COURT FILE NO.: FS-17-88738-00
DATE: 20190814
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANE J. NIEUWENHUYSEN
Self-Represented
Applicant
- and -
BOB NIEUWENHUYSEN
Robert A. Fernandes, for the Respondent
Respondent
HEARD: March 5, 6, 7, 8, 2019
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The Applicant Wife, Diane Nieuwenhuysen, and the Respondent Husband, Bob Nieuwenhuysen, commenced cohabitation on November 15, 1992, and were later married on July 10, 1993. They separated on March 10, 2011. There are two children of the marriage, Liam Peter N, born August 15, 1996, and Adam George N, born June 4, 1999.
[2] This trial was held to address issues arising out of the marital separation of the parties. With the exception of disclosure orders, no interim orders of a substantive nature were obtained in the eight years it took to have this matter tried.
[3] By agreement, the following issues remain to be determined before me at trial:
a) retroactive child support;
b) retroactive and ongoing spousal support payable by the Respondent Husband to the Applicant Wife;
c) equalization of net family property, including the sale of the matrimonial home;
d) post-separation adjustments;
e) the Applicant Wife’s request for an ongoing restraining order; and
f) a final divorce.
A. Child Support
(i) Facts
[4] As of the date of separation, Liam was 14 years old and a full-time student. Liam has been diagnosed with Asperger’s Syndrome and Type II Diabetes. Liam struggled with school and has only completed grade 10 and one credit in grade 11. He has not attended school since Fall 2013 and was officially removed from school by the school board for non-attendance in early 2014. Liam turned 18 years old on August 15, 2014. He was not employed full time, and eventually qualified for O.D.S.P. benefits as of November 2018. Liam receives $896 per month from O.D.S.P.
[5] Adam has also been diagnosed with Asperger’s Syndrome and a mild learning disability. His residency was the same as Liam’s, except in January 2013, Liam went to live with his maternal aunt, Linda Burnett, in Sault Ste. Marie.
[6] Despite his challenges, Adam is succeeding in Sault Ste. Marie. His primary residence with his maternal aunt was formalized pursuant to the Order of Mr. Justice Garneau of the Superior Court of Justice in Sault Ste. Marie on April 17, 2015. On April 23, 2015, the Husband was ordered to pay child support to the maternal aunt in the sum of $1,112 per month. Adam is currently in his second year of post-secondary at Algoma University, where he is pursuing a bachelor’s degree in law and political science. Linda Burnett is the Assistant Dean of the University and accordingly, Adam pays no tuition. The Husband is current in his child support payments to Linda Burnett with respect to Adam.
[7] Following separation, the family remained together in the matrimonial home until the end of July 2011, when the Husband states he was locked out of the home and the Wife called the police. The Husband maintained his own residence thereafter, except for a few weeks in November 2011 when he returned to the matrimonial home to look after the children while the Wife was in the hospital, and again for a one-year period from October 2012 to October 2013 where he lived in the basement.
(ii) Analysis
[8] Liam ceased being a child of the marriage when he turned 18 and was no longer in school. No evidence has been submitted to support a finding that he was unable to withdraw from parental support due to illness, disability or other reason. While it is acknowledged that Liam has Asperger’s Syndrome and Diabetes, no evidence was presented to show that these conditions prevented him from attending school or working. Accordingly, child support should be paid with respect to Liam from the date of separation in March 2011, to August 2014 when he turned 18 years old.
[9] Adam remains a child of the marriage, but has been cared for by his aunt since January 2013. No child support is payable to either parent after this date.
[10] Between March 2011 and July 2011, Liam and Adam lived with both parents in the matrimonial home. During this period, the children’s needs were met in the home. Therefore, no support should be payable.
[11] From November 2011 until May 2012, Liam and Adam divided their time between their parent’s homes. The Wife disputes that the children spent their time equally between the homes, but does admit they slept at the Husband’s home during the week and returned to her home for weekends, P.D. days and holidays. I am prepared to find that access was shared equally during that time.
[12] Child support should be calculated by offsetting each party’s obligations to the other in accordance with Section 9 of the Federal Child Support Guidelines. No party gave any evidence that they incurred an increased cost because of shared custody at this time and no argument was made to calculate child support otherwise.
[13] From June 2012 until October 2012, the children lived with the Wife. From October 2012 to October 2013, the children lived with both parents under the same roof. In January 2013, Adam left for Sault Ste. Marie. Liam was no longer a child of the marriage as of August 2014.
[14] This Application was not initiated by the Wife until March 2017. Accordingly, she is seeking child support retroactive to August 2011, a period of almost six years. Utilizing the principles set forth in paras. 94-116 of D.B.S v. S.R.G., 2006 SCC 37, I am directed to consider several factors before granting such an Order. These factors include:
(i) is there a reasonable excuse for why support or a variation was not sought earlier;
(ii) what is the conduct of the payor parent;
(iii) what are the circumstances of the child; and
(iv) would a retroactive award result in hardship.
