COURT FILE NO.: FS – 16-86653 DATE: 20190718

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Natalia Makeeva Ruslana Korytko for the Applicant Applicant

• and -

Andrey Makeev Galyna Pribytkova for the Respondent Respondent

HEARD: January 7,8,9,10,11,14,15,16,17 and January 28, 2019

REASONS FOR JUDGMENT

Tzimas J.

Introduction

[1] The Applicant, Natalia Makeeva, brought an Application against the Respondent, Andrey Makeev, for child support, s. 7 expenses, the sale of the matrimonial home, equalization, and various lump sum payments. For the purposes of determining child support, the Applicant asked the court to impute an income of at least $60,000. The Respondent brought his own claim for spousal support, he disputed the proposed imputation of his income, and he challenged the equalization calculations.

[2] The issues that present themselves in this case are:

a) What is the Respondent’s income for the purposes of determining child support obligations and possibly spousal support entitlement?

b) What is the Applicant’s income for the purposes of determining spousal support?

c) Is the Respondent entitled to spousal support and if so, how much?

d) What child support and s. 7 expenses would the Respondent have to pay on the basis of his income?

e) What is the equalization calculation for the parties’ net family property?

f) Should the matrimonial home be sold?

g) Should occupation rent be ordered?

[3] The parties agreed that the anchoring element to the application rested with the determination of the Respondent’s income. They both saw this as the threshold question that would then inform the determination of the Respondent’s child support obligations and any possible entitlement to spousal support. Equalization was the second subject for determination. Although both parties made references to the sale of the matrimonial home in their opening statements, ultimately neither made any submissions on that issue. It remains unclear if such a move was to be treated as contingent on the redetermination of the respective child and spousal support obligations, or whether the matrimonial home is to be sold in any event regardless of the outcome on support and equalization.

[4] For the reasons that follow, I come the following conclusions:

a) The Respondent’s income is imputed at $28,000 for the purposes of spousal and child support;

b) The Applicant’s income is imputed at $92,000 for the purposes of determining spousal support;

c) The Respondent is entitled to spousal support. Given the imputed incomes, their 15-year marriage, their respective financial positions, and their circumstances, as more particularly discussed below, I find that the Respondent is entitled to $905 per month in spousal support. A lump sum payment by the Applicant to the Respondent, if the parties decide to consider that option, would be the midpoint for the midrange entitlement of $168,253.

d) The Respondent has shall pay the sum of $428 per month on account of child support for his two daughters.

e) Section 7 expenses shall be shared on the basis of a 23 percent contribution by the Respondent and a 77 percent contribution by the Applicant. The expenses incurred to date have been reasonable.

f) Going forward, the Applicant shall give the Respondent at least 30 days’ notice of an intended s. 7 expense. The Respondent shall have 10 days to raise any questions, concerns, or objections. The parties shall work together to reconcile the past payments and determine the outstanding differences owing, if any.

g) If the Applicant fails to give the Respondent notice of the intended s. 7 expense, she will be liable to pay the full amount.

h) If the Respondent fails to raise any objections, questions, or concerns with respect to the proposed s. 7 expenses within the allotted 10 days, he shall be required to pay his share of the expense irrespective of any concerns he may have.

i) The final order will include a paragraph outlining the reconciliation of past payments by the parties as those relate to their various obligations concerning child and spousal support and s. 7 expenses. Such reconciliation shall be reflected in the final order. If the parties cannot agree, they shall submit their respective positions in writing, as outlined more particularly below.

j) The Applicant shall pay to the Respondent an equalization payment of $17,419.60.

k) The issue of the sale of the matrimonial home remains outstanding. If the parties reach an agreement, they may include the terms of such an agreement in the final order. If they are unable to agree, they may make written submissions, as I outlined more particularly below.

l) No order is made on account of the Respondent’s claim for occupancy rent.

Background Facts

[5] The following facts are not materially in dispute:

a) The Applicant and the Respondent were married on March 4, 2000, in Tuapse, Russia. The Applicant was 17 years old and the Respondent was 42 years old. Today, the Applicant is 36 and the Respondent is 61.

b) The Respondent left for Canada on March 16, 2000. The Applicant followed him in August 2000. The Applicant did not dispute that the Respondent came to Canada under a refugee program.

c) There are two children of the marriage: S.M., born in 2006, and A.M., born in 2011.

d) The parties separated on August 1, 2015. In the first year following the separation, the Respondent remained in the matrimonial home but the parties lived separately. In or about August 2016, the Respondent moved out of the matrimonial home.

e) Custody and access of the children was resolved by way of a consent Final Court Order dated February 28, 2018.

f) The parties also agreed to the separation of the issue of divorce from all other corollary relief.

g) The parties own the matrimonial home located at 511 Lana Terrace, Mississauga, Ontario. They agreed that they purchased the matrimonial home in December 2013. The home is a three bedroom semi-detached bungalow with a one-bedroom unit in the basement covering a total of 1100 square feet. They also agreed that its value on the date of separation was $560,000, and as of the time of the trial, it had appreciated to approximately $712,000.

h) At the time of their marriage, the Respondent owned a condominium in Russia together with his own mother (the “Tuapse Condo”). The parties agree that they lived there for the ten days following their marriage and before the Respondent left for Canada. There was disagreement between the parties as to whether the Applicant remained there until her arrival in Canada or whether she lived with her own parents in another town. In any event, this condominium was sold in March 2014. Thereafter, the Respondent transferred his share of the sale proceeds in the sum of US $45,000 to the parties’ joint bank account in Canada. Ultimately, the Respondent contributed that sum towards the purchase of an investment property in Toronto discussed more particularly in the next paragraph.

i) The parties also agreed that in 2014, they decided to purchase an investment condominium in the Bloor West neighbourhood of Toronto (the “Bloor Street Condo”). The purchase price was $308,400. They entered into the Agreement of Purchase and Sale prior to separation, but the purchase closed after the parties’ separation.

j) For the purposes of the down payment for the condo, the Respondent transferred US$45,000 (CDN$64,785) from Russia, which represented his share of the sale of a condo he owned with his mother in Russia. The down payment was made by December 2014, before the parties separated. The closing of the purchase occurred after the date of separation. The parties sold the property in June 2016 and the parties eventually agreed to share the net proceeds on a 50-50 percent basis.

k) The parties also agreed that in advance of both real property purchases, the Applicant took on a second part-time job so that she come up with the necessary funds for the respective down payments. The parties further agreed that for the purchase of the matrimonial home, the Respondent contributed funds from a spousal Registered Retirement Savings Plan (“RRSP”) that the Applicant had previously opened in his name. For the Bloor Street Condo, the Respondent’s only contribution was the funds he transferred from the sale of the condo in Russia.

l) On the subject of the Respondent’s education and employment history, the parties agreed that the Respondent completed courses affiliated with Novorossiysk Nautical School and qualified as a “First Class Master of a Vessel”. There was considerable disagreement in the evidence on the meaning and the associated skills of a graduate of a college program and the qualifications of a “Marine Engineer”. The Applicant and her counsel insisted on referring to the Respondent as an “Engineer”. The Respondent objected to that professional designation and gave an alternate explanation of his professional training, which I review below.

m) Once in Canada, the Respondent worked in construction. He also obtained a driver’s license classified as “AZ”, which permitted him to operate a truck. From approximately 2004 to 2008, the Respondent worked as a truck driver for Freeway Logistics and drove regularly to and from the state of Washington in the United States of America, transporting goods, including kitchen cabinets.

n) In 2008, the Respondent was charged with drinking and driving while in the state of Washington in the United States. Although he was permitted to return to Canada, he was required to return to Washington to face the charges. The Respondent did not do so. Eventually, the Respondent parted ways with his employer.

o) In the summer of 2008, following a 30-day course, the Respondent wrote an Electrician’s exam administered by the Ontario College of Trades and obtained an “Electrician’s license”. On that description, the Applicant and her counsel presented the Respondent as a fully licensed Master Electrician. Although the Respondent admitted that description in response to the Applicant’s Request to Admit, on the evidence before the court, it became evident that the Respondent was not a Master Electrician, but only a “Journeyman”. Specifically, on the basis of the Respondent’s testimony and the supporting documentation, it became evident that the Respondent obtained something much less than a Master Electrician’s license and his use of the term “Electrician” was casual and colloquial. I review this issue in substantial detail below.

p) After the Respondent obtained his Journeyman’s license, he worked for a company for a short period of time. Then he decided to work on his own, working both as an electrician and an unlicensed plumber.

q) Once he became self-employed, the Respondent worked primarily in cash and promoted his services within the Russian community of the Greater Toronto Area.

r) There was no disagreement that the Respondent’s declaration of his income for the years 2011 to 2015 was as follows:

2011: $1,316 2012: $1,649 2013: $837 2014: $1,200 2015: $8,089

s) Turning to the Applicant, once in Canada, she completed her high school studies and then proceeded to study nursing. She was in university on a full-time basis from 2004 to 2008. From 2009 to 2011, she studied at D’Youville University and obtained a Master Degree in Nursing. She became a registered nurse in 2011.

t) The Applicant’s mother, Ms. Liubova Nikitina, came to Canada on a number of occasions and stayed for extended periods of time. Although the Respondent initially disputed this, he eventually agreed that Ms. Nikitina came in 2008, 2011, 2012, and 2015. Ms. Nikitina did not attend at the trial and was not called to be a witness, even though the court learned that she was then in Toronto. Ultimately, the parties agreed that on all her visits, she lived at the matrimonial home and assisted the parties with the care of their daughters.

u) On October 28, 2013, the Applicant received a “Russian Federation State Certificate for Maternity (Family) Funds” after the birth of her second child. The parties agreed that this is a benefit extended to Russian citizens. The Applicant used that benefit to purchase an apartment in Russia. The Applicant holds a 1/3 share in the apartment for the benefit of the two daughters. The other 2/3 share is in the names of the two daughters. The property is located at 30 Rakhmaninova Street, Pritkubanskyi Intracity District Krasnodar, Russia (the “Krasnodar Condo”).

v) The Respondent agreed that on November 14, 2014, he executed a Waiver at the Russian Embassy in Toronto, whereby he waived his share in the property bought using the Maternity Family Funds.

