COURT FILE NO.: FS-14-392358 DATE: 20190528 ONTARIO
BETWEEN:
Angela Fytikas Applicant – and – George Fytikas Respondent
Counsel: Lawrence B. Geffen, for the Applicant No one appearing
HEARD: April 25, 2019
Reasons for Decision
NAKONECHNY, J.
1This Application was issued on January 29, 2014. The Respondent’s pleadings were struck by Order of Kristjanson J., dated December 13, 2018, due to the Respondent’s refusal to produce required financial disclosure and failure to comply with Orders made September 14, 2014; June 13, 2018; July 12, 2018; August 28, 2018; September 17, 2018; and October 4, 2018.
2The Respondent appealed the Order of Kristjanson J., but failed to perfect the appeal in the time required by the Family Law Rules, O. Reg. 114/99.
3Stevenson J. scheduled the date for this uncontested trial by Endorsement dated April 2, 2019. This Endorsement was served on the Respondent. The matter proceeded as an uncontested trial on April 25, 2019.
4The Applicant seeks the following Orders:
a. That the matrimonial home, known municipally as 3420 Eglinton Ave. E., Suite 208, Scarborough, Ontario, (“the matrimonial home”) shall be vested in the Applicant’s name absolutely pursuant to section 9 (1) (d)(i) of the Family Law Act, R.S.O. 1990, c. F.3; b. That the matrimonial home is released from the application of Part II of the Family Law Act; c. That the Applicant shall have exclusive possession of the matrimonial home and contents; d. That, pursuant to the Child Support Guidelines, the Respondent shall pay to the Applicant child support for the children, E. born March 14, 1997 and I. born October 30, 1998, for the period from August 1, 2013 through April 30, 2019, based on the Respondent’s income being imputed at $115,000 per year, in the total amount of $95,371. The Respondent shall receive credit for child support paid pursuant to the Order of Perkins J. in the amount of $306 per month from October 2014 to January 1, 2019; e. That the Respondent shall pay section 7 expenses for the two children pursuant to the Child Support Guidelines based on the Respondent’s income being imputed at $115,000 and the Applicant’s income being $52,771 for the period from August 1, 2013 to April 30, 2019, in the total amount of $65,122.20; f. That the Respondent shall pay child support for the two children in the amount of $1,655 per month commencing May 1, 2019 based on the Respondent’s income being imputed at $115,000 per year; g. That Respondent shall pay spousal support to the Applicant in the amount of $1,068 per month commencing August 1, 2013 through to December 31, 2018, and thereafter in the amount of $1,099 per month commencing May 1, 2019 on an indefinite basis; h. That the Respondent shall pay to the Applicant future section 7 expenses for the two children commencing May 1, 2019 based on the Respondent’s income being imputed at $115,000 and the Applicant’s current income of $52,771, so that the Respondent is responsible for 68.5% of section 7 expenses, which shall include but not be limited to postsecondary education costs; i. That the Respondent shall designate the Applicant as the irrevocable beneficiary of one or more life insurance policies including but not limited to policies that the Respondent has with Canada Life and/or London Life with a total face value of at least $250,000, and shall maintain said policy until such time as child or spousal support is no longer payable. The Respondent shall keep the policy in full force and effect and provide proof to the Applicant; j. That the Respondent is restrained from depleting, dissipating, selling, transferring, withdrawing, or in any other way dealing with any and all accounts or investments in the name of the Respondent or in the name of the Respondent and any other person jointly, which investments shall include but shall not be limited to the following: i. TD Waterhouse self-directed RSP account number 056281-S; ii. TD Waterhouse direct trading – US account number 213266; iii. ING Direct account number 179095-3102578643 (client number 28852231); iv. Standard Life account number RS100300-AESLX; v. SunLife Financial account number 01749105945947; vi. National Bank Securities Inc (Meritage Portfolio) account number 10040848; vii. TD Canada Trust account number unknown; and viii. Manulife – account number unknown, (possibly a transfer from the above named Standard Life account). k. That the Respondent shall provide all necessary documents to the Romanian consulate located at 789 Don Mills Rd., unit 501, Toronto to enable the children to obtain their Romanian birth certificates and the Respondent shall attend at the Romanian consulate at a date and time arranged by the consulate with the Applicant and the children to provide this documentation to the consulate and sign any necessary documentation, the documentation to be provided and to be signed to include but not be limited to the following: i. Original valid unexpired US passport; ii. Original valid unexpired Canadian passport; iii. Original valid unexpired Ontario Driver’s Licence; iv. Original valid unexpired Canadian Citizenship Card; v. Original valid unexpired Birth Certificate; and vi. Signed Declaration (to be signed at the Consulate). l. In the event that the Respondent does not have the above documents, that he be required to immediately apply for and obtain the said documents; m. In the event that the Respondent does not comply with the paragraphs above by June 30, 2019 that the children shall be able to obtain their Romanian birth certificates without any information/documentation or signatures from the Respondent; n. A divorce; and, o. Costs on a substantial indemnity basis to be enforced by the Family Responsibility Office as support.
