COURT FILE NO.: 46176-12
DATE: 2019-01-22
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN HENRY CHRISTMANN
Applicant
– and –
LAURA MAY CHRISTMANN
Respondent
Tania Harper, for the Applicant
Theodore C. Dueck, for the Respondent
HEARD:
July 17, 18, 20, 23, and September 10, 2018
D.A. Broad
REASONS FOR JUDGMENT
Background
[1] The applicant husband and respondent wife commenced cohabitation in October 1994, were married on March 17, 1995, and separated on or about March 17, 2011. They therefore had a relationship of some sixteen and a half years.
[2] There are two children of the marriage Kayleigh, born February 7, 1997 (now age 20) and Noah, born January 12, 2001 (now age 17).
[3] The parties have entered into a statement of facts (the “Agreed Statement of Facts”) which are not in dispute for the purpose of the trial, consisting of 25 pages and 91 paragraphs, plus appendices. The following background facts are derived from the agreed statement of facts.
[4] The parties moved from Waterloo, Ontario to United Arab Emirates (“UAE”) in mid-2007. The applicant had been employed in the utilities department of the City of Kitchener and resigned his position when the parties moved to the UAE. The respondent was employed as a teacher with the Waterloo Region District School Board (the “Waterloo Board”) and negotiated a two-year leave of absence from her teaching position to facilitate the parties’ move to the UAE.
[5] The respondent worked as a teacher in the UAE from 2007 to mid-2016. She was required to give up her employment with the Waterloo Board when the parties mutually decided to stay longer than two years in the UAE, as the Waterloo Board would not extend her leave beyond 2009. She obtained a Master’s degree while living in the UAE following separation.
[6] The applicant obtained a position in the oil and gas industry in the UAE in December 2007. He lost his job in April 2010 and remained unemployed until the date of separation.
[7] The applicant moved back to Waterloo, Ontario with the children in June 2011. The children wanted to move back to Canada at that time. The applicant and the children moved back into the parties’ jointly-owned home in Waterloo.
[8] The respondent remained in the UAE following the applicant and the children moving back to Canada. There was no reasonable prospect of the respondent obtaining a teaching position in Ontario on such short notice at that time. Moreover, the respondent determined that she needed to stay in the UAE longer to pay off family debts accumulated in her name and to secure a job in Ontario before returning.
[9] The UAE has strict rules governing the ability of expatriate workers to obtain credit and their ability to leave the country while they have outstanding debt is restricted. Expatriates are generally not permitted to leave the country unless they can prove that they have paid off all of their debts to local creditors or they can prove that they are intending to return and complete their employment contracts. Expatriates who skip out on their debts risk being arrested and imprisoned if they ever set foot in the UAE again.
[10] Joint debts are not permitted in the UAE and an expatriate worker can only obtain a loan from a UAE bank with the support of a letter from his or her employer confirming their employment status. Such loans are always in the name of the employed individual, regardless of whether the purpose of such loans is for joint or family use.
[11] When the applicant left for Canada with the children in June 2011 the respondent had already signed a contract to start a new position with Abu Dhabi Education Council (“ADEC”) commencing in September 2011 and she had debts in her name that had to be paid off in the UAE before she could depart.
[12] The applicant had accumulated loans equivalent to approximately $100,000 CAD, in his own name while in the UAE. He would therefore ordinarily not have been allowed to leave the UAE to return with the children to Ontario in the summer of 2011 as he was then unemployed.
[13] The applicant obtained a falsified document purporting to certify that he had signed a contract with an employer to commence in the fall of 2011 and that he was only going home with the children for a summer visit and would be returning. The applicant’s representations in this document were false, but it was on the strength of them that he was able to exit the UAE in June 2011 with the children.
[14] Finding another teaching job in Ontario proved very difficult for the respondent and she eventually determined that she needed to upgrade her qualifications by completing a Master’s program in order to obtain employment in Ontario. It took her longer than anticipated to pay off the debts in the UAE and she borrowed funds after separation to finance her obtaining a Master’s degree to enable her to obtain employment in Ontario. It was for these reasons that the respondent was delayed in returning to live and work in Ontario until mid-2016, five years’ post-separation.
[15] A portion of the respondent’s debt incurred during the marriage was the result of funds that the parties agreed would be set aside in the applicant’s account to pay for their rent being spent by him for other purposes, which made it necessary for the respondent to take out a loan in her name to pay the parties’ landlord. It was customary for landlords in the UAE to require expatriates to pay one year’s rent in advance in order to secure accommodation.
[16] The parties had rented out their matrimonial home in Waterloo while they lived in the UAE. The rental income was sufficient to offset the carrying costs of the matrimonial home for several years.
[17] Shortly after the parties separated, the tenant moved out, leaving the matrimonial home vacant. As a result, the respondent began paying the carrying costs of the home, in addition to her rent in the UAE as the applicant remained unemployed.
[18] Upon their return to Waterloo in June, 2011 the applicant and the children moved back into the parties’ jointly-owned home in Waterloo. The respondent returned home in late July, 2011 and she resided with the children in the matrimonial home while the applicant lived elsewhere. The respondent remained in the matrimonial home with the children until approximately September 20, 2011 when she secured a visa to permit her to return to the UAE to take up her teaching position.
[19] The applicant moved back into the matrimonial home with the children after the respondent returned to the UAE on September 20, 2011 and remained there until September 2012 when he moved with the children to reside with his female friend in Burlington, leaving the matrimonial home vacant.
[20] The parties refinanced the matrimonial home in July 2011, increasing the mortgage to $225,000 to consolidate various debts that they had accumulated.
[21] The mortgage was not kept current and fell into arrears on several occasions, requiring the respondent to make additional payments on behalf of both parties to put the mortgage in good standing and to avoid the mortgagee from taking power of sale proceedings.
[22] The respondent began asking the applicant to put the house up for sale as early as October 2011. The applicant did not agree to do so.
[23] In December 2011, the respondent obtained an opinion of value of the matrimonial home from a realtor and provided that information to the applicant. The home was valued at $389,000 at that time and the mortgage balance stood at $223,607.81.
[24] In May 2012 the applicant communicated with the respondent by email that he had listed the house for sale and had received some offers in excess of $400,000, but he refused to sell until a separation agreement was signed.
[25] The respondent's then lawyer wrote to the applicant advising him to sell the house and stated that she could provide an interim separation agreement regarding the sharing of the net sale proceeds, with all other issues regarding property division, support and the like to be addressed in a separate agreement. The applicant did not proceed on this basis and the mortgage arrears continued climbing. Power of sale was eventually threatened by the bank later in 2012.
[26] The applicant ultimately acknowledged that his representations to the applicant regarding supposed offers he had received on the house had been false. He had not listed the house for sale and had not received any offers as he had represented. He said that made these false statements to the applicant in an effort to induce her to enter into a separation agreement.
[27] The matrimonial home was eventually sold on March 15, 2013 for $370,000, and the amount received from the purchasers on closing after adjustments was $367,663.66. The mortgage payout at closing was $241,367.36.
Issues
[28] The issues for determination in this proceeding are as follows:
(a) Equalization of Net Family Property. In particular, the parties disagree on the value of the following assets and debts on the date of separation:
Assets:
(i) The value of the household contents and goods retained by the applicant in the UAE after separation;
(ii) The value of an Iranian carpet retained by the applicant after separation;
(iii) The value of an expensive stereo system retained by the applicant after separation;
(iv) Entitlement to dining room table, chairs and china cabinet;
(v) Entitlement to china dishes and cutlery gifted by applicant’s mother to both parties as a wedding gift;
(vi) The value of the applicant’s OMERS pension;
Debts:
(vii) Traffic fines incurred during the marriage and paid by the respondent;
(viii) Notional future income tax on the applicant’s OMERS pension;
(ix) Whether there is a loan owing to the applicant’s parents and, if so, the amount thereof, and whose liability it is.