Factual Findings and Analysis of the Issues in Dispute

[6] I turn to consider each of the issues in dispute and to make my findings.

[7] I am obliged to note right from the outset that neither party was very credible. Both sides contested the issues vigorously, with very little regard for the need to establish an adequate evidentiary foundation. Remarkably counsel for both parties tended to overstate the evidence were often imprecise with their articulation of the actual evidence. Some of these shortcomings could be attributed to inexperience and possibly some language difficulties. However, I was deeply concerned that counsel, at times, seemed to have only a passing acquaintance with the rules of evidence, they were generally dismissive of the need to establish an evidentiary foundation for their clients’ respective claims, and they were not always familiar with even some basic trial procedure requirements. These shortcomings appeared to have a profound impact on how counsel approached their client’s respective claims and I worry that they may have impacted the parties’ expectations on the probable trial outcome.

[8] Very reluctantly, I also find it necessary to express my astonishment over the Applicant’s closing submissions and in particular, her counsel’s repeated misstatement of the evidence just presented in court, her deliberate attempts to downplay the actual evidence, and going as far as to ignore the actual evidence. The most egregious overstatement related to the description of the Respondent as “a licensed Electrician”, when by the time of the closing submissions, the evidence made it clear that the Respondent was anything but a licensed Electrician. The persistent mischaracterization of the Respondent’s qualifications was very troubling and made it very difficult to trust any of the Applicant’s submissions.

[9] These difficulties compounded the substantial gaps in the evidence and made the court’s fact-finding process that much more challenging. On virtually every issue, the fact-finding process required extra effort to distinguish between the actual evidence before the court as distinct from the respective aspirations of what the parties would have liked the evidence to show.

[10] The Respondent’s counsel was relatively more disciplined and the closing submissions aligned with the evidence, more or less. However, here too, counsel advanced certain legal arguments without regard to the relative strength of the supporting evidence.

[11] With those overriding observations as my backdrop, I turn to the particular issues and my findings.

a) What is the Respondent’s income for the purposes of determining child support obligations and possibly spousal support entitlement?

i. Position of the Parties

[12] The Applicant submitted that the court could impute an income at a minimum of $60,000 but could go as high as $100,000. In support of that submission, counsel advanced the following arguments: a) the Respondent was not credible; b) he contradicted himself in the description of his various activities; c) he deliberately concealed his earnings; d) 90 percent of his earnings were in cash; e) he did not keep any credible financial records; f) he did not issue invoices for the electrical and the plumbing work that he did; g) he did not maintain any client list or records; and h) he totally misrepresented his earnings to the Canada Revenue Agency (“CRA”).

[13] Against those shortcomings, the Applicant’s counsel submitted that the Respondent had a very rich employment history such that an imputed income of as high as $100,000 could easily be justified. In Russia, he worked as an “Engineer Navigator” for 15 years. Then, for his first few years after arriving in Canada, he worked as a construction worker and a truck driver. Eventually he became an electrician and worked for himself as an assistant electrician, an electrician and an unlicensed plumber.

[14] The Applicant testified that the Respondent earned between $50,000 and $55,000 as a truck driver. She recalled that he deposited a cheque weekly in the approximate sum of $1,100. He was forced to quit that job when he was charged in the state of Washington for driving under the influence and could no longer drive to the United States. In her closing submissions, counsel was especially critical of the Respondent and argued that the Respondent’s evidence that he left trucking voluntarily was misleading and reflected his attempt to downplay the DUI charge.

[15] With respect to the Respondent’s activities as an electrician and his employment from 2009 to 2015, the Applicant testified that the Respondent would give her between $2,000 to $3,000 a month. The Applicant did not have any evidence to support that allegation. She agreed that she gave that estimate on the basis of her recollection of the Respondent telling her that he could easily earn $200 a day. Very remarkably, in the course of her testimony, the Applicant waivered over the precise estimate between $2,000 and $3,000 and at one point suggested that the Respondent gave her $2,000 and kept an additional sum for his own needs.

[16] The Applicant agreed that she and the Respondent filed joint income tax returns. She agreed that she was the one who met with the accountant for the preparation of their respective returns. She went as far as to confirm that the Respondent relied on her communications and interaction with the accountant to complete the income tax returns. That said, very remarkably, the Applicant also said that she never reviewed or questioned the information that the Respondent provided to the accountant on account of his earnings.

[17] With respect to the payment of the family’s monthly expenses and the payment of the credit cards, the Applicant confirmed that she took care of the majority of the bills, though she acknowledged that the Respondent made certain payments. Natalia also agreed that she was the only one to make deposits into the joint account and that apart from a business account for Navigator “M”, one of the Respondent’s companies, the Respondent did not have a separate or independent account in his own name. Ultimately, the Applicant agreed that she paid for all of the expenses incurred on the credit card, whether that related to the expenses of the family or the business advertising charges and travel charges related to the Respondent’s activities.

[18] On the subject of the matrimonial home and the investment property, the Applicant testified that she was obliged to take on a second job to build up savings for a down payment for both the matrimonial home and then for the Bloor Street Condo investment property. She eventually conceded that she was the one who consulted the financial advisor about setting up a spousal RRSP in the Respondent’s name so that they might then be able to qualify for a mortgage. She also conceded that the Respondent did not attend any meeting with the accountant and did have any active role in the setting up of the RRSP. Apart from the Respondent’s contribution of the sum of US$45,000 (CDN$64,785), which he transferred from Russia, the Applicant agreed that the down payment contributions for the matrimonial home and the investment property came from her own earnings from her second job.

[19] Turning to the Respondent’s evidence, he reviewed his education and employment history, his earnings, and the types of positions he held over the years. He explained that in Russia, following high school, he attended a “Navigation College” and he obtained a diploma called “Engineer Navigator”. The specific title of his diploma was “Diploma of Third Class Navigator Mechanic”. The Respondent explained that the designation meant that he was qualified as a third‑class mechanic. His duties enabled him to undertake the tasks of an “electrical mechanic”, which he described as working both as an electrician and a mechanic. He agreed that he navigated boats for 15 years and that he worked as a boat captain of a small tour boat on the Black Sea for about a year. At the same time, the Respondent also said that he was not promoted beyond the level of a 2nd assistant.

[20] The Respondent said that he came to Canada on or about March 17, 2000. He lived in a shelter for a short while. He began to work in construction. Between 2003 and 2004 he obtained a special driver’s license, the “AZ license” that permitted him to drive a truck. In 2004 he started working for a trucking company. In that position, in the period between 2004 to 2008, he would take deliveries out to California and he would be away from home from between 20 and 24 days at a time. He estimated his earnings to be $3,500 to $4,000 per month. He based that estimate on the fact that he got paid by the mile at 39 cents per mile and that a trip to California was about 9,000 miles.

[21] The Respondent admitted that in 2008 while in California, he was charged for driving under the influence. Although the state authorities permitted him to drive away and return to Canada, the Respondent never returned to the United States to face the charges. The Respondent admitted that in the spring of 2008, following the DUI charges, he resigned from the trucking company. He denied that the resignation was connected to the criminal charges in the United States, though he agreed that the charges limited the trips that he could take within Canada.

[22] The Respondent explained that in any event, he had wanted to quit that job for some time because he was finding it very difficult and he was suffering from haemorrhoids. But he could not quit the job until the Applicant completed her studies and started to work. Consistent with that imperative, the Respondent explained that he quit his job as a truck driver as soon as the Applicant graduated and obtained her nursing degree.

[23] The Respondent testified that in May 2008, he took a 30-day electrician’s course and took an exam that was administered by the Ontario College of Trades. He explained that the course was offered by Russian-speaking instructors who also provided them with the answers to a range of possible questions that might be included on the exam. He further explained that at the conclusion of this course, he obtained a certificate in “Electrician Construction and Maintenance”.

[24] The trade name on the license stated “Electrician – Construction and Maintenance”. His membership class stated “Journeypersons Class”. The Respondent further explained that prior to obtaining this license, he had started a job with an electrical company and he was paid $12 an hour. After he obtained his license, his salary was raised by 50 cents to $12.50 an hour. With respect to his working hours, the Respondent estimated that he worked nine hours a day, five days a week, as well as a half-day on Saturday. He said he was paid by cheque.

[25] In either the fall of 2008 or early in 2009, the Respondent explained that he and a friend decided to go out on their own and work for themselves. His friend persuaded him that he would do better if he were self-employed. In that position, he estimated that his electrical projects did not exceed five percent of his earnings. Most of his work related to plumbing projects, which he undertook without being a licensed plumber.