Background
5The parties were married on July 13, 1991. They separated on October 20, 2012 and began living separate and apart in the same home. On July 28, 2013, the Respondent moved from the matrimonial home. The Applicant has used this date as the date of separation for calculating equalization.
6The parties have two children, E. born March 14, 1997 and I. born October 30, 1998. Currently, E. is in her fourth year at McMaster University studying Life Sciences and I. is in her third year at Ryerson University studying Humanities.
7The Respondent purchased the matrimonial home in his name alone just prior to the marriage for the parties to reside in after their marriage. Both parties contributed their employment income to a joint account which was used to pay the mortgage, utilities and other carrying costs of the home. The Respondent was employed by Sun Microsystems and the Applicant was employed in industrial design.
8The Applicant left her full-time employment when the eldest daughter, E. was born. She remained out of the workforce until 2009 when she obtained a part-time position with the Toronto District School Board (the “TDSB”). She became employed full-time with the TDSB in 2010.
9In 2004, the Respondent was laid off from his employment with Sun Microsystems. He began to operate his own IT business, Data Centre Works Inc. (“Data Centre”). The Applicant did some administrative work for Data Centre.
10After E. was born, the Applicant was a full-time homemaker and primary caregiver to the children. She did all of the household work including cleaning, cooking, laundry, car care and grocery shopping. She took the children to the doctor, dentist, and all of their activities. She was also the primary contact for the children’s schools.
11In 2012, the marriage was beginning to break down and the parties were arguing more frequently. In October 2012, the Applicant expressed to the Respondent that she wanted to end the relationship. The parties stopped sleeping in the same bed and began living separate and apart in the home.
12In July 2013, the Respondent became physically abusive toward the Applicant. At that time, he moved from the home.
13Since July 2013, the Applicant has solely paid all of the carrying costs of the home, including property taxes, maintenance and utilities. In January 2017, there was a flood in the home which caused major damage. The Applicant received insurance coverage of about $13,000. This paid only the cost of replacing the carpet. The Applicant also painted the home, upgraded the flooring and electrical outlets, replaced appliances and did other renovation work. The Applicant paid all of the costs of these repairs and renovations.
14On September 15, 2014, the parties consented to an Order of Perkins J. that the Respondent pay temporary without prejudice child support of $306 per month for E. and I. based on an imputed income of $20,000 per year in accordance with the Child Support Guidelines. The Respondent had not filed any income or financial disclosure at that hearing.
15Perkins J. also ordered that the Respondent disclose his bank account, RRSP and credit card statements, year-end financial statements for Data Centre from 2007 to 2012 and provide an updated Form 13.1 financial statement with backup documentation.
16The Respondent paid monthly child support pursuant to Perkins J.’s Order until January 1, 2019. The Respondent did not produce all of the financial disclosure required by Perkins J.’s Order or other disclosure orders made in the proceeding.
Child Support and Section 7 Expenses
17The Applicant asks that I impute income to the Respondent in the amount of $115,000 to calculate child and spousal support. Section 19 of the Child Support Guidelines permits me to impute an amount of income to the support payor if I consider it appropriate in the circumstances.