(b) Post-separation adjustments in favour of the respondent related to the alleged delayed sale of the matrimonial home, in particular:
(i) Whether the matrimonial home could have sold for $400,000 in May, 2012; and
(ii) Additional mortgage arrears, property tax arrears and mortgage enforcement legal costs resulting from the delayed sale.
(c) Child Support and Spousal Support, and in particular, the following:
(i) Imputation of income to both parties;
(ii) Which children are entitled to be supported and for what periods;
(iii) Whether the applicant has any entitlement to spousal support from the respondent;
(iv) The impact of the respondent earning income in the UAE tax-free;
(v) The impact of fluctuating exchange rates between the UAE Dirham and the Canadian Dollar;
(vi) What additional contract “benefits” received by the respondent from her employers in the UAE should be treated as income for support purposes; and
(vii) The amount of support actually paid by the respondent following the separation.
(d) Due to the ages of the children custody and access are not issues.
Credibility
[29] The trial revealed serious issues with the applicant’s credibility.
[30] Counsel for the respondent characterized the applicant’s testimony as revealing a “remarkably brazen and unapologetic acknowledgement of being untruthful and lacking integrity.” I accept this characterization of the applicant’s approach to the need to tell the truth.
[31] Examples of the applicant’s lack of candour include the following:
(a) In 2009 the parties had agreed to set funds aside in the applicant’s to have it available to pay their landlord when he required payment. The rent had been due in August, but the landlord did not require payment until December. In the intervening period the applicant purchased an expensive stereo system for approximately $20,000 CAD which he did not disclose to the respondent, keeping the system hidden from her in boxes. The funds which the parties had ear-marked for payment of rent was no longer available as a result of the applicant’s purchase of the stereo system, which required the respondent to incur further personal debt to pay their landlord;
(b) Following separation in 2011 the applicant sought and obtained a false letter of employment on fake letterhead representing that he had a job and was leaving the UAE only temporarily to return at the end of the summer. This allowed the applicant to leave the country notwithstanding that he had approximately $100,000 CAD in bank and credit card debts. He also showed this letter to the respondent leading her to believe that he had obtained a job;
(c) The applicant swore an affidavit on December 1, 2012 in support of an ex parte motion which resulted in the temporary without prejudice Order of Campbell, J.. The applicant’s affidavit contained a number of deliberately false and misleading statements, including the following:
(i) that the respondent had looked after the parties’ finances during the marriage, whereas, while they lived in the UAE the parties each had separate bank accounts and separate loans, and the applicant had been looking after his own finances;
(ii) that the respondent “was continuing to hide every cent she can” when the applicant was fully aware of all of the parties’ investments and loans in Canada and the applicant was unable to point to any failure of the respondent to disclose her salary and other financial information while they lived in the UAE. He acknowledged on cross-examination that, following separation, he was aware that the respondent’s job at Nord Anglia school was ending in June 2011 and knew that she had obtained a new job at ADEC commencing in the fall. He acknowledged receiving from the respondent a copy of her contract with ADEC, setting forth her remuneration, prior to the affidavit he submitted to Justice Campbell in which he represented that the respondent was hiding her income from him. He did not disclose to Justice Campbell that he had been provided with a copy of the respondent’s current employment contract as well as a copy of her pay slip and a salary payment certificate from her employer;
(iii) that the respondent had “not responded to any legal attempts I have made to serve her,” without disclosing to Justice Campbell that on July 5, 2012 the respondent’s then lawyer had offered to accept service of court documents on her behalf. On cross-examination at trial the applicant acknowledged that he could have served the respondent by serving her lawyer but elected not to do so but nevertheless falsely represented to the court that the respondent had not responded to his attempts to serve her;
(iv) that he based his representation of the respondent’s current income on her former contract with Nord Anglia which he knew, without disclosing this to Justice Campbell, had ended in June 2011. He did not disclose to Justice Campbell that he had been provided by the respondent with her new contract with ADEC, a pay slip and a salary certificate disclosing her substantially reduced salary at ADEC from what she had received at Nord Anglia;
(v) that he represented to Justice Campbell that the respondent’s remuneration from Nord Anglia (which he knew was not her current employer) included an education allowance to pay for the children’s private school education, when he knew that it was not being paid as the children had returned to the Canada. On cross-examination at trial he acknowledged that he had misled Justice Campbell by falsely including the schooling allowance in his representation of the respondent’s income;
(vi) that he falsely represented to Justice Campbell in his affidavit that the respondent, while working at the Waterloo Board, had been suspended as a disciplinary measure for abusing kindergarten students, when he knew that she was never suspended and never disciplined, but that she was only off work with pay while the school board conducted an investigation following a complaint on the way she had responded to a violent child in the classroom. The investigation resulted in no discipline of the respondent; and
(vii) that he acknowledged on cross-examination that he had falsely represented in his affidavit that the respondent had not filed any Financial Statement despite being represented by a lawyer, and had terminated her lawyer’s services on the advice of her peers “citing that no one could force her to comply with family support guidelines”;
(d) The applicant represented in the proceeding that he had brought into the marriage an asset, being a boat, with a value of $45,000 for which he was entitled to credit on his Net Family Property calculation. It was not until questioning that it was disclosed that on the date of the marriage there was a debt owing on the boat equal to its value and that he was therefore not entitled to a credit for the value of the boat;
(e) The applicant acknowledged that that there were significant misrepresentations regarding his work history in his resume submitted to prospective employers, including that he had worked for various named employers, when he had worked for subcontractors, that he had worked at the City of Kitchener for 17 years rather than 5 years, and that he had not disclosed his employment at a company from which he had been terminated for cause. At trial the applicant attributed these discrepancies to “typographical errors”;
(f) As indicated above, the applicant sent an e-mail to the respondent in May, 2012 stating “the house is on the market. I had three offers over the $400,000 mark but I had to refuse them due to the lack of a separation agreement documents on your part. The real estate sign has been taken down until you supply me with the documentation of the said agreement.” The applicant acknowledged on cross-examination that the statements in his e-mail to the respondent were fabrications, but he made them “to get Laura to get going with our real estate agent.” Earlier in his examination in chief he stated that he made the fabrications to try to induce the respondent to enter into a separation agreement.
[32] It is clear from the numerous examples of falsehoods emanating from the applicant that his approach to the need to be truthful was that “the end justifies the means.” It is evident from his affidavit submitted to Justice Campbell that he was prepared to mislead the court under oath or affirmation and to make serious unfounded allegations about the respondent when it suited his purposes and when he thought he could obtain some personal advantage from doing so.
[33] In contrast, I find that the respondent was honest and forthright in her testimony. The facts which she related were consistent with the available documents. She was willing to make reasonable concessions while testifying.
[34] Although there were delays in completion of the respondent’s financial disclosure during the proceeding, this did not affect her overall credibility. While she was still resident in the UAE she had relied on a former counsel who had subsequently had his license to practice forfeited by the Law Society, to complete disclosure based upon documentation she had provided to him. Unfortunately, unbeknownst to her, this disclosure was not completed by this former counsel. This led to unfortunate delays in the completion of financial disclosure, however, it had nothing to do with the respondent’s determination to be truthful in her evidence to the court.
[35] In the result, due to serious concerns with the applicant’s credibility, where there is conflict between the testimony of the applicant and that of the respondent on issues, the respondent’s version is to be preferred.
Equalization of Net Family Property
[36] With the assistance of counsel, the parties agreed at the commencement of the trial on many of the entries on their respective Net Family Property Statements. Additional agreement was reached on some of the entries following the evidence at trial. In the result, the issues in dispute on equalization are as follows:
(a) Value of Household Contents Retained by the Parties
[37] The parties agreed at the conclusion of the evidence that the value of the household contents (other than those specifically referred to in the draft Net Family Property Statement filed by the parties) retained by the parties shall be $1,500.00 for the applicant and $10,000 for the respondent.