[26] With respect to the nature of his projects and assignments, the Respondent explained that most of his work was piecework. He advertised in the Russian community newspapers in the Greater Toronto Area, he spent about $200 a month for advertising, and he serviced primarily older customers who needed assistance with small household tasks. On the subject of invoices, although the Respondent said he would issue invoices where those were requested, typically 85 to 90 percent of his customers did not require an invoice.

[27] In the period from 2010 to 2015, the Respondent said that his hours were reduced to four to five hours a day, three to four days a week. He explained that he had to reduce his hours to accommodate the drop-off and pick-up of his daughters. As between himself and the Applicant, he explained that his job offered greater flexibility and enabled him to care for his daughters and bring them to daycare. Although he did not deny that both the Applicant and his mother-in-law also participated in the drop-off and pick-up activities, he said that he had primary responsibility.

[28] On the subject of his income tax returns, the Respondent said that until 2015, Natalia looked after all of his accounting, his records, and his income tax returns. He said that he kept records from 2013 onwards and that he turned those records over to his lawyer. He denied that he only recorded his earnings beginning in 2016.

[29] For the years of 2016 and 2017, the Respondent summarized his earnings as follows:

2016: Gross Income: $22,820.00 Net Income: $12,264.00 Business Expenses: $8,748.26

2017: Gross Income: $21,340.00 Net Income: $11,423.00 Business Income: $7,752.89

[30] The Respondent was asked specifically about one invoice that suggested earnings of $8,000 just on one project. He described that sum as a one-off project that his friend secured. He explained that his own compensation on that project was limited to $2,000 and that $5,000 was paid to his partner. The sum of $920 represented the Harmonized Sales Tax (HST) charged to the job. The Respondent also explained that he deposited $1,000 into his account in November 2016 and the remaining balance in December 2016.

[31] With respect to the invoices he issued, the Respondent confirmed that he invoiced the following total sums: $4,757 in 2013; $420.60 in 2014; $8,586 in 2016; and $420 in 2017.

[32] The Respondent was challenged extensively on his ability to speak English. He responded that he learned some English in Russia in his college studies, though he explained that the vocabulary was focused on the tasks related to his navigation tasks. He explained that he understood some English but that he was not fluent and he was unable to function professionally in English.

[33] On the subject of employment applications, the Respondent gave some examples of employers where he submitted an application, though those examples were limited.

[34] In addition to the Respondent’s testimony, the court heard from an electrical estimator, Marcel Svaricek; his partner, Edward Krets, a statistician with a specialization in immigrants in the Canadian economy; Derrick Thomas; and a business valuator, Douglas Craig. Based on the Home Depot statements that recorded the supplies that the Respondent bought for his various projects, Mr. Svaricek estimated that the Respondent’s electrical projects did not exceed 33 hours in 2014, 45 hours in 2015, and 3.53 hours in 2016. The Respondent explained that he would purchase all of the supplies on the customers’ behalf and then he would get reimbursed.

[35] Mr. Krets confirmed that the “$8,000” project was his own customer and that the Respondent’s involvement in the job represented only a fraction of the total work.

[36] Mr. Thomas was called to talk about employment prospects and trends for immigrants to Canada. His overriding opinion was that immigrants who work in a non-official language only earn half as much as those who work in an official language. He also concluded that there is a higher rate of self-employment for immigrants who work only in a non-official language. He added that in such instances, the self-employment is precarious and the market is limited. To come to these conclusions, Mr. Thomas explained that his modeling took into account 17 variables. He conceded, however, that there are certain niches of expertise where language will not be very critical. He also admitted that though language is important, it was not as important in the context of manual labour.

[37] Mr. Craig, an accountant, conducted a valuation of the Respondent’s business activities. Although he acknowledged that the Respondent’s limited records made his task a challenging one, he concluded that his income for the years 2015 through to 2017 was as follows: $8,089 in 2015; $13,347 in 2016; $12,492 in 2017; and $14,090 in 2018.

[38] Mr. Craig acknowledged that he could not verify the Respondent’s numbers and agreed that the Respondent could be earning more than what he declared. However, having regard for the Respondent’s lifestyle, his debt situation, the lack of any material assets other than an old automobile, and his limited personal expenses, Mr. Craig could not see anything to suggest that the Respondent was earning more than what he reported. Nothing in his lifestyle suggested hidden earnings.

[39] With respect to the copies of the invoices that the Respondent produced and his suggestion that only 10 percent of his customers requested them, Mr. Craig did not believe that he could extrapolate anything about the 90 percent earnings because the invoices were too sporadic. Mr. Craig added that the Respondent did not have any commercial goodwill and that his equipment was limited to screwdrivers, handsaws, hammers, and a drill. Ultimately, Mr. Craig could not see anything to suggest that the Respondent earned anything greater than what he reported and certainly not greater than $30,000.

ii. Findings of Fact and Analysis

[40] In order to make my findings with respect to child and spousal support, I accept both parties’ contentions that the determination of the Respondent’s income is a threshold issue. The task before me is to make a finding, if I can, of the Respondent’s actual income, or alternatively to impute his income on the basis of the evidence before me.

[41] This task is especially challenging because neither side offered sufficient evidence to support their respective positions. The Applicant grossly overstated the Respondent’s earning capacity while the Respondent understated it at least to some measure. Contrary to the Applicant’s encouragement to prefer her evidence over the Respondent’s and impute an income of at least $60,000, her evidence did not permit me to come to such a finding.

[42] At the same time, the deficiencies in the Respondent’s evidence made his own contentions suspect such that I could not accept his evidence in its entirety to agree that his recorded income reflected his actual earnings. His evidence was somewhat credible but his records were unreliable.

[43] Before I delve into the particular records, it is important to note that the overriding difficulty with the determination of the Respondent’s income rested with the way that both parties chose to describe the Respondent’s qualifications, his abilities, and by extension, the nature of his earning capacity.

[44] Both parties bandied about the description of the Respondent as an “electrician” without regard for his actual qualifications or his ability to work as an electrician. They both blurred the reality of the Respondent’s actual qualifications and could have lead someone to believe that the Respondent was a fully licensed Master Electrician. But nothing could be further from the truth.

[45] In a nutshell, even though both counsel spoke colloquially of the Respondent as an electrician, creating the impression that he was licensed as a Master Electrician, both sides also admitted that the Respondent never obtained a Master Electrician license.

[46] In actual fact, the evidence before the court was that following a 30-day course, the Respondent obtained a certificate in “Electrician Construction and Maintenance” and the membership class stated “Journeyperson’s class.” In recognition of that accomplishment, his employer increased his wage from $12 an hour as an unlicensed electrician to only $12.50 an hour. On the basis of nine-hour days, five and a half days per week, that would result in an annual salary of approximately $35,000. It stands to reason that if the Respondent had obtained a Master Electrician license, he ought to have received a far greater increase in his hourly rate. On the evidence before the court, the Respondent never obtained such a license and never worked as a Master Electrician. Nor could he have ever worked as such because there was no evidence that he had any such qualifications.

[47] This finding explains why the Respondent would turn to very small electrical jobs such as changing plugs and minor electrical assistance to senior citizens in his community and not undertake something more ambitious and substantial. It also explains why he would turn to undertaking handyman-type work related to plumbing projects. And here, too, his projects were limited to work as an unlicensed plumber. Nothing more and nothing less. The reality is that on the basis of the evidence before me, the better description for the Respondent’s qualifications would be that of a handyman with some experience doing electrical work and some plumbing.

[48] I cannot overstress the significance of this finding. I could impute an income in the Applicant’s proposed range of $60,000 to $100,000 if the Respondent had a Master Electrician license and worked as such. Even with the limited evidence before me, I could take some judicial notice that Master Electricians can make very lucrative earnings and that it is often the case that they are self-employed and do not necessarily declare all of their earnings.

[49] However, on the evidence before me, the Respondent is not a Master Electrician and he never was a Master Electrician. Right from the outset, apart from the colloquial references to the Respondent’s occupation, there was absolutely no foundation to the submission that he was an Electrician or that the income to be imputed to him ought to correspond to the earning levels of such a professional designation.

[50] A secondary consideration is the lack of any evidence of the quality of the Respondent’s work product, the magnitude of his projects, the number of projects he would undertake, and related considerations. Keeping in mind that the Applicant has the onus to satisfy the court on the appropriate level of income imputation, there was no evidence touching on these issues. Regrettably, the Applicant’s evidence did not seem to go beyond the suggestion that as an Electrician who runs a cash business, he must be earning at the very least $50,000. But such a submission could not possibly allow for such a finding in the absence of any substantive evidence.

[51] I pause here to recognize that on an interim motion, the court imputed an income of $70,000 and ordered the Respondent to pay child support on the basis of that sum. Having reviewed that decision, it is evident that the court was grossly misled to believe that the Respondent was a Master Electrician. When Ricchetti J. attributed an hourly rate of $30 per hour for an electrician, it confirmed his understanding that the Respondent was a fully licensed electrician who could earn that hourly rate. I remain astonished by the Respondent’s failure to assist the court in such a manner as to allow for a contrary finding.

[52] As a trial judge, it is not my role to review the basis for interim decisions or question why the Respondent would not have clarified the nature of his designation or expertise. On its face, the Respondent’s own admission to being an electrician in response to the Applicant’s Request to Admit only compounded the confusion. Given the casual way that both counsel talked about electricians, without any ostensible sense of any distinction, I have to wonder if either or both counsel were actually alive to the very material distinction or whether in their overzealous pursuit of their respective positions they forgot to consider the distinction.