18The Respondent has a Bachelor of Science in Mathematics and Computer Science as well as IT qualifications from a number of technical courses. His resume prepared in about 2012 sets out his extensive experience over twenty five years in the industry as a consultant, programmer, system engineer, and developer.
19The Applicant relies on disclosure produced by the Respondent that shows he was a 30% shareholder of Data Centre and the financial statements of the company, which show the company’s assets, liabilities and shareholder’s equity. The Respondent did not produce any personal income tax returns so his actual income received from the company is not known.
20In 2007, Data Centre had gross revenue of $643,981. Revenues of the company reduced over the years. In 2010, its gross revenues were $214,891. This may be why the Respondent sought other employment in 2012.
21The Applicant produced a 2012 T4 for the Respondent for his three month period of employment with Bluecat Networks Inc. showing income in the amount of $27,386. The Respondent was laid off from this position before the end of his probation period. This extrapolates to an annual income of about $109,544.
22The Respondent was given repeated opportunities to file evidence confirming his income for support purposes and chose not to. The Applicant, as recipient parent, should not have to bear more than her proportionate share of support for the children simply because the payor did not produce all of the information required to make a final determination of his income: Wharry v. Wharry, 2016 ONCA 930, 89 R.F.L. (7th) 61.
23The Respondent had an obligation to pay support for the children from the date of separation and for so long as they are children of the marriage as defined under the Divorce Act, R.S.C. 1985 c.3 (2nd. Supp.). There is no evidence that he did not have the ability to pay child support and contribute proportionately to the children’s section 7 expenses for the period retroactive to that date. This Application was issued only six months after the date of separation. I find that, considering the factors set out in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, it is reasonable for the Respondent to pay child support from the date of separation.
24Based on his training, work experience and the 2012 T4 (which is the best evidence I have of his income), I find the Respondent had the ability to earn income in at least the amount he was earning in 2012 from the date of separation to date. I find it is reasonable and appropriate to impute income of $109,544 to the Respondent to calculate his ability to pay child and spousal support.
25Based on this imputed income, the Respondent should have paid child support in the amount of $1,533 per month for the two children for 52 months from the date of separation, August 1, 2013, to November 1, 2017 under the prior Child Support Guideline calculations, for a total of $79,716, and in the amount of $1,588 per month for 18 months from December 1, 2017 to May 1, 2019, for a total of $28,584, for a final total of $108,300 of child support owing.
26The Respondent must be credited for the child support he paid in the amount of $306 per month for 52 months between October 1, 2014 and January 1, 2019, which totals $15,912. This results in a balance of child support owing of $92,388.
27Commencing May 1, 2019, the Respondent shall pay child support for two children in the amount of $1,588 per month based on an imputed income of $109,544 for so long as they remain children of the marriage as defined in the Divorce Act.
28The Applicant states that she has paid section 7 expenses for the two children since the date of separation in the total amount of $95,069. These amounts include expenses for the children’s medical, dental, extra-curricular activities, secondary school and post-secondary education costs.
29I have reviewed the evidence provided by the Applicant for these expenses. I accept the Applicant’s figures for the amounts paid by her for the children’s post-secondary education expenses of $11,960 and for the children’s medical and dental costs not covered by her insurance plan in the amount of $6,557.
30I do not accept the amount of other section 7 expenses claimed in the amount of $76,552. Upon review, many of these expenses, such as clothing, entertainment, vacations, make up, and presents, do not meet the test of extraordinary expenses set out in the Child Support Guidelines as they are amounts that the Applicant would have been expected to reasonably cover had she been receiving the appropriate amount of table child support. I have now ordered the Respondent to pay this support. I cannot also order him to contribute to expenses which I do not find to meet the definition under section 7 of the Guidelines.
31Having reviewed the evidence, I find that $50,008 of expenses claimed by the Applicant qualify as section 7 expenses. The Respondent should have contributed his proportionate share of these section 7 expenses.