(b) Applicant’s Iranian Carpet
[38] The applicant has placed a value of $500 on an Iranian carpet which he retained following separation. He purchased it while in the UAE for approximately 15,000 UAE Dirham, or approximately $5,000 CAD. After separation the applicant went to live, along with the children, at the residence of friends until they returned to Canada. He testified that he left the Iranian carpet with the hosts when they left. He did not offer any justification for the value which he proposed in his Net Family Property Statement of $500.00. He led no evidence on whether an Iranian carpet of this quality was subject to depreciation or appreciation in value. In my view, the fact that the applicant left the carpet with his hosts on his departure is not material to the issue of its value on separation. I am not in a position to take judicial notice that the Iranian carpet was susceptible to depreciation after its purchase. The best evidence of its value is its purchase price of $5,000.00 CAD. On cross-examination the applicant acknowledged that on separation he retained a carpet worth at least $5,000.00 CAN. I find this amount to be value of the Iranian carpet for the purposes of the applicant’s Net Family Property calculation.
(c) Applicant’s Stereo System
[39] Following separation the applicant retained the stereo system which, as stated above, he purchased for approximately $20,000.00 in the UAE. The system, on separation, remained in the original unopened boxes it came in. The applicant acknowledged on cross-examination that when he shipped the stereo system home to Canada it was still in its original unopened boxes. He testified that, following receipt of the system in Canada, he arranged to have the voltage changed to make it compatible for use in Ontario and he used the system for a period of time and then sold it for $9,000 CAD cash with no receipt. He agreed with the suggestion of the respondent’s counsel that on the date of separation, in its brand new condition, it was worth $20,000 CAD. I find that the stereo system retained by the applicant on separation was worth $20,000 CAN on separation based upon that admission.
(d) Miscellaneous Items
[40] The respondent claims possession of a dining room table and set of chairs that she owned on the date of marriage. The applicant refused to return these items to her but acknowledged on cross-examination that “she can have” them. Based upon this admission the applicant is ordered to deliver the dining room table and set of chairs to the respondent within 30 days, at his own expense.
[41] The parties acquired a hutch to go with the respondent’s dining room table and chairs during the marriage which the applicant retained on separation. Neither party provided evidence of its value on separation. In the absence of such evidence I fix a value for the hutch in the sum of $100.00 for the purposes of the applicant’s Net Family Property Statement.
[42] The respondent retained a set of china dishes and cutlery which were gifted to both parties on their wedding by the applicant’s mother. The applicant claims possession of these items. In my view the applicant has no higher right to possession than does the respondent. Neither party provided evidence of its value on separation. In the absence of such evidence I fix a value of these items at $100.00 in the aggregate for the purposes of the respondent’s Net Family Property Statement.
(e) Applicant’s OMERS Pension
[43] The applicant did not obtain a statement of the family law value of his OMERS pension as of the date of separation pursuant to s. 67.2 of the Pension Benefits Act, R.S.O. 1990, c. P.8. The only value presented in evidence was the commuted value of his pension entitlement as of September 2016 (some five and one-half years post-separation) in the sum of $45,548. On his examination for discovery the applicant agreed that the 2016 commuted value should be used for the purposes of his Net Family Property calculation.
[44] After Ms. Harper, counsel for the applicant, confirmed that the applicant had not obtained the family law value for his pension, counsel for the respondent Mr, Dueck asked Ms. Harper "are you prepared to use the $45,548.38 computed value as the value of his pension?" to which Ms. Harper responded "I am and I think my client would be willing to consent to that."
[45] The applicant stated "yeah, oh yeah, definitely, yes." and later added "I've no dispute about that at all,…that was earned during our marriage. That's fine."
[46] Ms. Harper for the applicant argued that it would be unfair to ascribe a value of the sum of $45,548.38, being the commuted value as of September 2016 as equivalent to the “family law value” of his OMERS pension as the value would have grown in the intervening five and one-half years post-separation. She proposes a figure of $34,161.28, which derives from a calculation which she conducted, utilizing the rate of return which she says the respondent enjoyed on her Locked-in Retirement Account (LIRA) during the same five and one-half years post-separation.
[47] On the authority of Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.) at paras. 77-83, I find that the applicant’s admission made on questioning that the sum of $45,548.38 may be utilized for the purposes of equalization was an “informal” admission which was not conclusive and the applicant did not require leave of the court to withdraw it. An informal admission made on discovery may be overcome by other evidence. A party making an informal admission may later lead evidence to reveal the circumstances under which the admission was made in order to reduce its prejudicial effect.
[48] There was no reference at trial to the applicant having sought to correct his answers on questioning pursuant to rule 31.09 of the Rules of Civil Procedure which places a duty on a party examined for discovery who subsequently discovers that the answer to a question was incorrect or incomplete when made, or is no longer correct or complete, to forthwith provide the corrected information in writing to every other party. Rule 31.09 provides that where the party fails to provide the corrected information and the information is favourable to the party’s case, the party may not introduce it at trial except with leave of the court.
[49] Rule 53.08(1) provides that leave shall be granted to introduce the evidence, if the party has failed to correct or update information given on discovery, on such terms as are just and with an adjournment if necessary, unless to do so would cause prejudice to the opposite party or cause undue delay in the conduct of the trial.
[50] Rules 31.09 and 53.08 of the Rules of Civil Procedure have application in this proceeding by virtue of rule 1(7) of the Family Law Rules.
[51] In my view, in the circumstances, leave would have been granted to the applicant to introduce evidence with respect of the “family law value” of his OMERS pension, notwithstanding the admission made by him on questioning that the sum of $45,548.38 may be utilized. The dilemma for the court is that Ms. Harper’s calculation, based upon an assumption that the rate of return on the OMERS pension during the relevant pension was equivalent to the rate of the return on the respondent’s LIRA, is not evidence. No witness gave evidence on what the rate of return on OMERS pension was and, as mentioned, the applicant did not provide a statement of the family law value of his pension under the Pension Benefits Act and O. Reg. 287/11, as amended. It would have been straight-forward for the applicant to obtain a statement of the family law value, but none was obtained.
[52] In my view, there is no evidence of the family law value of the applicant’s OMERS pension which could overcome the admission of value made by the applicant on questioning. On this basis I find that the value of the applicant’s OMERS pension for the purposes of the calculation of his Net Family Property is the sum of $45,548.38.
[53] The parties are agreed that the notional future tax on the applicant’s OMERS pension would be a function of the court’s finding on the value for Net Family Property purposes calculated at the rate of 20%. On this basis I find a debt for notional tax on the applicant’s side of the ledger in the sum of $9,109.69.
(f) Debt for use of toll-roads in the UAE
[54] The respondent claims as a debt on her New Family Property statement, as of the date of separation, a fine levied by the relevant UAE authorities for unpaid tolls on the state-owned highway in the sum of $781.06 which she was required to pay prior to departing the UAE. She testified that these charges were incurred by the applicant when he was using the vehicle registered in her name. When she approached the applicant to contribute to payment of this debt his response was that, because the vehicle was registered in her name, it was her responsibility.
[55] The applicant did not offer any cogent basis why this debt should not be included in the respondent’s Net Family Property calculation. It was a debt that existed on the date of separation in the name of the respondent and which she paid post-separation.
[56] The sum of $781.06 is to be credited to the respondent for this item as a debt for equalization purposes.
(g) Loan from the Applicant’s Parents
[57] The applicant seeks, through this proceeding, recognition of a debt he says remains owing by both him and the respondent to the estate of his late mother Maria Christmann, who died in early 2018 and/or to the estate of his father Matthias Christmann, who died earlier. The debt is represented by a promissory note dated August 2000. The note stated:
“To: Mat and Maria Christmann
Re: loan of $43,800.00
We agree to pay you the sum of $1,000.00 per month for 44 months. Payment is to begin on September 15, 2000. Payments will be made by cheque
Laura Christmann
Steve Christmann”
[58] Although there were different accounts given at trial by the applicant, the applicant’s brother Norbert Christmann and the respondent with respect to the circumstances under which the promissory note and the indebtedness to the applicant’s parents came into existence, there was no serious dispute that the promissory note represented a legitimate debt owing by the applicant and the respondent to the applicant’s parents as of August 2000.