[53] Whatever the explanation, given the clear and unequivocal evidence before this court that the Respondent is not a Master Electrician, that he never obtained a license as a Master Electrician, that he only ever had a license as a journeyman, that he never undertook any work as a Master Electrician, and that he never earned an hourly wage of $30, I am not bound by the interim ruling or any implication that the Respondent was a fully licensed electrician. The Respondent is not and never was a fully licensed electrician that would have warranted any income imputation at such a high level. I will go further to conclude that in the face of the actual evidence before me, that interim order must now be adjusted to account for my actual findings.

[54] Turning to the additional evidence at trial, insofar as the Applicant’s further suggestion that the Respondent is a Russian-trained engineer is concerned, that represented nothing more than an attempt to confuse, if not blatantly mislead, the court, or alternatively, to overstate the Respondent’s professional training. The Applicant took the Respondent to his formal documentation but she failed to lead any evidence to suggest that there was some equivalency or some recognition of the diploma that the Respondent obtained – from what would appear to be a Russian College connected to the military – by either the Order of Engineers here in Ontario, the Ministry of Education, or any other entity that could verify or confirm such a relationship. In the absence of such evidence, I can only conclude that the questioning of the Respondent on this point was designed to create a superficial but unfounded impression of the Respondent’s training and abilities.

[55] My finding on the nature and extent of the Respondent’s actual qualifications and the limitations on his income-earning capacity is verified by the balance of the evidence before me. For starters, the increase to the Respondent’s hourly rate from $12 to $12.50 following his licensing as a journeyman is consistent with the finding that the Respondent did not obtain a Master Electrician license. Had he obtained such a license, he would have received a far greater increase in his hourly rate.

[56] In the same vein, on the Applicant’s own evidence, if the Respondent were giving her $2,000 monthly and keeping $1,000 for himself, and if he were receiving a significant portion of his compensation in cash, then he would not have been earning more than $36,000 a year.

[57] The further suggestion by the Applicant that maybe the Respondent retained $1,000 for his own expenses was not based on any evidence. On the Applicant’s own evidence, the Respondent did not have his own bank account during the marriage. The Applicant was the one who managed all the bills and payments, including those related to the Respondent’s business expenses. She was also the one to supervise the income tax filings and arrange for a spousal RRSP so that they would qualify for investment financing.

[58] So, on the Applicant’s own evidence, the court is left with a number of questions. Where and on what did the Respondent spend the money he allegedly kept for himself? Where did he deposit his share of his earnings, which would come to $12,000 per year? Where was the evidence that he splurged on himself or otherwise spent his share of the money? There was no evidence to answer any of these questions.

[59] As for the Respondent’s earning capacity, the Applicant admitted that the Respondent never earned more than $55,000, and that income was based on his previous work as a truck driver. There was no evidence that he ever earned such money as an electrician, journeyman or otherwise, or as an unlicensed plumber. Against that reality, the request that the court impute an income at anywhere between $60,000 and $100,000 is without any foundation.

[60] But perhaps the most telling piece of evidence on the Respondent’s earnings rests with the Applicant’s own evidence that when it came to buying a home, and then later the Bloor Street Condo investment property, she was the one to take on a second job to save for a down payment. She was also the one to manage the family finances, including the arrangement of a spousal RRSP for Respondent so that together they might qualify for a loan. If the Respondent were earning the kind of money that the Applicant would like the court to impute, why on earth would she have to resort to taking on a second job, especially at a time when she had two very young children? The only plausible explanation that flows from this evidentiary matrix is the finding that the Respondent was not earning sufficient funds to make a substantial contribution to the purchases. If he were earning more, then where did he spend those funds and why would the Applicant agree to take on a second job?

[61] The finding that the Respondent was not a Master Electrician and that he was not earning the income levels that such an individual would earn leaves the court with two findings and a subsequent question. The Respondent was never a Master Electrician and he never earned the kind of income that the Applicant is seeking to impute to him. That goes to the next questions: what were the Respondent’s earnings at the date of separation and just what would be an appropriate level of income to impute?

[62] Before I turn to consider the evidence and make my findings, it is prudent to review the legal principles that apply to the determination of a payor’s income for the purposes of determining child support. To begin with, the determination of income for the purposes of child support is governed by ss. 15 to 20 of the Federal Child Support Guidelines, SOR/97-175. Section 19 concerns the imputation of income and provides as follows:

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[63] The list is not exhaustive and it is not intended to circumscribe the court’s general discretion to impute income in other situations where it might be appropriate to do so. The only limitation on the court’s discretion rests with the requirement that there be some basis in the evidence for the amount that court chooses to impute: see Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1.

[64] The leading case on this subject is Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.). In that case, the Ontario Court of Appeal stated that imputing income is one method that the court may use to give effect to the joint and ongoing obligation of parents to support their children. To meet that obligation, parents must earn what they are capable of earning: at para. 32. If they fail to do so, they will be found to be intentionally under-employed. The applicable principles that emanate from Drygala, which were summarized recently in C.V. v. S.G., 2019 ONCJ 159, at para. 329, are the following:

1. One of the objectives of the Guidelines is to establish a fair amount of support for children to ensure they benefit from the financial means of both parents after separation;

2. It is not necessary to find a specific intent to evade child support obligations before income can be imputed. There is no requirement of bad faith;

3. There is a duty to seek employment. A parent cannot avoid child support by a "self-induced" reduction of income; and

4. If income is to be imputed, there must be a rational basis for the figure selected. The Court must consider what is reasonable in the circumstances, including the payor's age, education, experience, skills, health, the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations and the hourly rate that the parent could reasonably be expected to obtain.

[65] In Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, at para. 35, another leading case, the Newfoundland and Labrador Court of Appeal outlined eight general principles to consider in deciding whether to impute income:

1. The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

2. 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;

3. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

4. 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;

5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

6. 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;

7. 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; and

8. 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.

[66] Finally, the onus falls on the parent requesting that income be imputed to provide an evidentiary basis upon which a quantum can be imputed: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28; and Tillmanns v. Tillmanns, 2014 ONSC 6773, 53 R.F.L. (7th) 210, at para. 58.

[67] With these principles in mind, I turn to the evidence before me to make my findings. My first task is to determine whether I should exercise my discretion to impute the Respondent’s income or whether I can accept his evidence of his earnings. My second task, if I decide to exercise discretion, is to determine the appropriate income level that is reasonable, having regard for the Respondent’s circumstances, including his age, his education, his experience, his skills, his health, the availability of job opportunities, and the number of hours he might be expected to work, having regard for his various obligations.

[68] Starting then with the appropriateness of exercising my discretion to impute an income to the Respondent, I conclude that the circumstances are such that it is appropriate to do so. To begin with, the Respondent’s evidence concerning his hours of work, the kind of work he does and projects that he undertook, and his fees for that work were highly suspect, incongruent, and unreliable. His own evidence was difficult to follow. The Respondent suggested that once his daughters were born, he did not work more than four to five hours a day, five and a half days a week. But then when he was asked to break down his specific activities, it appeared that he exceeded those estimates. At the low end, he suggested that he only worked 20 hours a week. At the high end, those estimates were in the range of not more than 30 hours.

[69] The relationship between the Respondent’s gross income and his business expenses, as he reported it for the years 2015 to 2018, was also incongruent. It did not make any business sense that his expenses would almost equal his net earnings.

[70] While I could take some comfort from the accountant’s evidence that there was nothing in the Respondent’s records or his financial statements to suggest that he was earning anything greater than he reported or that he was concealing substantial funds from “under-the-table” earnings, I cannot ignore that fact that he too acknowledged that he was limited in his analysis by the Respondent’s limited financial record-keeping.

[71] I do reject the Applicant’s contention that the Respondent was no different than the applicant in Stetler v. Stetler, 2012 ONSC 4466, 25 R.F.L. (7th) 194, who ran a construction business and who was doing a good deal of under-the-table work for his business. There was no evidence before me that the Respondent’s activities were lucrative.

[72] I also reject the Applicant’s suggestion that I draw a negative inference regarding the Respondent’s credibility in light of his failure to report his actual earnings to the CRA. While I do not for a moment wish to be understood to be condoning the Respondent’s misrepresentations to the CRA, the reality is that on the evidence before me, the under-reporting suited the Applicant just fine as long as she and the Respondent were married. Her evidence that she never looked at the Respondent’s reporting practices and only delivered his paperwork to the accountant made no sense whatsoever, especially having regard to the fact that she managed all of the family finances, including the setting up of a spousal RRSP to allow them to qualify for a mortgage. Against that reality, it is rather audacious for the Applicant to come before this court and ask to impugn the Respondent’s credibility when in all likelihood, she fully appreciated the nature and extent of her husband’s cash business and went along with that arrangement prior to their separation.

[73] Finally, I reject the Applicant’s submission that I draw a negative inference from the Respondent’s failure to provide the court with full disclosure of his financial records. The difficulty with the Respondent was not that he had records that he withheld but rather that he did not keep adequate records. I am satisfied that the Respondent provided everything that he could and that in any event, since the Applicant managed all of their financial affairs and the parties shared a joint bank account until they separated, she could not very well say that she did not know the Respondent’s actual financial situation.