Further, it is usually inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent: D.B.S., at para. 123.
[15] In the case before me, I am satisfied that a retroactive child support order should reach back to 2011. This is because the Husband was aware of his obligation to support the Wife and children since the separation, and did so indirectly by paying for the upkeep of the home and by making periodic payments to the Wife. In essence, child support has already been paid, but must be adjusted now that accurate income information has been obtained by both parties.
[16] Accordingly, from August 2011 to October 2011, child support should be payable to the Wife for the support of two children for the monthly sum of $1,420 based on the Husband’s 2011 income of $101,342.
[17] From November 2011 to May 2012, child support shall be based on an offset between the two parties’ income. For the reasons set out below, I am not prepared to impute any income to the Wife for this period. Accordingly, given that the Wife’s income was minimal in 2011, the Husband should pay the sum of $1,420 per month until the end of 2011.
[18] As of 2012, both the Husband and the Wife had an increase in income. The set off requires the Husband to pay the sum of $1,542 per month based on his 2012 income of $110,327. This amount should continue to be paid until the end of December 2012 when both children lived primarily with the Wife.
[19] Following that, support should only be paid for Liam, as Adam moved to Sault Ste. Marie. As of January 1, 2013, support should be paid to the Wife in the monthly sum of $1,005 based on the Husband’s 2013 income of $116,019.
[20] In 2014, the Husband’s income increased, and therefore child support should increase as well. As of January 1, 2014, support should be paid to the Wife in the monthly sum of $1,116 based on the Husband’s 2014 income of $130,255.35. This amount should be paid up until the end of August 2014, when Liam ceased being a child of the marriage.
[21] Accordingly, the Husband owes retroactive child support in the sum of $45,592, as summarized in Schedule “A” attached hereto.
[22] With respect to section 7 expenses, the wife seeks reimbursement for various expenses with respect to Liam. Only expenses incurred prior to August 2014 shall be considered as that is when Liam ceased being a child of the marriage. The following expenses are claimed by the Wife:
a) Cell phone costs for Liam: $201 in 2011, $310 in 2012, $400 in 2013, and $110 in 2014. Unfortunately, no receipts were provided to support these sums;
b) Allowances paid to her sons in 2011 ($1,300) and 2012 ($2,400). Unfortunately, this is not a section 7 expense;
c) A new bed and mattress for Liam in 2011 ($991), school supplies and uniforms for Liam from 2011 to 2013 (totaling $1,025), and clothing for both children ($1,205). Given that the Wife is going to receive child support for this period, these expenses should be paid by her as none of these are considered extraordinary or special expenses.
d) Instalments for Adam’s trip to Québec in 2012 ($297) and counselling for both children in 2011 ($540). While these are appropriate section 7 expenses, no receipts are provided for any of these expenses.
[23] For these reasons, there shall be no retroactive section 7 expenses reimbursed to the Wife.
B. Spousal Support
(i) Facts
[24] The Husband has worked for the Region of Peel for 31 years. He is currently the Manager of Roads, Design and Construction. He obtained his most recent position on May 3, 2011, shortly after separation. The position was initially for 12 months but was then made permanent. As evidenced by his Offer Letter, this promotion resulted in a 7% increase in his base salary. Given that he did not have managerial experience, he spent that 12-month period upgrading his skills and abilities by taking several courses. The Husband is now earning much more income than he ever did during the marriage.
[25] Although the Husband was eligible for retirement as of December 28, 2018, he indicated that he will not maximize his pension until March 28, 2023. He will be 59 years old at that time.
[26] The Wife did not finish high school. A copy of her high school transcript shows that she only had 15 high school credits, insufficient to graduate. She had completed grade 10, and only took a few courses in grade 11 in 1979.
[27] The Wife provided evidence that she was a bank teller from 1981 to 1984. From 1984 until 1989, she was the Assistant Manager, Cash and Credit, for Best Foods Canada. From 1989 to 1998, she worked as a Credit Supervisor for Carleton Cards. This was the position she held when she got married and had her first child. After she was let go from Carleton Cards, she started to retrain, but then got pregnant with her second child. She has not worked since that time.
[28] The Wife provided evidence that she took the following steps to retrain herself:
• Obtained a Certificate in Powerful Business Writing Skills (1994);
• Completed a course in Commercial Law from the Canadian Institute of Credit and Financial Management (1992);
• Completed the FrontLine Leadership Program from Carleton Cards (1991);
• Completed a course in Performance Appraisal and Development from American Greetings (1989);
• Attended a seminar in The Essentials of Credit Management (1988);
• Took a course in Accounting with the Canadian Certified General Accountants Association (1985); and
• Completed courses in Interpersonal Communications and the Fundamentals of Accounting through the University of Toronto of Continuing Studies (1984).