[59] There was also no dispute that, during the marriage, the applicant and the respondent made payments to the applicant’s parents. However, there was no clear evidence on how many payments were made by them nor on the amount of principal remaining on the note.
[60] Norbert Christmann produced a spreadsheet which he said he prepared for his father to record payments when they were received. The spread sheet bears sixteen handwritten checkmarks which he asserts were made by his father, indicating receipt of sixteen payments of $1,000.00 each, from September 1, 2000 to January 1, 2002 (excluding November, 2001) and the handwritten figure “800.00” endorsed opposite the date April 1, 2004. Norbert Christmann did not testify that he observed his father placing the checkmarks on the spreadsheet, and there was no reliable evidence that the checkmarks reflected all of the payments made by the applicant and the respondent on the note.
[61] For her part, the respondent testified that she and the respondent made the last payment to the applicant’s mother in October 2009 and that, as of March 2010, she and the applicant believed that approximately $17,000 remained outstanding on the note. She acknowledged that neither the applicant nor she maintained an accurate tracking of all payments.
[62] On February 7, 2009 Norbert sent an email to the applicant and respondent following Mattias Christmann’s death, representing himself to be the executor of his father’s estate, in which he took the position that $26,800 in principal was outstanding on the note and claiming interest at 5% per annum from the date that the last payment ought to have been made, bringing the total indebtedness of the applicant and the respondent to Matthias Christmann’s estate, inclusive of interest, to $33,500.00 at that time.
[63] Norbert also produced a copy of a handwritten joint Will of Matthias and Maria Christmann dated August 20, 1986 in which they left their entire estate to their three sons, Herbert, Norbert and the applicant Steven in equal shares, and appointed Norbert Christmann to be their executor. They concluded the Will by stating “if one spouse predeceases the other the estate goes to the living spouse.”
[64] No certificate of appointment has been issued in respect of the estate of either Matthias or Maria Christmann.
[65] Norbert Christmann produced two alternate “Loan Calculators” which he obtained on the internet, purporting to be loan amortization schedules for the note, based upon a principal amount of $27,800.00 and bearing interest at the rate of 5% per annum from April 1, 2004 and April 1, 2009 respectively. The former “Loan Calculator” showed the amount owing, including accrued interest, as of July 1, 2018, to be $50,813.22, and the latter to be $37,937.42.
[66] There is no evidence that the applicant and/or the respondent ever agreed to pay interest on the note or that Matthias or Maria Christmann ever made any request of them to pay interest. The promissory note does not provide for interest.
[67] There is no dispute between the parties that the loan from the applicant’s parents, whatever its genesis, was made to the applicant and respondent jointly. Accordingly, if it is to be accounted for in the parties’ Net Family Property calculations, each party would show one-half of the amount found to be owing and accordingly it would have no effect on equalization of their Net Family Property.
[68] It therefore appears that the applicant seeks to have the loan to his parents recognized in this proceeding for a purpose other than equalization. Some insight into that purpose can be drawn from the following:
(a) the evidence of the applicant that in January 2018, prior to the scheduled trial of this matter, which had to be adjourned, he gave a personal cheque to his mother (prior to her death) in the sum of $21,000 as his purported share of the debt, but his mother refused to cash or deposit the cheque unless and until she was paid an equivalent amount by Laura Christmann;
(b) the evidence of Norbert Christmann, representing himself as the estate trustee of the estate of his mother Maria Christmann, that if the court rules that the loan is not to be paid in all or in part by Laura Christmann he would not pursue the applicant, stating “if one party doesn’t pay, neither pays.”
[69] An analogous situation involving advances received by parties prior to separation from the parents of party arose in the case of Brownstein v. Hanson 2003 CanLII 64332 (ON SC), [2003] O.J. No. 3113 (S.C.J.). After determining that advances made by the parents of the husband where loans and not gifts, Blishen, J. went on to consider whether or not the face value of the debts should be inserted in the calculation of net family property. In doing so she made reference to the decision of Heeney, J. in Poole v. Poole, 2001 CanLII 28196 (ON SC), [2001] O.J. No. 2154 (S.C.J.) which in turn relied upon the approach taken by Aston, J. in Salamon v. Salamon, [1997] No. 852 (Ont. Ct. Gen Div.) calling for the debt to be examined to determine the probability of it ever having to be repaid and of, upon examination, that probability is low or non-existent the debt should be discounted accordingly.
[70] In Poole Heeney, J. stated at para. 36:
There is a compelling reason for taking this good hard look at the reality of the situation. A debt constitutes a credit in the equalization calculation, and reduces the net family property of the spouse claiming the debt. This has a direct impact on the equalization payment due, by either reducing the amount that party has to pay to the other (if he has the higher net family property), or increasing the amount that he will receive (if his net family property is lower). Fairness dictates that he should not receive a credit for a debt, with the financial benefits that flow from that credit, if he will never be called upon to pay the debt.
[71] The approach in Poole was recently endorsed by Van Melle, J. in Boulanger v. Hebert-Boulanger 2017 ONSC 482 (S.C.J.) by characterizing it, at para. 1, as involving two-stages:
(a) determine whether the note constitutes a genuine debt or a gift; and
(b) if found to be a debt, determine what value should be assigned to the debt based on the expectancy of repayment and whether it should it be inserted in the calculation of net family property.
[72] As I have indicated, it is clear that the advance of funds to the parties by the applicant’s parents was intended by them to be a loan and not a gift and was recognized as such by both the applicant and the respondent as evidenced by their execution of a promissory note and the payments that they made on it.
[73] The respondent testified that the last payment that she and the applicant made on the loan was towards the end of 2009. The spreadsheet which Norbert Christmann produced, upon which he stated Matthias Christmann recorded payments, is ambiguous. It indicated the last payment to have been made on either January 1, 2002 ($1,000.00) or April 1, 2004 ($800.00). There is no evidence that any payment was made by either the applicant or the respondent after 2009. There is also no evidence that either Matthias or Maria Christmann made any demand for payment on the applicant or the respondent at any time or that either of them made any acknowledgement of indebtedness on the note to Matthias or Maria Christmann following the last payment, which the respondent stated was in late 2009.
[74] The last written reference to the loan made by the applicant or the respondent on the evidence was their email response to Norbert Christmann on February 16, 2009.
[75] Although the application of the Limitations Act, 2002 S.O. 2002 chapter 24 Schedule B is strictly speaking a debtor/creditor issue as between the applicant and respondent, on the one hand, and the estate of Maria Christmann, (and possibly the estate of Matthias Chrstmann) on the other, in assessing the expectancy of payment of the debt by the applicant and the respondent, the court must have regard to the probability that any claim on the note will be barred by the applicable limitation period.
[76] In all of the circumstances I would place the probability of the applicant and the respondent being called upon to pay the note to the estate or estates at zero. The note called for all payments to be made within 44 months of August 2000. There is no evidence that any payments were made or that any acknowledgement of indebtedness was given by the applicant or the respondent after 2009. Accordingly, no value should be placed on the debt for the purpose of the parties’ respective Net Family Property calculations.
[77] There is a further ground upon which it should be found that no value should be placed on the debt for New Family Property purposes.
[78] In the case of Burke v. Burke (1987) 1987 CanLII 6944 (MB QB), 8 R.F.L. (3d) 393 (Man Q,B.) Madam Justice Helper (as she then was) made the following observations regarding “family loans" in Burke v. Burke (1987), 8 R.F.L. (3d) 393 (Man. Q.B.) at para. 20:
It is not an unusual practice within families for loans to be made by one family member of another, which loans are not evidenced in writing and which loans might or might not ever be repaid. To require separating or divorcing spouses to account one to the other for such loans where no demands have been made and which loans have become unenforceable in court and might never be repaid would be unjust. I cannot read such an intention into the legislation.
[79] Justice Helper held that Family Court was not an appropriate forum for determining enforceability of loans from parents.