[74] The more serious difficulty with the Respondent’s reported financial situation and his business activities is that he has been under-employed and his efforts to succeed as a self-employed handyman with some electrical and plumbing skills did not materialize. While the Respondent did not strike me as either very bright or motivated to work, his explanations that he did not speak English very well, that his target market was older Russian immigrants who only required small household services, and that his efforts to find other employment were unsuccessful, were only partially satisfactory.

[75] The reality is that even if he was 57 at the time of separation and is now 61, the Respondent has two very young children for whom he has support obligations. He does not have the luxury to say that he can only earn a net income in the range of $12,000 to $17,000 when he has the skills to earn more. If he is unable to secure work as a handyman, he has an obligation to look for other work. At the very least, even if he is unable to obtain employment to secure the kinds of earnings he made as a truck driver some 12 years ago or so, on the evidence before me, he has sufficient skills to put himself in the earning range of $24,000 to $30,000, if not greater.

[76] In the absence of any reliable income figures from the Respondent, and in light of my finding that the Respondent has been under-employed for some years, my next task is to impute an income that is reasonable and founded on the evidence before me.

[77] In this regard, the Applicant’s submission that the imputation be at least $60,000 to $100,000 is both unrealistic and unsupported by the evidence before me. Leaving aside the severe limitations in the Respondent’s evidence, on the Applicant’s own evidence, it would not appear that the Respondent earned anything greater than $36,000 when he started working for the electrical company and when he then continued to work on his own. On an hourly wage of $12.50, working 9 hours a day, 5.5 days a week, the Respondent would have earned approximately $36,000 or so. If I accept the Applicant’s evidence that the Respondent would give her approximately $2,000 a month, which she then managed and out of which she paid the business expenses, the Respondent’s gross income would come remarkably close to his reported gross earnings for the years 2015 to 2017. If I go further to accept that in addition to the $2,000, the Respondent kept $1,000 for his own expenses, such a finding would result in a gross income of $36,000. Moreover, on the Applicant’s own evidence, the Respondent never earned more than $55,000 and that was when he worked as a truck driver. He stopped that employment in 2008.

[78] I also find it very significant that the Applicant agreed that the Respondent did not have any separate bank accounts and was not concealing or redirecting funds into any business accounts. Although the court heard evidence of a registered company name, I am satisfied that there was no evidence of any substantial activity by the Respondent. Rather, it would appear that as part of managing the family’s finances, it was the Applicant who pursued the registration of the company.

[79] Perhaps most significantly, the evidence concerning the limited extent of the Respondent’s earnings is verified by the evidence of both parties that when it came to buying a matrimonial home and then the Bloor Street Condo investment property, it was the Applicant who took on a second job and it was the Applicant who consulted a financial advisor to determine how best to position themselves to qualify for a mortgage. Rather astonishingly, the Respondent did not attend any of those planning meetings. He just signed off on whatever he was told to do when it came to setting up the spousal RRSP.

[80] If the Respondent were earning anywhere near the level of income that the Applicant would now like to impute to him, the Applicant would not have had to take on a second job and work as hard as she did to purchase both the matrimonial home and the investment property.

[81] Based on the foregoing analysis and on the totality of the evidence before me, I see no basis to impute an income higher than $36,000. The only remaining question to consider is how realistic such a figure would be, having regard for the Respondent’s circumstances.

[82] My short answer is that in the Respondent’s circumstances, that figure may be ambitious and that a more realistic income would be closer to $28,000.

[83] I come to this conclusion having regard for the Respondent’s age, his limited facility with the English language, and his limited experience as a handyman. He has not worked as a truck driver for over 12 years. His advanced age and the difficulties with his back would suggest that it would be very unrealistic for him to go back to such an activity. Given the types of small household projects that he undertook, I also do not see him working as a journeyman electrician on any substantial construction projects. I expect that employers would be reluctant to hire the Respondent if they have the option to hire younger and more skilled individuals.

[84] That said, if I take an entry level position at about $12.50 per hour, as the Respondent had when he first obtained his Journeypersons’ license, and if I attribute to him an 8‑hour day, at 5 days a week, having regard for the access arrangements that would keep him from working more hours, there is no reason why the Respondent could not earn a salary of $28,000. Conceivably, he could supplement such a salary with some additional self-employment, but for my purposes, an imputation of $28,000 is realistic and reasonable on the evidence before me.

[85] Accordingly, I find that it is appropriate to exercise my discretion to impute an income to the Respondent, and I impute that figure at $28,000.

b) At what level should the Applicant’s income be imputed?

[86] The parties could not agree on this issue. Rather incredibly, the Respondent insisted on imputing the Applicant’s income at $120,000, a sum that represented the average income that the Applicant earned from holding two jobs, which she did on a temporary basis, when in actual fact, her income from her full‑time job was approximately $92,000. The Respondent further took the position that the Applicant was deliberately under-employed and that she did that to undermine his claim for spousal support. He did so even though there was no dispute that the extra income that the Applicant earned was deposited to a separate account and was expressly earmarked for the parties’ investments.

[87] The Applicant disagreed and said that her full-time income of approximately $92,000 was what the court should find her income to be. She explained that she took on a second job in the years 2012 to 2013, and then from 2014 to 2016, expressly for the purpose of earning extra income and therefore saving a down payment, first for the purchase of the matrimonial home and then for the purchase of the Bloor Street Condo investment property. Her full-time position was at Inner City Health. Her part-time job was at William Osler and she did that on Saturdays. Remarkably, the Respondent agreed that the Applicant took on the additional job for the noted objectives.

[88] The Applicant agreed that she gave up the second job one month after the Respondent advanced his claim for spousal support. She also said that she found it necessary to spend more time with her daughters and to support their adjustment to their parents being separated.

[89] I find it quite remarkable and bold for the Respondent to be asking the court to impute his income to effectively as low as possible, to accept his explanations for his alleged inability to increase his earnings, to forgive his failure to keep appropriate business records, to deny that his efforts to improve his financial situation were feeble, but then to hold the Applicant to a completely different standard and to insist that she hold two jobs so that she might then have to pay him a higher spousal support. That is nothing short of being greedy.

[90] Having regard for the specific purposes that the Applicant took on the second job at William Osler, I see no foundation to the Respondent’s allegation that the Applicant is intentionally under-employed. Nor am I satisfied that there is any evidentiary foundation to engage my discretion to impute to the Applicant earnings of almost $30,000 greater than what she has been earning since 2016.

[91] For the purposes of determining the parties’ respective share of s. 7 expenses and spousal support, to which I will turn to next, even though in 2015 and 2016 she earned approximately $120,000, having regard for what she has been earning since and the circumstances under which she had the higher earnings, I impute her income at $92,000.

c) Is the Respondent entitled to spousal support, and if so, how much?

[92] The Respondent seeks spousal support on both a compensatory and non‑compensatory basis. He submitted that he supported the Applicant in her studies, he was the primary caregiver for the children while the Applicant pursued her education, he gave up career opportunities while the Applicant pursued her nursing degree and then her nurse practitioner’s degree, and he arranged his overall work schedule to be home for the children. While the Applicant was able to obtain economic advantages for herself, the Respondent submitted that he became the disadvantaged spouse.

[93] Separate and apart from compensatory considerations, the Respondent also submitted that after approximately 15 years of marriage and a comfortable standard of living that reflected their joint efforts, he stood to face economic hardship and has serious needs which he is unable to address on his own.

[94] The Applicant strenuously opposed any spousal support for the Respondent and denied that he has any needs whatsoever. That opposition was founded on the persistent, though grossly exaggerated and unfounded view, of the Respondent being a Master Electrician and running a lucrative business, the suggestion that he was deliberately failing to disclose his actual earnings, that he was deliberately under-employed, and that he did not forego any career opportunities and advancements. The Applicant also disputed the extent of the Respondent’s involvement and care of his two daughters and insisted that her own mother provided much of the support when she would come for extended periods of time from Russia.

[95] The claim advanced by the Respondent engages the consideration of two principal questions: entitlement and quantum. Although there were no submissions regarding a possible lump sum payment, it may be something the parties might wish to consider in light of my overall findings and the circumstances that permit the payment of a lump sum.

[96] Turning to the governing legal principles, entitlement to spousal support is informed by s. 15.2 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). That provision provides:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or 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 hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[97] Those sections are complemented by s. 33(9) of the Family Law Act, R.S.O. 1990, c. F.3, which provides:

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

[98] Subsection 15.2(6)(a)-(d) speaks in particular to four objectives that inform the “equitable sharing of the economic consequences of marriage or marriage breakdown”: see Moge v. Moge, [1992] 3 S.C.R. 813, at p. 864. They concern the recognition of the economic advantages and disadvantages to the spouses that result from the marriage breakdown as well as the apportionment of financial consequences, relief from economic hardship, and in so far as is practicable, the promotion of economic self-sufficiency for both spouses: at p. 860. A marriage is to be regarded as a joint endeavour. The longer the relationship, the greater the presumptive claim to equal standards of living upon its dissolution: at p. 870.

[99] In this instance, another useful case for consideration is Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, where the court reviewed the concepts of self‑sufficiency, economic hardship, and the economic advantages and disadvantages of the marriage or its breakdown. On the evidence before this court, of particular assistance is the court’s consideration of the meaning of self‑sufficiency. At para. 53, the court noted:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather self‑sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1 O.R. (3d) 1 (Ont. C.A.), at 27-28. Thus, a determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors. [Endnotes omitted.]