32The parties must contribute their proportionate share of the total amount of the children’s section 7 expenses, $11,960+$6,557+$50,008 = $68,525, in proportion to their respective incomes. Based on the Respondent’s imputed income of $109,544 and the Applicant’s 2018 T4 income of $52,771, and including spousal support in the mid-range which I have calculated below, the Respondent’s proportionate share of the children’s s. 7 expenses owing to the Applicant is 60.3% or $41,320.
33Commencing May 1, 2019, the Respondent shall pay his proportionate share of 60.3% of the two children’s section 7 expenses based on his income of $109,544 and the Respondent’s income of $52,771 plus spousal support as determined below, including all post-secondary education expenses for so long as they are children of the marriage as defined in the Divorce Act.
Spousal Support
34The Applicant states she is entitled to spousal support, both needs-based and compensatory, based on her role as a caregiver and homemaker throughout their marriage and her support of the Respondent’s career, which impeded her own ability to earn income. She seeks spousal support retroactive to the date of separation and ongoing.
35The objectives of a spousal support order under s. 15.2(6) of the Divorce Act are as follows:
a) recognize any economic advantages and disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve any economic hardships of the spouses arising from the breakdown of the marriage; and d) in so far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
36I find the Applicant is entitled to spousal support, both needs-based and compensatory, to re-dress the economic disadvantages and the financial hardship she suffered arising from her time out of the workforce and the traditional caregiving and homemaking role she played in the marriage. I make this finding for these reasons: the Applicant left the workforce when the children were born to become a full time homemaker and caregiver to the children. She cared for the children while the Respondent furthered his employment experience and income earning ability. She assisted the Respondent in his business venture both by caring for the home and children and providing administrative assistance to Data Centre. The Applicant’s time spent caring for the home and family limited her ability to work full time.
37The Applicant commenced this Application in January 2014. I find that the Applicant is entitled to spousal support from the commencement of the Application. The Applicant has produced Divorcemate calculations setting out the after tax benefit to the Applicant for spousal support paid by the Respondent at the mid range of the Spousal Support Advisory Guidelines (the “SSAG”) for 2014 to 2018, imputing income of $115,000 to the Respondent and using the Applicant’s income in each year. The calculations take into account the child support for two children in the amount of $1,599 per month for the years 2014 to 2016 and $1,655 per month for the years 2017 and 2018.
38I have recalculated the net annual spousal support amounts using $109,544, the income I have imputed to the Respondent. These net amounts are as follows: 2014 - $6,036; 2015 - $4,968; 2016 - $9,396; 2017 - $9,588; 2018 - $9,204. The total after tax spousal support owing to December 31, 2018 is $39,192. The Respondent shall pay this amount to the Applicant.
39Commencing January 1, 2019, the Respondent shall pay spousal support to the Applicant in the amount of $992 per month, based on the mid range of the SSAG for his income of $109,544 and the Applicant’s income of $52,771. The support shall be payable for an indefinite duration, subject to material change.
Life Insurance
40The Respondent’s Financial Statement sworn June 26, 2017 lists a policy of life insurance with Canada Life/London Life in the face amount of $250,000 with the children named as beneficiaries.
41The Respondent stopped paying child support in January 2019, in breach of the Order of Perkins J. The Applicant requires security for the ongoing support for her and the children in the event of the Respondent’s death. Pursuant to s. 34 (i) of the Family Law Act, I order that the Respondent maintain this policy as security for future child and spousal support.
Equalization and Property Issues
42The Respondent is the sole owner of the matrimonial home. The Applicant’s evidence is that the value of the home on the date of separation was $150,000. The value of the home is currently $320,000 based on the appraisal of Gordon Sommerville of Home Value Appraisal Inc. produced by the Applicant in her evidence.
43The Applicant testified that the Respondent received the items and contents he wanted from the home in 2014 and 2015. Initially, he attended at the home with the police after the assault to remove his personal items. Subsequently his sister, and then the Applicant and the children brought him additional items he requested. There are no outstanding contents issues.