[80] Burke was applied more recently in the case of Duff v. Duff 2007 CarswellNB 342 (N.B. Q.B.), a decision of Quigg, J.. Although she found that the promissory note signed by the husband and wife in favour of the husband’s parents to be a valid debt, she held that it was not to be included in any calculations for the division of marital debt (see para. 67).
[81] For this additional reason I similarly find that, in all the circumstances, it is not appropriate to include any indebtedness of the parties to the applicant’s parents under the August 2000 promissory note in the calculation of their Net Family Properties.
(h) Post-separation adjustment claim of the respondent for the delayed sale of the matrimonial home
[82] The respondent claims a post-separation adjustment in her favour based upon the applicant’s delay in agreeing to sell the matrimonial home. This claim has two aspects.
[83] First, the respondent claims that the home could have been sold in May, 2012 for the sum of $400,000, being the amount of more than one offer that the applicant represented to the respondent he had received. The home eventually sold in March 2013 for $370,000. The respondent argues that she is entitled to an adjustment equal to 50% of the differential (net of 5% real estate commission) in the sum of $14,250.00.
[84] The second aspect relates to additional mortgage arrears, property tax arrears and mortgage enforcement legal costs which the parties were required to pay to the mortgage on closing, totalling $18,960.91. The respondent claims an adjustment of 50% of that amount in the sum of $9,480.46.
[85] The total adjustment sought by the respondent related to the delayed sale of the matrimonial home is the sum of $23,730.46.
[86] In support of her claim, the respondent relies upon the case of Golda v. Syty-Golda, [2012] O.J. No. 5607 (S.C.J.), as decision of Mazza, J..
[87] In Golda the wife was the sole occupant of the matrimonial home following separation. The parties entered into an agreement of purchase and sale for the sale of the home, but on closing the wife failed to deliver vacant possession to the purchaser, maintaining various chattels on the premises, including a collection of expensive wine. She had assumed full responsibility for preparing the home for sale. As a result of the wife’s failure to provide vacant possession the sale was aborted. The home was eventually sold for $250,000 less than the sale price of the transaction which failed to close. Mazza, J. found that the wife should bear the loss incurred as result of the reduced sale price.
[88] Golda was referred to by the British Columbia Court of Appeal in Mular v. Lawrence 2014 BCCA 507 (B.C. C.A.). In Mular the Court ordered, on consent, the sale of the property, however, on closing, the wife refused to sign the conveyancing documents which resulted in the loss of the sale and the consequent claim by the purchasers for damages and the realtors’ claims to lost commissions. The property eventually sold at a reduced sale price. The court held that the wife who had refused to execute the conveyancing documents to complete the court-ordered sale should bear the loss arising from the aborted sale.
[89] In my view Golda and Mular are each distinguishable from the case at bar.
[90] In Golda the wife had entered into an enforceable agreement to sell the property, along with the husband, under which she had a contractual duty to delivered vacant possession. In failing to do so she breached her duty and was responsible for the loss suffered by the parties as a result.
[91] In Mular the court had ordered the sale of the property and the wife had refused to execute the conveyancing documents, thus frustrating the court-ordered sale. In doing so she breached a legal duty.
[92] In the present case, no order had been made by the court for the sale of the matrimonial home and the parties had not entered into any agreement of purchase and sale in respect of it. In refusing the respondent’s requests, as early as the fall of 2011, that he cooperate in listing the property for sale, the applicant did not breach any legal obligation.
[93] Pursuant to s. 9(1)(d)(ii) of the Family Law Act, R.S.O. 1990, c. F. 3 the court has the power, in an application under s. 7, to order that any property be partitioned or sold. The respondent brought no motion for the sale of the matrimonial home prior to trial. Indeed, the respondent did not file an Answer until January 18, 2018 and therefore had no claim before the court for the sale of the matrimonial home. Had the respondent felt that the respondent was unreasonably withholding his consent to the sale of the property, to her detriment, her remedy was to file an Answer advancing a claim for sale of the matrimonial home and to bring a motion for an order that it be sold.
[94] The respondent was unable to point to any authority for the proposition that a party may be held responsible for a post-separation adjustment for failure to cooperate in the sale of the matrimonial home in the absence of an order requiring a sale or the party voluntarily entering into an agreement for a sale.
[95] I would not give effect to the respondent’s claim for a post-separation adjustment on this basis.
(i) Summary of Property Claims
[96] At the conclusion of their final submissions, counsel for both parties submitted a draft joint Net Family Property Statement setting forth the agreed values of assets and liabilities of each party on the valuation date and the agreed value of property owned by each party on the date of marriage, subject to the determinations by the court on the disputed items.
[97] The draft joint Net Family Property Statement also set forth post-separation adjustments which parties had agreed to.
[98] The agreed post-separation adjustments called for credits to the applicant in the sum of $3,396.14 and credits to the respondent in the sum of $18,491.46.
[99] There was no dispute between the parties respecting the net value of property owned by each party on the date of marriage.
[100] Based upon the determinations of the disputed assets and liabilities for equalization purposes, the following is the court’s determination of the equalization payment to be made by the applicant to the respondent based upon their respective Net Family Property:
Applicant
Respondent
Initial Net Family Property calculations pursuant to draft agreed Net Family Property Statement, subject to adjustment
$157,178.07
$201,375.84
Table 1 – Value of Assets owned on valuation date
Household contents
$1,500 (agreed by the parties following trial)
Iranian Carpet
$5,000
Stereo system
$20,000
Dining room table and chairs – no adjustment
Hutch
$100
China dishes and cutlery
$100
OMERS Pension
$45,548.38
Table 2 – Value of debts and liabilities on valuation date
Notional future tax on OMERS pension
($9,109.69)
Traffic fines for toll roads in UAE
($781.06)
Loan from applicant’s parents
0
0
Adjustments to Net Family Property
$63,038.69
($681.06)
Adjusted Net Family Property based upon determinations made at trial
$220,216.76
$200,694.78
Equalization Payment
Applicant pays $9,760.99
[101] The following are the post-separation adjustments to be made by the parties, based upon their agreed values and the determination made by the court:
Credit to Applicant
Credit to Respondent
Agreed credits
$3,396.14
$18,491.46
Claimed credit for delayed sale
0
Total credits
$3,396.14
$18,491.46
Net credit to Respondent
$15,095.32
[102] The total net payment to be made by the applicant to the respondent in respect of the property claims is as follows:
Equalization payment
$9,760.99
Net post-separation adjustments
$15,095.32
Total payment to be made by Applicant
$24,856.31
Child and Spousal Support
[103] As stated in the Agreed Statement of Facts, the issues the parties respective entitlements and obligations in reference to child support and spousal support encompass a number of sub-issues including:
(a) Whether income should be imputed to both parties for certain periods;
(b) Which of the two children are entitled to be supported for what periods;
(c) Whether the applicant has any entitlement to spousal support as a threshold issue;
(d) The impact of the respondent having earned income tax-free in the UAE;
(e) The impact of fluctuating exchange rates between the UAE Dirham (AED) and the Canadian dollar; and
(f) What additional contract “benefits” received by the respondent while working in the UAE should be included in her income for support purposes.
[104] The parties are agreed that the respondent paid to the applicant the sum of $89,846.85 in support to the end of 2017. They also agree that this amount may be considered to be attributable to child support.
[105] The Agreed Statement of Facts set forth the following chronology respecting the children’s living arrangements and circumstances post-separation:
(a) Both children (Kayleigh and Noah) resided with the applicant in the matrimonial home in Waterloo from July 1 to 28, 2011;
(b) Both children resided with the respondent in the matrimonial home in Waterloo Region from July 28 until September 20, 2011 when she returned to the UAE;
(c) Both children resided primarily with the applicant from September 20, 2011 until the applicant returned to live in Ontario in July, 2016;
(d) Kayleigh commenced residing with the respondent at the beginning of August, 2016 and has continued to reside with the respondent until the present time;
(e) Noah has continued to reside primarily with the applicant until the present time. At the time of trial he was enrolled in Grade 11;
(f) Kayleigh commenced post-secondary education in September 2016 while residing with the respondent, withdrawing from her program after the first semester due to difficulties with addiction and mental health. She took the entire year to address these issues and returned to full-time studies in January 2018.