She later tried to obtain her high school diploma.
[29] There is no work history once the Wife had her second child. She stayed home and raised two children with Asperger’s Syndrome while the Husband worked full time and financially supported the family. Just prior to separation, the Wife indicated that she and her sister tried to launch a trade magazine for staging. They registered a business called Staged in Canada on June 30, 2011. She maintains that other than registering the name and doing some preliminary staging, very little resulted from this venture. Around that time, the Wife got sick (as detailed below) and her sister never pursued the business further.
[30] Around the same time, namely May 11, 2011, the Wife also registered a business called Diane’s Sew-Time. It was her intention to do seamstress work such as alterations, household curtains, cushions and similar items. She did a few alterations, but not much came of her business. Since separation, the Wife indicated that she volunteered with Autism Sings from July until September 2018, at the suggestion of her psychiatrist. She hopes to be able to do more soon. The Wife provided evidence that she was denied financial assistance from Ontario Works in September 2018.
[31] Both parties conceded that throughout the marriage, the Wife was an active investor and on average made approximately $20,000 in returns each year for the family.
[32] The Wife states that just before separation, she started to get sick. She states that her illness started with the flu, and that she suffered from many headaches. She states she eventually obtained a CAT scan and an MRI, to which the MRI disclosed a cancerous growth on her thyroid. She ended the marriage immediately thereafter. The growth was removed in May 2011. She received no radiation or chemotherapy and continues to take medication for her thyroid.
[33] The Wife states that following her surgery, she started to feel better, but unfortunately her symptoms returned in the Fall and Winter of 2011 which caused her to be hospitalized for a few weeks. At this time, the Husband moved back into the basement of the matrimonial home to assist with the children.
[34] The Wife states that for a period of three years, she could not taste food, was malnourished and did not sleep well. The Husband admits that the Wife’s health declined towards 2013, which is what necessitated the involvement of the Peel Children’s Aid Society, and the eventual move of Adam to Sault Ste. Marie.
[35] The Wife also indicated that years ago she saw her family doctor who prescribed her antidepressant medication. She did not take it regularly and only took it when she felt she needed it, like Aspirin. She stated that she used the medication until 2008 or 2009 and then stopped using them “cold turkey”. She was then put back on antidepressants in 2011 around the time of her Cancer diagnosis, but claims she stopped taking them again in November 2011. She indicated that she never wants to go on them again. The Wife also admitted that during part of the time that the Husband was living in the basement of the matrimonial home (from 2012 to 2013), she was a patient at a psychiatric ward.
[36] The Wife attempted to admit into evidence at trial a letter from a mental health professional regarding her condition. Due to the late service of the report, and given that it was simply a recital of facts she gave to a health professional who had no history of her health, it was not admitted into evidence. Despite this, and despite the fact that the Wife never clearly indicated a diagnosis, both parties admit that the Wife was in poor health prior to the separation and at least from the date of separation until 2014.
[37] The income earned by both parties since 2008 is as follows:
| Year | Husband | Wife |
|---|---|---|
| 2008 | $ 88,891.00 | |
| 2009 | $ 91,611.00 | |
| 2010 | $ 96,202.00 | $ 683.00 |
| 2011 | $ 101,342.00 | $ 7,986.00 |
| 2012 | $ 110,327.00 | $ 8,155.00 |
| 2013 | $ 116,019.00 | |
| 2014 | $ 130,255.35 | |
| 2015 | $ 130,665.00 | $ 300.00 |
| 2016 | $ 133,318.00 | |
| 2017 | $ 135,699.00 | $ 8,367.00 |
| 2018 | $ 143,702.52 | $ 8,000.00 |
[38] It is admitted that from the date of separation, the Husband maintained the mortgages, secured line of credit, property taxes and household utility bills for the matrimonial home, even though the Wife predominantly lived there. He also gave the Wife additional cash payments. The total payments made by each party towards these expenses are set out below.
[39] With respect to the additional cash payments, the Husband has provided evidence (through his bank statements) that since 2012, he has transferred the following to the Wife:
• In 2012, he paid her a total of $2,850;
• In 2013, he paid her a total of $7,850;
• In 2014, he paid her a total of $9,600;
• In 2015, he paid her a total of $6,400;
• In 2016, he paid her a total of $3,100;
• In 2017, he paid her a total of $3,500; and
• In 2018, he paid her a total of $3,835.
The total amount paid directly to the Wife was $37,135. No evidence was given regarding cash payments made in 2019.