[100] With respect to the relevance of the standard of living as a measure of dependency in long-term marriages, Moge, at p. 870, is most instructive:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, the standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour. The longer the relationship endures, the closer the economic union, the greater the presumptive claim to equal standards of living upon its dissolution (see Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra at pp.174-175).

[101] It is also significant to recognize the extent of the court’s discretion to consider the particular facts and objectives of the legislation. I note that the Supreme Court remarked in Moge, at pp. 866-7:

The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieve equitable sharing of the economic consequences of marriage or marriage breakdown. This implies a broad approach with a view to recognizing and incorporating any significant features of the marriage or its termination which adversely affect the economic prospects of the disadvantaged spouse.

[102] In Zacharias v. Zacharias, 2015 BCCA 376, 80 B.C.L.R. (5th) 54, the court offered the following commentary, at paras. 26-27:

Compensatory entitlement will arise where as a result of the parties’ roles during the marriage, one spouse has suffered economic disadvantage or has conferred economic advantages on the other. Most often, such entitlement will arise where one spouse has sacrificed career opportunities in order to take on more of the family’s household or child-rearing responsibilities. Upon the dissolution of the marriage, the spouse who has given up opportunities may be entitled to spousal support, either to compensate for diminished earning capacity, or to share in the augmented earning capacity of the other spouse. The main goal of compensatory spousal support is to provide for an equitable sharing of the economic consequences of the marriage (see Moge v. Moge, [1992] 3 S.C.R. 813, at 858-66).

Non-compensatory support entitlement focuses on the needs of the spouses and on their respective means. It is based on the idea that spouses, by virtue of marriage, have some ongoing responsibility to care for one another. The degree to which non-compensatory principles will apply will depend on a close examination of not only the means and needs of the spouses but also the nature of the marital relationship and its duration (see Bracklow v. Bracklow, [1999] 1 S.C.R. 420, particularly at para. 53).

[103] The greatest challenge with the parties’ positions in this case rests with the fact that both staked out positions that were not supported by the evidence before the court. The Respondent’s counsel grossly exaggerated the Respondent’s contributions to the family and the extent to which he gave up career opportunities in favour of his wife. The Applicant’s opposition to any spousal support was grounded on nothing more than an unsupported description of an individual who was a fully qualified electrician running a lucrative business. Both sides exaggerated their respective positions and both sides ignored certain realities.

[104] To begin with, the evidence before me supports a finding that the Respondent supported the Applicant and enabled her to finish high school and then to pursue undergraduate and graduate studies in nursing. While I accept the Applicant’s evidence that she contributed to her support with various part-time jobs during her high school and undergraduate studies, and then pursued her graduate degree over a number of extended weekends, I doubt that she would have been able to complete those efforts successfully without the Respondent’s foundational support. She complemented the Respondent’s efforts, but it would be wrong to diminish or eclipse his substantial contribution, to say nothing of the fact that she may never have come to Canada without his initial support and his agreement to marry.

[105] Similarly, the nature of Respondent’s work as a self-employed individual meant that he had the flexibility to drop off his daughters at daycare and school and then pick them up as necessary. To deny that he contributed to the support of the family such that it allowed the Applicant to pursue her studies and then take on a second job is nothing short of being selfish, ungrateful, and greedy.

[106] Just as the Applicant’s contentions on this issue were dubious, the Respondent’s suggestion that he could have learned English but was prevented from doing so because he was supporting the Applicant and caring for his family made no sense. Similarly, the suggestion that the Respondent gave up career opportunities in favour of the Applicant’s activities is unfounded. There was no evidence that he attempted to register for any courses but could not do so as the schedule conflicted with the Applicant’s studies. Nor was there any indication that the Respondent was even interested in improving his situation. Moreover, in his first few years in Canada, when there were no children, nothing really impeded the Respondent from taking a language course if he so wished. What I deduced from what I heard from both parties was a Respondent who was complacent, with limited motivation, if not outright laziness, and possibly resigned to a life away from his homeland.

[107] With respect to career opportunities and career growth, the Respondent did the minimum he could. I have already said much about the nature of the Respondent’s electrician’s license. There was no evidence that the Respondent even had a desire to follow a full-training program that would include extensive coursework followed by an apprenticeship before he could be licensed as a Master Electrician. Not only did he not have such an inclination or disposition, but the training that he undertook for a Journeyperson’s classification was highly suspect. On the Respondent’s own evidence, he obtained his license to be a journeyman electrician by taking a 30-hour course given by a Russian instructor who also gave him and the other students the answers to the licensing exam. Against such facts, Nothing in the evidence can support a finding that the Respondent was obliged to give up career opportunities because of the family household or child-rearing responsibilities.

[108] That said, on the evidence before me, having regard for the very substantial differences in age and even the level of intelligence between the two parties, it is evident that it was more convenient and practical for the Respondent to take on a greater share of the household obligations so that the Applicant could capitalize on her education and then her employment to improve the family’s financial situation with the purchase of a matrimonial home and then the purchase of an investment property. Even if both the Applicant and her mother assisted with the family and the running of the household, there can be no doubt that the Respondent’s contribution was material and offered the Applicant at least some peace of mind so that she could pursue her professional activities.

[109] In terms of a compensatory entitlement, although the Respondent may not have foregone specific professional and career opportunities such that it diminished his earning capacity, he did enable and support the Applicant so that her earning capacity was augmented significantly to the benefit of the whole family unit. The Applicant willingly took on the second jobs to make extra money and she willingly managed the family’s finances. There was no evidence that in this time period she objected to this arrangement, or took issue with the Respondent’s limited aspirations or otherwise limited professional success.

[110] In addition, from the perspective of a non-compensatory spousal support award, the nature of the marital relationship is a significant factor that weighs in favour of the Respondent’s entitlement to at least some spousal support. On the evidence before me, I have no difficulty finding that the breakdown of the marriage has been detrimental to the Respondent’s financial well-being and his ability to be self-sufficient. It is very clear that he is struggling financially. The level of his debt obligations and his next-to-no assets underscore those difficulties. The Applicant may have wanted the Respondent to have a lucrative business, but there was just no evidence that the Respondent was such a successful business person.

[111] On this last point, I would add that although electricians are hard to find, expensive when they are found, and are good at what they do, nothing in the evidence revealed the Respondent to have those attributes. This should come as no surprise to the Applicant, particularly since their whole marital relationship reflected a very close symbiotic financial arrangement, anchored principally, even if not exclusively, onto the Applicant’s superior education and earning capacity. They agreed to that arrangement, they shared in those efforts, and the Respondent became dependent on the Applicant. It is only appropriate that they share in the resulting economic challenges that flow from the breakdown of the marriage. In the same vein, given the Respondent’s age and his less than ambitious professional disposition, I have no difficulty finding that the Respondent’s needs are such that he ought to be entitled to some spousal support.

[112] These findings bring me to the issue of quantum. As I already found above, for the purpose of determining spousal support, I have imputed the Respondent’s income at $28,000 and the Applicant’s income at $92,000. The DivorceMate calculation for spousal support for a couple with two children, ages 12 and 7, with a 15-year marriage, and child support obligations for the Respondent in the sum of $428 per month, results in the following range: $775 in the low range; $905 in the mid-range; and $1,034 in the high range. The midpoint for the possibility of a lump sum payment results in the following ranges: $144,327 on the low range; $168,253 in the mid-range; and $192,948 in the high range.

[113] With respect to the appropriate quantum, when I consider i) the Respondent’s current financial situation; ii) the limitations on his ability to earn more than what I have imputed to him; iii) his ability to support himself; iv) his relatively advanced age; v) his lack of motivation to improve himself, albeit not the result of the marriage breakdown but rather evident in his overall financial engagement during the marriage, and I contrast this to the Applicant’s superior financial situation, I exercise my discretion to conclude that the appropriate level of spousal support for the Respondent is the midpoint of $905 per month for an indefinite period of time.

[114] I do not preclude the possibility of a lump sum settlement as one way for the Applicant to meet this obligation. However, as neither party turned its mind to such an outcome, I decline to make an order one way or another. It may be that once the parties consider the totality of their obligations and liabilities, such a payment or set-off may make the most sense to enable them to move on with their respective lives. If they reach such an agreement, they shall include it in the final order to the judgment. If they are unable to agree, but would like the court to make a specific determination, they shall provide me with supplementary written submission outlining their respective positions in accordance with my directions outlined below.

d) What child support and s. 7 expenses would the Respondent have to pay on the basis of his imputed income?

[115] Given my decision to impute the Respondent’s income at $28,000, the Child Support Guidelines result in a monthly child support payment of $428.

[116] With respect to s. 7 expenses, with an imputed income of $28,000 to the Respondent and $92,000 to the Applicant, the share in obligations between the two corresponds to a 23 percent contribution for the Respondent and a 77 percent contribution for the Applicant.

[117] Insofar as the parties put certain figures before the court on account of payments since their separation, the parties should revisit their calculations and adjust whatever retroactive payments were made in accordance with these findings to determine who is owing what. This is to be undertaken for both the child support payments made to date as well as the s. 7 expenses.

[118] Insofar as there might be a question about the child support payments ordered by Ricchetti J., as I already discussed above, that order was made on the basis of incomplete and misleading evidence. Given my findings, those interim payments are to be adjusted and reconciled in accordance with my findings on the appropriate level of child support for the two children of the marriage.

e) What is the resulting equalization payment on account of the parties’ net family property?