(g) Kayleigh worked full time at Canada’s Wonderland from May to September 2017 and also worked part-time at a pharmacy in 2017, averaging 10 hours per week.
[106] The Agreed Statement of Facts recite that the applicant, prior to departing the UAE, had received a job offer to work in Kuwait but did not accept it as he felt the working conditions were too dangerous. He instead returned to Ontario in July, 2011 with the misplaced expectation that he could regain his former job back with the City of Kitchener, which did not materialize.
[107] Despite his qualifications and work experience, the applicant did not obtain regular employment in Ontario until the latter part of 2012. He did work part-time at various jobs in 2012 for cash, not exceeding $5,000, which he did not report for tax purposes. The applicant’s line 150 income for the years 2011 to 2016 was as follows:
2011
None reported
2012
$20,271
2013
$39,139
2014
$45,032
2015
$47,729
2016
$52,550
A - Child Support
[108] In my view the initial period following separation on March 17, 2011 until September 20, 2011, when the respondent returned to the UAE, should be viewed as a transition period during which the children were not primarily resident with either parent, but rather they resided with each parent for relatively short periods. The children’s primary residence was with the applicant commencing September 20, 2011 to August 2016. At that time Kayleigh commenced residing with the respondent while Noah remained with the applicant.
(a) Was Kayleigh entitled to child support during 2017?
[109] I find that Kayleigh remained a child of the marriage throughout the period following her withdrawal from her university program after the fall 2016 semester until her return to her program in January 2018. The Agreed Statement of Facts specified that, “due to addiction and mental health issues," her first semester did not go well and "she temporarily withdrew from her studies after the fall 2016 semester" and "took off the entire year of 2017 to address her mental health and addiction problems."
[110] S. 15.1(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that the court may make an order requiring a spouse to pay for the support of any or all “children of the marriage.” The definition in s. 2 of “child of the marriage” includes a child of two spouses or former spouses who is of the age of majority or over and under their charge, but “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
[111] In the case of Lawless v. Asuro, [2003] O.J. No. 2522 (S.C.J.) Fragomeni J. stated:
Once a child has reached the age of majority at law they are expected to become financially independent. However, if they are precluded from doing so or achieving this level of independence because of illness or disability the obligation of a parent to support the child would continue. This obligation will also continue if the child is unable to work because they are at school.
[112] The definition of “child of the marriage” in the Divorce Act is not as restrictive as the provision delineating the circumstances under which a parent may have an obligation to provide support for his or her unmarried child who is not a minor at s. 31 of the Family Law Act, R.S.O. 1990, c. F. 3. This provision requires such a child to be enrolled in a full time program of education to be entitled to support.
[113] As stated, the parties are agreed that Kayleigh withdrew from her program of study after the fall 2016 semester due to addiction and mental health issues which she was facing. It was not a case of Kayleigh making a decision not to pursue further studies to pursue work or other endeavours. There is no evidence that Kayleigh had abandoned her plan to pursue post-secondary education. In my view she remained a “child of the marriage” pursuant to s. 2 of the Divorce Act and was therefore entitled to support.
(b) Should income be imputed to the applicant during the time he was unemployed following separation?
[114] As indicated, the applicant lost his job in the UAE in April 2010 and did not obtain employment again until 2012, approximately one year following his return to Canada.
[115] The respondent submits that the applicant’s refusal to accept a job offer in Kuwait, while in the UAE, and to return to Canada was unreasonable, and that therefore income should be imputed to him for all or a portion of the time following separation that he was unemployed.
[116] S. 19(1) of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which may include the non-exhaustive list of circumstances set forth at sub-paragraphs (a) to (i).
[117] In the case of Duffy v. Duffy 2009 NLCA 48 the Newfoundland and Labrador Court of Appeal summarized the relevant principles to be applied in considering the imputation of income at para 35, as follows:
The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.
A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children.
A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control.
The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision.
A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.
[118] I am unable to find that the applicant’s decision not to accept an offer of employment in Kuwait because of the perceived danger associated with it, nor his decision to return with the children to Canada in June 2011, were unreasonable. The respondent does not dispute that in the period leading up to June 2011 the children expressed a desire to return to Canada and that she was supportive of that, or at least was not opposed to it. She relinquished her sponsorship of with children to be in the UAE in order to facilitate their return to Canada.
[119] Nor do I find that the applicant was intentionally unemployed following his return to Canada. There is no evidence to support this. The applicant believed that he could resume his previous position with the City of Kitchener upon his return from the UAE however, in hindsight, this expectation turned out to have been misplaced. Given the prevailing economic conditions, it took the applicant until 2012 to secure new employment. There was no evidence that during this time the applicant was pursuing unrealistic or unproductive career aspirations or interests.
[120] Under the circumstances I decline to impute income to the applicant, but rather his child and spousal support are to be based on his actual reported income determined in accordance with s. 16 of the Child Support Guidelines.
B – Spousal Support
(c) Is the Applicant entitled to spousal support, and if so, on what basis?
[121] Subsection 15.2(6) of the Divorce Act sets forth the objectives of an order for spousal support as follows:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) to 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) to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) to insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[122] It is well established that there are three grounds for entitlement to spousal support namely, (1) compensatory support, which primarily relates to the first two objectives set forth at sub-section 15.2(6) of the Divorce Act; (2) non-compensatory support which primarily relates to the third and fourth objectives; and (3) contractual support [see Chutter v. Chutter, 2008 BCCA 507, [2008] B.C.J. No. 2398 (B.C. C.A.) at para. 47, citing Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.) at paras. 15 and 41-42].
[123] It is also well-established that there is no single basis of support or objective under the Divorce Act that supersedes the other and that many claims involve aspects of both compensatory and non-compensatory principles. The court is not called upon to decide on one basis of support to the exclusion of the other but rather "to apply relevant factors and strike the balance that best achieves justice in the particular case" [see Chutter at para. 49 quoting Bracklow at para. 32].
[124] The Ontario Court of Appeal in the case of Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.) at para. 69, footnote 7, cited the Spousal Support Advisory Guidelines (SSAGs) in explaining the concept of economic merger at para 7.2 as supporting an "entitlement to non-compensatory support, which arises whenever a lower income spouse experiences a significant drop in standard of living after marriage breakdown as a result of loss of access to the other spouse's income, with amount and duration resolved by an individual judge's sense of fairness."
[125] A useful analytical categorization of the types of compensatory support was laid out by A.A. Mamo in his Annual Review of Family Law, 2007 (Toronto: Thomson Carswell, 2007) at p. 331, quoted by Justice G.A. Campbell in the case of Beneteau v. Young, [2009] O.J. No. 3244 (Ont. S.C.J.) at para. 194 as follows:
i. non-specific compensatory support (where a spouse's ability to achieve self-sufficiency was comprised by career/job dislocation for the family); Walsh v. Walsh, 2006 CarswellNB 582 (Q.B.);
ii. specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage) Spurgeon v. Spurgeon (2001), 2001 CanLII 38738 (ON SCDC), 15 R.F.L. (5th) 440 (Ont. Div. Ct.);
iii. specific calculable advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse): Caratun v. Caratun (1992), 1992 CanLII 7715 (ON CA), 42 R.F.L. (3d) 113 (Ont. C.A.).
[126] Although, as indicated above, the court should not decide on one basis of support to the exclusion of the other but should "apply relevant factors and strike the balance that that best achieve justice in the particular case" (see Chutter at para. 49), the jurisprudence does indicate that the characterization of the type of support as either compensatory or non-compensatory may have an impact on the duration of the support order. Professor Rollie Thompson in his paper "Fifteen Spousal Support Errors, and Fifteen "Corrections": Schulich School of Law, Dalhousie University, pages 6-7 noted that Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C.A.) confirmed that time limits can be imposed, even in a longish marriage, where support is non-compensatory in nature, whereas Cassidy indicates that a compensatory support order, especially after a long marriage, starts from a premise of "indefinite" support.