44The Applicant has filed a Net Family Property Statement, sworn Financial Statements and updating Affidavits sworn April 16 and April 23, 2019 containing information regarding the values of the assets and liabilities in the parties’ respective net family properties. The Applicant’s evidence calculates an equalization payment owing from the Respondent to the Applicant in the amount of $171,607. This calculation lists the home in the Respondent’s name alone. I have reviewed the evidence of the Applicant regarding the figures in the Net Family Property Statement, including the Respondent’s Financial Statement sworn June 26, 2017 filed in this proceeding. I accept the evidence and find the Respondent owes the Applicant an equalization payment of $171,607.
45The Applicant paid all of the carrying costs of the home including maintenance fees, property taxes, insurance and repairs since the date of separation. The Applicant does not seek credit for the cost of maintenance fees, utilities and insurance she paid while she was residing in the home. She also does not include the cost of repairs required after the flood that were paid for by insurance coverage.
46I accept the Applicant’s documentary evidence for the amounts she has paid toward the costs of the home including repairs. As an owner, the Respondent was responsible for paying the cost of property taxes and repairs to the home. These payments maintained the home and contributed to its increase in value over the years. These payments were made solely by the Applicant for the benefit of the Respondent. These payments total $42,560 for repairs and renovations and $6,746 for property taxes. The total amount paid by the Applicant to the benefit of the Respondent is $49,306.
47The Applicant wishes to retain the home and purchase the Respondent’s interest. She proposes to credit the amounts owing to her by the Respondent for child support, section 7 expenses, spousal support, equalization and carrying costs/repairs to set off the purchase amount.
48The Applicant seeks a 50% ownership interest in the home by way of constructive trust. She argues that her monetary and other contributions to the home both during the marriage and since separation were an unjust enrichment to the Applicant, that she suffered a corresponding deprivation and that there was no juristic reason for the benefit: Peter v. Beblow, [1993] 1 S.C.R. 980. She argues that if she was held to be a 50% owner she would only have to pay the Respondent 50% of the current value of the home to purchase his interest, less adjustments in the credits claimed for equalization and carrying costs and repairs.
49The value of the home more than doubled since the date of separation. Part of this increase can be attributed to the passage of time and the vagaries of the Toronto real estate market. The Applicant states that the Respondent is wholly responsible for the delay in the litigation and should not receive the benefit of an increased buy-out price as a result.
50The Applicant also argues that the remaining amount that the Respondent will owe her after she purchases his interest in the home with the off set of credits owing to her will be greater if she is a 50% owner of the home.
51The Applicant makes an alternative argument that there should be an unequal division of net family property pursuant to s. 5(6) of the Family Law Act. This claim was not made by the Applicant in her Application so I am not considering it in my decision.
52In Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, the Court of Appeal made clear that for married spouses, the equalization scheme in the Family Law Act is intended to address any unjust enrichment that would otherwise arise on marriage breakdown. Similarly, in McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401 at para. 66 the Court held: “in the vast majority of cases, any unjust enrichment that arises out of a marriage will be fully addressed by the operation of the equalization provisions under the FLA.”
53There is no dispute that the Respondent owns the home. The equalization calculation results in a payment owing from the Respondent to the Applicant. There is nothing in the evidence before me that makes this an exceptional case where the equalization provisions in the Family Law Act do not address an unjust enrichment that would otherwise have occurred on marriage breakdown.
54The Applicant made payments toward the costs of the home but she lived in the property from the date of marriage and continues to do so. She has had the use of the property and the benefit of the improvements she paid for and of not having had to move. I have found that she is entitled to be repaid for the amounts she paid for the home on the Respondent’s behalf. This monetary reimbursement and the equalization payment are sufficient to address any unjust enrichment.
55The Applicant seeks a non-dissipation order under s.12 of the Family Law Act. Paisley J. made a non-dissipation Order on December 20, 2018. This was made after the Order of Kristjanson J. striking the Respondent’s pleadings. Based on my decision in this matter, I find that a further non-dissipation order is not required to protect the Applicant’s interests.