[119] Although by far the easiest of all the issues before the court, the parties were unable to agree on an equalization payment. Their differences were not substantial, but the specific claims advanced suggested certain difficulties in their understanding as to what could or could not be claimed. I do acknowledge that they did reach an agreement with respect to the treatment of their Bloor Street Condo investment property and the treatment of US$45,000 that were transferred from Russia for that purchase.

[120] They also agreed that the value of the matrimonial home as of the valuation date was $560,000. They agreed that the property’s current value is approximately $712,000. For the purposes of equalization, the relevant value of the matrimonial property is $560,000. For the purposes of the disposition of the matrimonial property, the estimated value of $712,000 is a relevant consideration.

[121] I turn each of the issues in dispute in relation to equalization.

i. Tuapse Condo – Gogol Street, Tuapse City, Russia

[122] The Applicant wishes to include the condo apartment that she and the Respondent occupied for about ten days when they first got married as one of the properties owned on the valuation date. She also characterized it as a matrimonial home. The Respondent submitted that the property was never a matrimonial home and that in any event, having been sold in 2014, before the separation, the net value of the property as of the date of the marriage would be properly deductible from the Respondent’s net family property. The value of that property was agreed to being $64,785.

[123] On the basis of the evidence before me, I make the following observations and findings. To begin with, on the characterization of the condo unit as a matrimonial home, there was no evidentiary basis for such a finding. The Applicant’s attempt to characterize that property as something it never was compromised the Applicant’s overall credibility.

[124] The Applicant testified that she and the Respondent were together for ten days after they got married and before he left for Canada. She then suggested that even though she was only 17 and her family lived in a different town from the location of the subject apartment, she would live with her parents during the week and then travel to Tuapse and occupy the Respondent’s apartment on weekends. She did so even though she did not have any friends or any other reason to be there on weekends. The Applicant suggested that they also stayed at that apartment when they went back to Russia on holiday. They returned to Russia as a family on 2 occasions over the course of 15 years.

[125] The Respondent denied that he and the Applicant ever lived at the Tuapse property. He more or less described the marriage as one of convenience. He met the Applicant, he told her about his plans to go to Canada, and she asked if she could come along. He agreed that one way to accomplish that was to get married. The Respondent suggested that he was indifferent to the arrangement and not emotionally invested. Consistent with that view, he testified that after the wedding ceremony, he went home and stayed with his parents until his departure to Canada and the Applicant went home to her parents.

[126] With the greatest respect to the Applicant, her testimony that as a 17-year-old she would live with her parents during the week but then she would leave on weekends to go to another town to occupy the Tuapse apartment all alone and in a place where she did not have any other connections or friends to visit made no sense. The evidence seemed forced and contrived for the purposes of designating the apartment as a matrimonial home.

[127] The suggestion that the characterization of the Tuapse apartment as a matrimonial home was strengthened by the claim that they used that home habitually and on a regular basis when they returned to Russia rang hollow in the face of the admission that in their 15 years of marriage, the Makeevs returned to Russia as a family on only 2 occasions. It was further undermined by the fact that the principle resident at the Tuapse apartment was the Respondent’s own mother.

[128] Against the totality of this evidence, I decline to find that the Tuapse apartment was ever a matrimonial home. If anything, the Applicant’s insistence that the Tuapse apartment be characterized as such even in the face of the admissions that the apartment was sold well before the valuation date and that the Respondent applied the proceeds from that sale towards the purchase of the investment property only underscored for me the Applicant’s forced attempt to reduce her liability for an equalization payment to the Respondent.

[129] Having found the above, I also disagree with the Respondent’s inclusion of the sum of $64,785, reflecting his share of the proceeds from the sale of the Tuapse apartment, because on the valuation date, the Respondent had transferred those funds to Canada and contributed them towards the down payment for the Bloor Street Condo investment property. Although the purchase of the property closed after the date of separation and therefore after the valuation date, the down payment in the sum of $85,000 was made well prior to separation and in any event by December 2014. The Respondent no longer had that sum of money as his asset and it would therefore be inappropriate to include it in the analysis.

[130] Insofar as the parties reached a separate agreement on the sharing of the proceeds from the sale of the Bloor Street Condo and each received a substantial payment, this further confirms my decision to exclude the sum of $64,785 from the Respondent’s net family property.

ii. Krasnodar Condo – Russia

[131] The Respondent asked that the sum of $6,404.66 be included in the assets owned by the Applicant on the valuation date on account of her 1/3 ownership right in the apartment located in Russia. The Applicant strenuously objected to such an inclusion.

[132] The Applicant testified extensively about receiving a State Maternity Certificate from the Russian Federation when her second daughter was born. She explained that the Certificate had no cash value and that it had to be used for the benefit of the children. Under this arrangement, each child has a 1/3 interest in the apartment, with the remaining third held by the Applicant in trust for the two daughters until they reach the age of majority. Interestingly, in addition to the Certificate funds, the Applicant received some funds from her own mother to allow her to complete the purchase. She also explained that she purchased the said apartment from her brother. Finally, the Applicant testified that the Respondent expressly signed a waiver at the Russian Consulate in Toronto, thereby waiving any right to his share in the said apartment.

[133] The Respondent agreed that he signed that waiver but in any event, submitted that the Applicant had to reflect her 1/3 share in the apartment by including it in the assets owned on the valuation date.

[134] Although there was no independent evidence to explain this maternity benefit scheme, neither party disputed its contours. Insofar as the Respondent’s waiver is concerned, he has waived those rights with respect to the laws of Russia as those apply to any possible claim he could have to this Maternity Benefit scheme. Such a waiver could not extend to his potential rights and obligations for the purposes of equalization.

[135] The party seeking to exclude assets from their net family property bears the onus: Family Law Act, s. 4(3). In Cook v. Cook, 2011 ONSC 5920, the mother successfully claimed that she held a bank account in trust for her daughter where that account listed the daughter’s name prior to separation and appeared to contain funds from her daughter’s summer employment. As such, the bank account was not subject to equalization: at para. 145. By contrast, in Dai v. Ding, 2019 ONSC 6118, the mother claimed that she held a condominium in China in trust for her daughter; however, there was absolutely no evidence to support that claim, and the court therefore declined to exclude that asset from her net family property calculations: at para. 236.

[136] The definition of “property” in the Family Law Act is broad, and includes any “property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself”: s. 4(2)(a). Thus, in Lampron v. Lampron, at para. 5, aff’d (2005), 12 R.F.L. (6th) 391 (Ont. C.A.), where the parties claimed to hold investments in trust for their children, the court declined to exclude those assets from the net family property calculations on the basis that the applicant maintained exclusive control over those funds, there was no proof brought to show that the trust was irrevocable, and the investments were listed in the parties’ names. See also Harrington v. Harrington, 2009 ONCA 39, 63 R.F.L. (6th) 264, at paras. 6, 40, where the respondent sought to exclude a joint account on the basis that it was an implied trust for his father’s benefit. The Court of Appeal noted that the respondent was entitled to use the income generated on the account for himself and he declared it on his tax returns in concluding that this was property over which he had a “power of appointment” exercisable in his favour. It was therefore included in his net family property.

[137] Turning to the particular instrument in this case, however the Applicant obtained this benefit, and given her unchallenged description, I find that she has met her onus to show that her share of the apartment is held in trust for the two daughters. Their names are on the property. She has no control over the 1/3 share that she holds for the daughters, unlike in Lampron or Harrington, and there was no dispute by the Respondent over her inability to do anything she wished with that share.

[138] I hasten to add that I found it curious that given the noted limitations, on the Applicant’s own engagement with the 1/3 share, she would require the Respondent to waive any interest in it. Neither party led any evidence to suggest that the Respondent could even claim that interest under Russian law, and under what circumstances he could do so. That the apartment was owned by the Applicant’s brother and that the transaction did not seem entirely arms-length, did cause me to pause and question the Applicant’s credibility. Ultimately, on the totality of the evidence and having regard for the limited value of that share, I concluded on the balance of probabilities that the Applicant did not control the 1/3 share and that it should be excluded from the NFP analysis.

iii. US$4,000 Gift / CND$5,240

[139] The Respondent asks that the Applicant include in her bank accounts and savings the sum of US$4,000 (CDN$5,240), which he says his mother sent to the Applicant in July 2015, just prior to their separation. The Applicant disputes that claim. She testified that the said sum represented a reimbursement for the payments she made for the children’s airplane tickets to visit their grandmother in Russia as well as other family-related expenses. The Respondent did not seem to dispute this evidence.

[140] On the totality of the evidence on this issue, I conclude that this sum was not a gift to the Applicant but a reimbursement of expenses already incurred. Accordingly, I see no basis for including it in the NFP analysis. I further note that this arrangement is consistent with my finding that the Applicant managed the family finances and made the various payments. It is also further confirmation that the Respondent was not earning anywhere near the kind of money suggested by the Applicant. Even for a trip to visit his mother, he had to rely on the Applicant to purchase the tickets and on his mother to reimburse the Applicant for the payment.

iv. Vehicles

[141] The parties have two vehicles. One is a jointly-owned 2008 Toyota Yaris with an agreed value of $6,000 that the Applicant uses, and the other is a 2002 Mitsubishi Outlander with a value of $1,000, owned by the Respondent. The Applicant’s position is that the value of the jointly owned Yaris should be divided equally between the two parties, even if it is only the Applicant who uses it.