[127] The applicant in the case at bar claims spousal support from the respondent on both a compensatory basis and a non-compensatory basis. He says that he has entitlement on a compensatory basis on two grounds – first that he subordinated his career at the City of Kitchener in order to permit the respondent to pursue her international teaching career in the UAE, and second, that following separation and his return to Canada, he was the primary care giver for both children until the respondent returned in 2016 and Kayleigh began residing with her while she attended University.
[128] In my view neither of the bases relied upon by the applicant support his claim for compensatory support.
[129] The evidence was that the parties’ decision to move to the UAE was fully consensual and was perceived by the applicant as financially and experientially beneficial to both him and the family. The applicant acknowledged on cross-examination that both parties mutually explored various opportunities for a cross-cultural experience and settled on the UAE because the applicant was confident, given his pipeline experience with the City of Kitchener, that he would be able to find a job there. He also acknowledged that he believed that he had received assurances that his job at the City of Kitchener would be available to him upon his return after two years. He was looking forward to the opportunity of making more money in the UAE than he ever did in Canada. He earned the equivalent of $85,000 CAD, plus additional economic benefits, tax-free, while working in the UAE. When the two-year term of the respondent’s leave from her position with the Waterloo Board was ending it was the applicant who was desirous of remaining in the UAE, which required that the respondent resign from her secure position with the Waterloo Board.
[130] The fact that the applicant may have been the primary care-giver for the children for the period after separation does not support a claim for spousal support on a compensatory basis. As indicated above, the focus in relation to compensatory spousal support is on advantages conferred and disadvantages suffered by the respective parties during the marriage, which an award of spousal support on a compensatory basis may address.
[131] I find that following separation, the applicant did have an entitlement to spousal support from the respondent on a non-compensatory basis. As the lower income spouse, he did experience a significant drop in standard of living after the breakdown of the marriage as a result of loss of access to the respondent’s income, at least until he became employed in 2012.
(d) Duration of the Respondent’s Spousal Support Obligation
[132] The applicant acknowledges that spousal support payable to him by the respondent should cease in August 2015 when he purchased a home with his new partner and they commenced cohabiting, but submits that there is no legitimate reason to terminate spousal support prior to that time.
[133] As indicated above, time limits can be imposed, even in a longish marriage, where support is non-compensatory in nature.
[134] Section 15.2(3) of the Divorce Act provides that the court may make a spousal support order for a definite or indefinite period. The Ontario Court of Appeal in Fisher v. Fisher 2008 ONCA 11 ordered spousal support for a total of approximately 7 years, with a step-down in the monthly support payment at about the halfway mark in a case involving a 19 year marriage. Lang, J.A. agreed with the trial judge's decision to limit the duration of support based upon factors such as the applicant's relative youth, good health, the absence of dependents, lack of the debt and her past and present the work record, ethics and opportunities. At paragraph 88 of Fisher, Justice Lang observed that the provision of a reasonable transition period following the breakdown of the marriage (in that case for a seven year period) complied with the spousal support objective of recognizing the applicant's economic disadvantage arising from the marriage and its breakdown, while also encouraging the applicant to complete a transition to self-sufficiency.
[135] In the case of Farrar v. Farrar (2003), 2003 CanLII 15943 (ON CA), 32 R.F.L. (5th) 35 (Ont. C.A.) the Court of Appeal held that the mere fact that the respondent spouse's income was double that of the applicant spouse was not a sufficient reason to justify an award of spousal support in the absence of evidence regarding the applicant's needs. The annotation in the report of the Farrar case by Professor James McLeod is particularly instructive in this respect and has application to the present case. After noting that, in most cases, the fact that one spouse earns substantially less than the other will mean that that the lower-income spouse is financially dependent on the higher-income spouse to maintain his or her lifestyle, regardless of whether he or she the incurred economic disadvantage from the marriage or conferred an advantage on the higher-income spouse, Professor McLeod commented that "however, a dependent who is unable to prove some disadvantage incurred or benefit conferred probably will be restricted to time-limited transition support to ease his or her adjustment to economic independence."
[136] There was no evidence that, following the applicant becoming re-employed in 2012 and completion of the sale of the former matrimonial home in March 2013, the respondent, despite her greater annual income, enjoyed a higher lifestyle while residing in the UAE than did the applicant. Indeed the evidence was that the respondent was left with significant debt to manage following the applicant’s return to Ontario.
[137] In my view, in applying the principles in Fisher and Professor McLeod’s annotation to Farrar, the respondent’s obligation to pay child support should have a four (4) year duration in order to ease the applicant’s adjustment to economic independence and should therefore terminate in March 2015. Spousal support should be paid at the mid-range under the Spousal Support Advisory Guidelines (the “SSAGs”) from March 2011 to December 2012 and stepped down to the low-range from January 2013 to March 2015. As indicated, the applicant did not have a strong compensatory claim which might otherwise favour a support award in the higher end of the range. Commencing in 2013 the applicant’s needs were reduced through a solid base of employment income, thereby pushing the support award to the lower end of the range. See SSAGs at paragraphs 9.1 and 9.2. The remaining factors under Chapter 9 are of lesser importance in this case.
C- Determination of the respondent’s income for support purposes
[138] While the respondent was working for private schools in the UAE, in addition to her base salary paid in UAE Dirham (AED), she received a housing allowance, paid airfare home to Canada (usually twice a year) and a gratuity payable by the employer at the end of her teaching contract.
[139] The parties agreed that the value of the AED was at all relevant times tied to the U.S. dollar and was therefore subject to exchange rate fluctuations throughout the period for which support was to be paid by the respondent. The parties also agreed that, since the respondent’s earnings in the UAE were tax-free, it is necessary to gross them up to make her earning equivalent to earnings in Canada.
[140] While I accept that the value of the housing allowance received by the respondent as well as her gratuities are properly to be included in her income for support purposes, I do not agree with the applicant’s position that reimbursement of her flights home to Canada are properly included. These payments were simply reimbursements of travel expenses incurred by the respondent associated with the fact that she was a foreign worker in the UAE and should not be included in her income for support purposes.
[141] I agree with the respondent’s submission that the housing allowances paid by her employers for the provision of rental accommodation should not be subject to exchange rate adjustments in the same fashion as her salary. She received the same consistent value from the payments, namely the provision of accommodation, regardless of currency fluctuations and any fluctuations in the exchange rate on these payments did not affect her spending power or lifestyle in the UAE. I agree with the respondent’s position that the housing allowance should be deemed to be a consistent $1,400 CAD per month ($16,800.00 per year) for the entire period that the respondent was employed in the UAE following separation.
[142] The respondent testified that commencing in September 2017 she arranged for a couple of roommates to occupy spare bedrooms in her rental apartment at various times to offset some of the cost of the rent for the apartment she shared with Kayleigh. She adjusted her Financial Statement to reduce the amount shown for rent to reflect the contribution of these individuals towards the costs of the rent. She did not report these payments for tax purposes, as she did not own the residence and considered them to be a way to manage the cost of rent and not income.
[143] I do not accept the submission of the applicant that the payments made by these “room-mates” towards the cost of the rental apartment should be considered income of the respondent for child support purposes. No authority was cited for this proposition and I know of no principled basis why these payments should be considered to be income for support purposes.
D- Calculation of respondent’s child support obligations
[144] Counsel for the respondent filed a chart (with accompanying DivorceMate printouts) during closing submissions setting forth her UAE income in UED from 2011 to 2016 (based upon base salary, housing allowance and gratuity, the equivalent expressed in Canadian dollars, not providing for fluctuations in the exchange rate on her housing allowance, her income earned in Ontario 2016 to 2017, her income for child support under the Child Support Guidelines for the years 2011 to 2017, and the amounts of child support actually paid by the respondent from 2011 to 2017, agreed by the parties to be $89,846.85.