The Children’s Romanian Passports
56The Respondent is an American citizen. The two children have United States’ passports and Social Security Numbers.
57The Applicant was born in Romania. The children would like to obtain Romanian birth certificates and their passports so they will have options to live and study in the European Union. The Applicant states that to apply for the passports, the children must obtain Romanian birth certificates.
58The Applicant spoke to the Romanian Consulate to investigate the process and documents required to obtain the birth certificates for the children. The Consulate requires citizenship and birth documents from both parents and requires the family to attend at the Consulate to sign documents. The Applicant states that the children spoke to their father directly and told him about the appointment. The Respondent said he did not have the documents required and came to the meeting at the Consulate without them.
59The Applicant asks for an order that the Respondent be required to produce the documents required and be made to attend at the Romanian Consulate with these documents and sign any documents required to permit the children to obtain their Romanian birth certificates.
60The children have both Canadian and American citizenship and passports. While a Romanian passport would provide them with additional opportunities for work and study abroad, I have no jurisdiction to compel the Respondent to facilitate the children obtaining one. The children are both over the age of majority. On the facts before me, I find that this is not an area where I have the jurisdiction to compel a parent to act.
61I also have no jurisdiction to compel the Romanian government to issue birth or citizenship documents to individuals who do not comply with the required process.
Costs
62The Applicant has provided Statements of Accounts and Bills of Costs from her counsel, Lester Cuellar and Lawrence Geffen for fees and disbursements incurred from October 10, 2016 up to and including the attendance at the uncontested trial on April 25, 2019. She seeks full indemnity costs in the amount of $35,829.77 inclusive of HST and disbursements.
63Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules: Mattina v. Mattina, 2018 ONCA 867 at para. 10.
64Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519 at para. 12. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) (unreasonable conduct of a successful party), Rule 24(8) (bad faith), Rule 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 at para. 94.
65I have considered the factors set out in Rule 24(12) of the Family Law Rules, which reads as follows:
24(12) In setting the amount of costs, the court shall consider, a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i) each party’s behaviour; ii) the time spent by each party; iii) any written offers to settle, including offers that do not meet the requirements of rule 18; iv) any legal fees, including the number of lawyers and their rates; v) any expert witness fees, including the number of experts and their rates; vi) any other expenses properly paid or payable; and b) any other relevant matter.
66Rule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(1) above). It reads as follows:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; b) the reasonableness of any offer the party made; and c) any offer the party withdrew or failed to accept.
67I have also considered Boucher et al. v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at para. 26, where the court held that "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant." The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake.
68The Respondent’s behaviour in this litigation was unreasonable. He was given many opportunities but failed to produce the required financial disclosure. His pleadings were struck. He appealed that decision but then did not take steps to perfect the appeal. He unilaterally stopped paying child support in January 2019 in breach of Perkins J.’s Order. He has not contributed to any of the children’s post-secondary expenses. This behaviour amounts to bad faith. As a result, the Applicant is entitled to her costs on a full recovery basis to be paid immediately.
69The Applicant was put to considerable legal and personal expense since separation to pay for the costs of the home and children and the litigation with minimal contribution from the Respondent. She was successful on her claims before me. I find that the hourly rates and time spent by her counsel in the proceeding were reasonable and proportionate in all the circumstances.
70I award costs to the Applicant in the amount of $35,829.77 inclusive of HST and disbursements, fixed and payable by the Respondent.
Calculation Summary
71The amounts owing to the Applicant from the Respondent as calculated by me are as follows:
a. Child support: $92,388 b. Section 7 expenses: $41,320 c. Lump sum spousal support: $39,192 d. Equalization: $171,607 e. Payments for carrying costs and repairs/renovations to home: $49,306 f. Costs: $35,829.77
Total credits owing to the Applicant: $429,642.77
72Section 34 (c) of the Family Law Act permits the transfer of a property as part of an order for child and spousal support. Where an application is made for equalization under s. 7 of the Family Law Act, a court may order the transfer of a property from one spouse to the other under section 9(1) (d)(i), to satisfy the equalization payment owed.
