seeks a form of damages essentially based on the respondent’s vindictive and uncooperative behaviour which lead to the abovementioned costs being incurred according to the applicant.

[94] The applicant did not provide any case law to support her position with respect to these costs/damages. However, I am prepared to award the applicant her share of the fees and charges related to the Power of Sale, which were entirely avoidable had the respondent paid the mortgage as required. Therefore, the applicant shall receive an additional $9,285.82 from the respondent’s share of sale proceeds.

[95] I decline to award reimbursement of the any share of the property taxes as the applicant is receiving a retroactive support award of $60,000 which represents the period in which the respondent was in default of his obligations.

Final Orders

[96] Based on all of the above I make the following final orders:

1. An Order for sole custody of the child of marriage, C.G., born October 30, 2010 to the applicant.

2. An Order that the respondent’s visitation to C.G. be supervised on the following terms: i) The respondent’s sister, Clare Gibbons and/or brother-in-law, Derek Moody will be present at all times during visits; ii) There will be no consumption of alcohol right before or during any visits; iii) The respondent will retain a child therapist to assist him with addressing the child’s needs during reunification and provide proof of same to the applicant. iv) The respondent will communicate with his brother (Richard Gibbons) or sister (Clare Gibbons) to request dates for possible visits, and either Richard or Clare will forward those requests to the applicant. All parties will respond within 5 days or less, confirming if the dates work. v) A review of this arrangement will take place in six months from the date of this judgment; vi) A written agreement reflecting the terms of supervised access shall be signed by the applicant, the respondent, Richard, Clare, and Derek; vii) If the respondent breaches any of the above terms, the applicant may bring a motion on notice to terminate supervised access.

3. An Order for child support for the child of the marriage, C.G., born October 30, 2010 based on an imputed income to the Respondent of $500,000.00 per annum, in the amount of $3,819.00 per month, commencing February 1st, 2019 and payable to the Applicant on the first of every month thereafter;

4. An Order that the Respondent pay 70% of C.G.’s ongoing special and extraordinary expenses, and more specifically her tuition at the Toronto French School, the school’s insurance premium, horseback riding lessons, hot lunches, uniform and supplies, tutoring, academic testing, summer camps, violin lessons, gymnastics, and medical/dental, including orthodontic work.

5. An order that the respondent pay retroactive s.7 expenses in the amount of $99,280.25 from the respondent’s share of house sale proceeds.

6. An Order for spousal support in the amount of $6,181.00, commencing February 1, 2019 and payable on the first of every month thereafter, subject to a material change in circumstances which would include the applicant’s re-marriage or earning a full time income;

7. An Order that spousal support be indexed annually in accordance with the cost of living;

8. An Order that the Respondent pay retroactive undifferentiated support from May to October 2015, in the amount of $10,000.00 per month for a total of $60,000.00, from his share of the funds held in trust;

9. An Order requiring the Respondent to obtain and maintain a life insurance policy on his life in sufficient amount to meet his child and spousal support obligations and to name the Applicant as irrevocable beneficiary of $1 million of the insurance proceeds and provide proof of same upon her request;

10. An Order dispensing with the requirement that the Respondent sign a travel consent when the applicant travels with C.G.

11. An order permitting the applicant to renew C.G.’s passport without the consent of the respondent.

12. The restraining order issued August 16, 2018 shall continue with respect to the applicant until June 30, 2019 at which time it shall terminate. The terms of the restraining order as they relate to the child, C.G., shall terminate as of the date of this judgment.

13. An order requiring the respondent to pay the applicant an equalization payment of $233,055.02 from the house sale proceeds. The applicant’s claim for a constructive trust interest in the house sale proceeds is dismissed.

14. An Order granting the Applicant a divorce;

15. An Order for prejudgment and post judgment interest in accordance with the Courts of Justice Act;

16. An Order for costs payable by the respondent to the applicant from his share of sale proceeds in the amount of $128,855.64.

[97] The total amount payable to the applicant by the respondent in accordance with this judgment is as follows: Arrears of s.7 expenses $ 99,280.25 Arrears of support 60,000.00 Equalization 233,055.02 Costs 128,855.64 Total $521,190.91

[98] The total held in trust by the Account of Superior Court of Justice in the amount of $466, 110.04 shall be immediately released to the applicant.

[99] The respondent shall receive a credit of $233,055.22 towards the outstanding amounts owing to the applicant based on the amounts paid out from his share of the sale proceeds. The respondent shall owe the applicant a further $288,135.69 in accordance with the terms of this judgment.

[100] Of the total owed to the applicant by the respondent ($288,135.69), the sum of $175,000 shall be enforceable by FRO as retroactive child and spousal support, s.7 expenses and costs related to the enforcement of same.

[101] The respondent is not permitted to bring any Motion to Change unless he has fully complied with the terms of this order including the payment of all amounts owing.

[102] The respondent’s approval as to form and content is not required to enter and issue this order.

C. Gilmore, J. Released: January 8, 2019

COURT FILE NO.: FS-15-15403305 DATE: 20190108 ONTARIO SUPERIOR COURT OF JUSTICE

Between: Lisa Rezai, Applicant – and – Glen Gibbons, Respondent

Reasons for Judgment

C. Gilmore, J. Released: January 8, 2019