[145] The notes to the respondent’s chart set forth the basis for the calculations, determined in accordance to where the children were residing and their entitlement to support. The notes indicated an obligation on the respondent to pay child support for two children for 3 months in 2011, for the entire year for 2012, 2013, and 2014, for six months in 2015, for one child in 2015 after Kayleigh finished high school in June of that year and worked, for 8 months for one child and for September to December 2016 as an offset while Kayleigh was with the respondent, and for 2017 as an offset based upon one child residing with each party.
[146] The amounts payable were based on the 2006 Child Support Guideline tables for 2011 and the 2011 Guideline tables for the years 2012 to 2017.
[147] The applicant did not take issue with the arithmetical calculations in the respondent’s chart.
[148] The information in the respondent’s chart may be summarized as follows:
Year
Guideline Income for Support
Table Amount Payable
Amounts Actually Paid
2011
$97,578
$1,374/mo. x 3 mos. = $4,122
$4,452
2012
$107,038
$1,501/mo. x 12 mos. = $18,012
$8,662
2013
$110,372
$1,542/mo. x 12 mos. = $18,504
$10,982
2014
$118,603
$1,643/mo. x 12 mos. = $19,716
$12,120
2015
$137,983
$1,873/mo. x 6 mos. = $11,238 $1,174/mo. x 6 mos. = $7,044 (total $18, 282)
$4,545
2016
$171,394 (including gratuity)
$1,421/mo. x 8 mos = $11,368 $947/mo. x 4 mos = $3,788
$5,983
2017
$99,326 (Applicant) $45,274 (respondent)
$484/mo. x 12 months = $5,808
$856 plus $31,098.21 garnished end of 2017 + 2016 tax refund of $2,355.02 Total $34,309.23
Total payable = $99,600
Total agreed paid to end of 2017 = $89,846.85
Total underpayment of child support to end of 2017
$9,753.15
[149] The respondent was responsible for payment of ongoing child support on an offset basis for the period commencing January 1, 2018 in the sum of $497 totalling $5,964 for 2018. This amount is based upon the respondent’s 2017 annual income of $103,207.00 and the applicant’s 2017 annual income of $45,233.89.
[150] I would not reduce the obligation of the applicant to pay child support for Kayleigh in recognition that she is off school during the summer months and is working during that time and also working part-time during the school year. Neither party advanced a claim from the other for contribution towards Kayleigh’s post-secondary expenses, as exemplified by the draft Divorce Order submitted jointly by the parties after the trial which made no mention of s. 7 expenses. Kayleigh’s earnings during the school year and during summer breaks may be assumed to be fully utilized for her post-secondary expenses, thereby requiring the respondent’s continuing support of her during the summer breaks.
E - Calculation of respondent’s spousal support obligations
[151] The following is the calculation of the respondent’s spousal support obligation from April 2011 to March, 2015 (four years), in accordance with the foregoing:
Year
Respondent’s Income for Support Purpose
Applicant’s Income for Support Purposes
Amount Payable
Notes
2011
$97,578
0
$1,325/mo. x 12 = $15,900
SSAGs Mid-range 12 mo.
2012
$107,038
$20,271
$852/mo. x 12 = $10,224
SSAGs Mid-range 12 mo.
2013
$110,372
$39,139
$275/mo. x 12 mo. = $3,300
SSAGs low-range 12 mo.
2014
$118,603
$45,032
$952/mo. x 12 mo. = $11,424
SSAGs low range 12 mo.
2015
$137,983
$47,729
$1,096/mo. x 3 mo. = $3,288
SSAGs low range 3 mo.
Total
$44,136
Offset amount owing by respondent
[152] Based upon the foregoing, the net amount to be paid by the respondent to the applicant after offsetting the applicant’s obligation to make an equalization payment to her, including post-separation adjustments, against her obligation to pay arrears of child and spousal support is the sum of $34,996.84 as follows:
Underpayment of child support to December 31, 2017 $ 9,753.15
Underpayment of child support for 2018 5,964.00
Spousal support arrears 44,136.00
Less equalization payment by Applicant (24,856.31)
$34,996.84
In my view, an order for the payment of interest on the amounts payable by the applicant and the respondent respectively is not warranted.
Disposition
[153] On the basis of the foregoing, it is ordered on a final basis as follows:
The applicant Steven Henry Christmann and the respondent Laura May Christmann who were married at St. Lucia, West Indies on March 17, 1995 be divorced and that the divorce taken effect 31 days from the date of this Order.
There shall be no Order as to the custody and access for the child, Noah Matthias Christmann, born January 12, 2001 (hereafter “Noah”).
Commencing January 1, 2019, the mother, Laura May Christmann, shall pay ongoing monthly child support to the father, Steven Henry Christmann, for the child, namely Noah Matthias Christmann, born January 12, 2001 in accordance with her annual income of $103,207 and pursuant to the Child Support Guidelines, in the amount of $905 per month.
Commencing January 1, 2019 the father, Steven Henry Christmann, shall pay ongoing monthly child support to the mother, Laura May Christmann, for the child, namely Kayleigh May Christmann, born February 7, 1997, in accordance with his annual income of $45,233.89 and pursuant to the Child Support Guidelines, in the amount of $408 per month.
A Support Deduction Order shall issue for the amount to be paid by the respondent/mother to the applicant/father in respect of child support on an offset basis pursuant to paragraphs 3 and 4 above.
The respondent shall pay retroactive child support arrears to the applicant from the date of separation to December 31, 2018 in the sum of $15,717.15.
The respondent shall pay retroactive spousal support to the applicant for the period from March 10, 2011 to March 1, 2015 in the sum of $44,136.
The Applicant shall make a payment in the sum of $24,856.31 to the Respondent, inclusive of post-separation adjustments to equalize their net family property.
The equalization payment owed by the applicant to the respondent shall be set off against the respondent’s retroactive child and spousal support arrears owed to the applicant, with the net result that the respondent shall make a one-time payment in the net sum of $34,996.84 to the applicant to resolve all of the equalization and support issues determined in paragraphs 6, 7 and 8 above.
The said sum of $34,996.84 shall be paid within 120 days hereof.
The Respondent’s assets currently held and frozen pursuant to paragraph 1(f) and 1(g) of the Temporary Order of Justice Campbell dated December 31, 2012 by The Bank of Nova Scotia, and Investors Group shall be released to facilitate payment of the payment required above, with the Respondent to retain the balance thereof as her own property.
The Applicant shall forthwith return to the Respondent her dining room table and chairs brought into the marriage by her.
The parties shall cooperate to file a Quit Claim against the Florida timeshares on or before March 31, 2019. The Respondent will initiate the process and ensure follow through and the Applicant will cooperate. In the event that the Applicant wishes to retain the timeshare, he may do so, provided that he shall proceed to change title to the timeshare to his name only, at his own expense, on or before February 28, 2019. If the Applicant does not complete the title change and release the Respondent from all liability and ownership in the timeshare before this time, the Quit Claim shall proceed and be completed by March 31, 2019.
Until the obligation to pay child support is terminated in respect of any one or both of the said children, the party obligated to pay child support shall provide disclosure of his or her income for the immediately preceding year to the other party by means of his or her Notice of Assessment by June 30 in each year starting in 2019.
Costs
[154] The parties are strongly encouraged to agree upon costs. If the parties are unable to do so, they may file written submissions of no more than five pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 30 days. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th floor, Kitchener, Ontario, N2H 0A7. Each party may file written reply submissions of no more than two pages, double-spaced, within 7 days of receipt of the other party’s submissions If no submissions are received within 30 days, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad, J.
Released: January 22, 2019
COURT FILE NO.: 46176-12
DATE: 2019-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN HENRY CHRISTMANN
Applicant
– and –
LAURA MAY CHRISTMANN
Respondent
REASONS FOR JUDGMENT
D.A. Broad J.
Released: January 22, 2019