[142] The Respondent asks that the Yaris be included only in the Applicant’s column. He says that he was only put on title to secure financing for the vehicle but that otherwise, he is only holding the vehicle in trust for the Applicant. Interestingly, the Respondent rejected a trust argument in relation to the Applicant’s 1/3 share of the Krasnodar Condo in Russia, but he relies on the same trust principles to exclude his 1/2 interest in the ownership of the Yaris.

[143] On balance, I am satisfied that the Yaris is the Applicant’s car and that it is appropriate that it be only in her list of assets. On the evidence before me, she was the one who used that car to go back and forth to work and for other family errands. The Respondent had his Mitsubishi and would not have had the need for a second vehicle.

v. Business Interest in AM Plumbing

[144] The Applicant sought to attribute a value of $22,500 to AM Plumbing, a company registered to the Respondent. There was no evidence whatsoever to support that value. The Respondent led evidence that the company had a value of $1,000 on account of his tools. The evidence was reliable and credible. Critical in the valuation of this business was the accountant’s conclusion that neither the company nor the Respondent had any goodwill connected to his electrical and plumbing activities. I note that the Applicant’s counsel exhibited some difficulty with that concept. The accountant’s conclusions, however, are also consistent with the recognition that the Respondent has not been a successful businessman; he does not have any client lists or a substantial client base; and even if he is not disclosing all of his earnings, there is nothing in his overall activities, his savings, and his lifestyle to suggest that AM Plumbing has any value greater than the suggested sum of $1,000.

[145] Accordingly, it appropriate to include $1,000 in the Respondent’s column related to Business interests.

vi. Household Goods

[146] The Respondent included in the Applicant’s column $2,000 for household goods. The Applicant did not include anything. Neither presented any evidence to support this proposed figure. The only evidence before the court was that the Respondent said he left everything in the matrimonial home when he moved out. In the absence of any credible evidence on the appropriate value, I decline to include anything. I would add that whatever the figure, and regardless of whether the Respondent eventually took anything with him or not, I would be dividing that figure equally between the parties with the further implication that the figure would be cancelled out and would not have any net effect on equalization.

vii. Notional Disposition Costs of the Applicant’s Pensions

[147] The Applicant has two very modest pensions. One from OMERS and another from Sun Life. She wishes to include notional disposition costs at 25 percent. The figures come to $7,513.14 for the OMERS pension and $914.47 for the Sun Life pension. The Respondent is prepared to accept 10 percent. At 10 percent, the respective figures are reduced to $3,005.23 and $365.79, respectively, and I have included that in the NFP analysis.

viii. Conclusion

[148] In light of the foregoing adjustments, I find that the Applicant owes the Respondent an equalization payment of $17,419.60. I have come to this figure on the following basis:

APPLICANT	RESPONDENT
Value of Assets owned on Valuation Date:
a) Land	$280,000
b) Household & Vehicles	$8,000
c) Accounts, Savings, Pensions	$35,113.76
d) Insurance	NIL
e) Business	NIL
f) Money Owed	NIL
g) Other Property	NIL
TOTAL VALUE OF PROPERTY OWNED ON VALUATION DATE	$321,113.76
Value of Debts & Liabilities on Valuation Date	$206,163.99
Net Value of Property (Other than Matrimonial Home) and debts on date of Marriage	NIL
TOTAL:	$206,163.99
NET FAMILY PROPERTY	$114,949.77
	($321,113.76 minus $206,163.99)
EQUALIZATION	$34,839.19
	($114,949.77 – $80,110.58)
	$17,419.60
	($34,839.19 / 2)
Applicant pays to the Respondent	$17,419.80

f) Should the matrimonial home be sold?

[149] In their written submissions, the parties discussed their respective positions on the sale of the matrimonial home. Neither discussed the issue in oral submissions. Their positions were anchored on their aspirations and expectations of their obligations related to their respective child and spousal support obligations.

[150] As joint owners, and in light of the overall evidence before this court, there is no legal impediment to requiring the matrimonial home to be sold and for each of the parties to obtain the benefit from the accumulated equity in the property. There will be disruption to the family if that happens, but that is one of the unfortunate consequences of a family breakdown.

[151] That said, now that the parties have my decision on their respective obligations and the equalization payment owed, they may wish to have the opportunity to re-evaluate their situations and consider whether they actually want the matrimonial property sold or whether there is some other way to address their respective obligations. They may also have renewed views on the timing for such a sale or even the possibility of a buyout. Although the latter is not something that the court has the jurisdiction to order, there is nothing impeding the court from giving the parties an opportunity to re-evaluate their respective situations and determine how they would like to deal with the matrimonial home the best way to meet their obligations, once and for all.

[152] In light of the above observations, I make no order on the sale of the matrimonial home at this time. If the parties reach an agreement, they may include the terms of such agreement in the terms of the final order. If they are unable to reach an agreement, but require my decision, then I will require renewed submissions from each party, outlining the order they would like me to make.

g) Should occupation rent be ordered?

[153] The Respondent submitted that he was entitled to occupation rent from the Applicant since she and the children have solely occupied the matrimonial home since August 2016. In his written submissions, his counsel submitted that the Respondent suffered significant financial hardship because he was unable to access the equity in the matrimonial home. He further alleged that the Applicant’s new boyfriend was getting the benefit of living at the matrimonial home without making any reasonable contribution.

[154] The Respondent did not lead any evidence on what the occupation rent ought to be. Nor did the Respondent explain how he would reconcile or set‑off any award for occupation rent against the all of the expenses related to the matrimonial home, which the Applicant paid on her own. The Respondent agreed that since the date of separation, he did not contribute anything towards the carrying costs of the matrimonial home.

[155] The Applicant opposed the Respondent’s claim and submitted that such orders are made only in exceptional circumstances. She underscored the fact that she carried all of the costs related to the matrimonial home since the date of separation.

[156] The evidence concerning this issue was grossly inadequate to enable even the consideration of an appropriate occupation sum. The Respondent’s voluntary departure from the matrimonial home one year following the date of separation, together with the fact that the Applicant covered all of the carrying costs for the house, including mortgage payments, property taxes, utilities and maintenance, could engage an inquiry over the possibility of a set-off and what such a reconciliation might look like. However, it is impossible to make any such order without any other evidence for my consideration.

Conclusion

[157] In light of the foregoing, I find as follows and make the following orders:

a) The Respondent’s income is imputed at $28,000 for the purposes of spousal and child support;

b) The Applicant’s income is imputed at $92,000 for the purposes of determining spousal support;

c) The Respondent is entitled to spousal support. Given the imputed incomes, their 15-year marriage, their respective financial positions, and their circumstances, as more particularly discussed above, I find that the Respondent is entitled to $905 per month in spousal support.

d) I make no order as to the appropriateness of a lump sum order, as this was not something for which either side made any submissions. It is open to the parties to consider whether a lump sum payment by the Applicant to the Respondent on account of the spousal support would make more financial sense. If the parties can agree to such an arrangement, they may reflect that in a final order. The lump sum figure would reflect the midpoint sum of $168,253.

e) The Respondent must pay the sum of $428 per month on account of child support for his two daughters.

f) Section 7 expenses shall be shared on the basis of a 23 percent contribution by the Respondent and 77 percent contribution by the Applicant. The expenses incurred to date have been reasonable.

g) Going forward, the Applicant shall give the Respondent at least 30 days’ notice of the intended s. 7 expense. The Respondent shall have 10 days to raise any questions, concerns, or objections. The parties shall work together to reconcile the past payments and determine the outstanding differences owing, if any.

h) If the Applicant fails to give the Respondent notice of the intended s. 7 expense, she will be liable to pay the full amount.

i) If the Respondent fails to raise any objections, questions, or concerns with respect to the proposed s. 7 expenses within the allotted 10 days, he shall be required to pay his share of the expense irrespective of any concerns he may have.

j) The final order will include a paragraph outlining the reconciliation of past payments by the parties as those relate to their various obligations concerning child and spousal support and s. 7 expenses. Such reconciliation shall be reflected in the final order

k) The Applicant shall pay to the Respondent an equalization payment of $17,419.60.

l) The issue of the sale of the matrimonial home remains outstanding. If they reach agreement, they may include the terms of such an agreement in the final order.

m) No order is made on account of the Respondent’s claim for occupancy rent.

n) On the issues of a spousal lump sum payment, the disposition of the matrimonial home, and the reconciliation of past payments, if the parties are unable to reach agreement and require my further decision, they shall make written submissions to the court. Such submissions shall not exceed four pages, double-spaced per issue. The Applicant shall have until August 30, 2019 to make submissions and the Respondent shall have until September 30, 2019 to respond. With respect to the possible disposition of the matrimonial home, the submissions shall include a proposed timeline for the sale as well as suggestions for a real estate agent and a real estate lawyer. I would expect that at the very least, the parties would reach agreement on the names of the real estate agent and the real estate lawyer.

Costs

[158] I strongly encourage the parties to consider the outcome of the trial and settle the issue of costs. If they are unable to do so, they may make their submissions in writing. Such submissions are not exceed four pages, double spaced, at 12-point font. In addition they will include a detailed Bill of Costs and any Offers to Settle. The timeline for these submissions shall be the same as the one outlined above for any supplementary submissions.

[159] Having said the above, I caution both parties that in my view, the success is divided. But for the implications of any offers to settle, the parties may wish to give careful and serious consideration as to whether in light of the outcome, they have something to gain from arguing costs or whether each should cover his and her own costs.

Tzimas J.

Released: July 18, 2019