73The current appraised value of the home is $320,000. With deductions for notional commissions of 2.5% ($8,000) and notional legal fees of $1,000, the net value of the home is $311,000. After the transfer of the home from the Respondent to the Applicant, $118,642.77 remains owing from the Respondent to the Applicant for payments owing to her as calculated above.
Order
The Respondent shall transfer to the Applicant all of his right, title and interest in matrimonial home known municipally as 3420 Eglinton Ave. E., Suite 208, Scarborough, Ontario, including all of his rights under Part II of the Family Law Act at an appraised value of $320,000 less 2.5% notional real estate commissions and $1,000 notional legal fees, for a net valued transferred of $311,000. This amount is in partial satisfaction of the amounts owing by the Respondent to the Applicant, which total $429,642.77 as follows: a. The Respondent shall pay to the Applicant lump sum retroactive child support for the children, E. born March 14, 1997 and I. born October 30, 1998 in the amount of $92,388 pursuant to the Child Support Guidelines, based on the Respondent’s income being imputed at $109,544 per year for the period from August 1, 2013 through April 30, 2019. The Respondent shall receive credit for child support paid pursuant to the Order of Perkins J. in the amount of $15,912, which is $306 per month from October 2014 to January 1, 2019; b. The Respondent shall pay a lump sum representing his 60.3% share of retroactive section 7 expenses of $68,525 for the two children pursuant to the Child Support Guidelines based on an imputed income to the Respondent of $109,544 and the Applicant’s income of $52,771 for the period from August 1, 2013 to April 30, 2019, in the amount of $41,320; c. That Respondent shall pay lump sum retroactive spousal support to the Applicant in the amount of $39,192 for the period from January 1, 2014 to December 31, 2018, which is the mid range for the Spousal Support Advisory Guidelines based on an imputed income of $109,544 and the Applicant’s income in each of those years. This amount is not taxable to the Applicant or deductible to the Respondent; d. The Respondent shall pay the Applicant an equalization payment of $171,607; e. The Respondent shall pay the Applicant the sum of $49,306, for payments made by her on his behalf for the carrying costs, repairs and maintenance of the matrimonial home; f. The Respondent shall pay the Applicant her costs of this proceeding on a full indemnity basis in the amount of $35,829.77.
After the transfer of the matrimonial home from the Respondent to the Applicant, the Respondent owes the Applicant $118,642.77. This payment shall be made within 60 days and shall be enforced by the Family Responsibility Office as support.
Commencing May 1, 2019, the Respondent shall pay child support for two children, E. born March 14, 1997 and I. born October 30, 1998, in the amount of $1,588 per month based on an imputed income of $109,544 for so long as they are children of the marriage as defined in the Divorce Act;
Commencing May 1, 2019, the Respondent shall pay his proportionate share of 60.3% of the two children’s section 7 expenses based on his income of $109,544 and the Applicant’s income of $52,771 including all post-secondary education expenses for so long as they are children of the marriage as defined in the Divorce Act. The Applicant shall provide the Respondent with copies of the receipts or invoices for the expenses and he shall pay his 60.3% share directly to the institution or reimburse the Applicant if she has paid the expense herself.
Commencing January 1, 2019, the Respondent shall pay spousal support to the Applicant in the amount of $992 per month based on the mid range of the SSAG based on an imputed income of $109,544 for the Respondent and the Applicant’s income of $52,771. The support shall be payable for an indefinite duration subject to material change. The support shall be taxable to the Applicant and deductible to the Respondent in accordance with the Income Tax Act.
An SDO shall issue.
The Respondent shall designate the Applicant as the irrevocable beneficiary for herself and as a trustee for the children of his life insurance policy with Canada Life and/or London Life or another policy with a total face value of at least $250,000. He shall pay the premiums and shall maintain said policy until such time as child or spousal support is no longer payable. The Respondent shall keep the policy in full force and effect and provide annual proof to the Applicant that he has done so.
The divorce is hereby severed from the corollary relief issues and may proceed on an uncontested basis.
E.L. Nakonechny, J.
Released: May 28, 2019