[40] Currently, the Wife is not working. Her current income is approximately $300 per month from the Husband, plus $33 per month from her Child Tax Benefit, although it is not clear how she qualifies for same. Occasionally, the Wife’s new boyfriend stays with her, but he travels quite a bit. He is a mover by trade and has his own address in Montreal. He also helps her around the house and is good with her eldest son. He makes no contributions to household expenses.
(ii) Analysis
[41] The Husband does not dispute that the Wife is entitled to spousal support. Given the facts of this case, I have no difficulty in finding that the Wife is entitled to compensatory support.
[42] However, the Husband makes two arguments with respect to the amount awarded. First, he argues that income should be imputed to the Wife. He argues that she should have at least a minimum wage income attributed to her. However, she has not worked since the children were born and there is no reason provided as to why this is the case. Second, he argues that his increase in income occurred after the marriage ended and is no way attributable to the marriage. As a result, it is his income that he earned during the marriage that should be used to determine proper spousal support obligations.
[43] With regards to the Husband’s first argument, I am not prepared to impute income to the Wife for the years following separation until trial. The evidence is clear that the Wife was hospitalized for a tumour and was off antidepressant medication prescribed by her doctor. Even the Husband has admitted that her health was not good during these years, that he had to occasionally move back to the matrimonial home and that the Children’s Aid Society had become involved.
[44] After 2014, the Wife has not provided many reasons why she has not worked, except to say that she was not well. She would not elaborate much more, except to say that she recently started to feel better. Neither party would admit it, but it was implied by both parties that during this period the Wife suffered from some mental health challenges. I suspect the lack of evidence on this issue was due to the fact that the Wife was self-represented at trial. These mental health challenges, in addition to raising two special needs children, made the likelihood of finding employment outside of the house unlikely.
[45] The Wife has not worked full time for twenty years and cannot be expected to do so immediately. However, the Wife should be expected to make some efforts to be self-sufficient. Accordingly, I find it is appropriate to impute a part time, minimum wage income to her of $15,000 as of the beginning of 2014.
[46] With respect to the Husband’s second argument, I do not accept the Husband’s position that the court used his pre-separation income for the purpose of calculating spousal support. In Thompson v. Thompson, 2013 ONSC 5500, Chappel J. set out the factors to consider when determining if the quantum of spousal support payable to the recipient spouse should take into consideration a post-separation raise in income by the payor spouse. After reviewing the applicable case law (cites omitted), Chappel J. states at para. 103:
The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:
a) A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases;
b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship;
c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income;
d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case;
e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.
f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career.
g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.
h) By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.
i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.
j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.
k) Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult.
l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post–separation income increases.
m) Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases.
[47] On the facts before me, I find that the Wife is entitled to participate in the Husband’s increase in income post-separation. I find this for several reasons:
a) The Wife is entitled to spousal support on a compensatory basis;
b) The increase in income was provided by the same employer the Husband had throughout the marriage;
c) The Husband’s promotion and raise were a result of his work with the Region of Peel throughout the course of the marriage;
d) The Husband stated that although he did not have the qualifications for the job, his employer was willing to give him a chance and give him 12 months to prove himself. It is acknowledged that he educated himself during that time, which occurred post-separation, but he was only given this opportunity to prove himself because of his successful career at the Region that he built throughout the marriage;
e) The additional time the Husband spent on courses and training during his 12 months was during a period when either the wife had the children with her, or when he shared childcare responsibilities with her;
f) This was a long-term relationship where the parties’ personal and financial affairs were completely integrated;
g) The promotion occurred only two months after separation; and
h) The continual increases in the Husband’s income is attributable to a job that was obtained when the family still lived together in the matrimonial home, albeit separated. At this time, and in all respects, the parties were living the very same life they led prior to separation, from a financial perspective and from the perspective of the roles they had in the family.
[48] Finally, the Husband has raised the argument that there should be no retroactive spousal support due to the Wife’s failure to raise it in a timely manner. I do not accept this. Much like my analysis with respect to child support, the Husband did support the Wife since the time of separation. It cannot be argued that she is not entitled to retroactive spousal support because she did not ask for it. She was already receiving it, indirectly, through the husband’s maintenance of the matrimonial home and through periodic and direct payments to the Wife.
[49] In addition, the Wife did seek retroactive child support and spousal support in her pleadings. As stated in Thompson, at para. 77, if a party who wishes to claim child or spousal support for a period predating the date when proceedings were commenced, they must specifically include a claim for retroactive relief in their pleading.
[50] Based on the facts of this case, with respect to retroactive spousal support, I find that the Wife’s spousal support should fall within the high range of the Spousal Support Advisory Guidelines, except for the period starting in 2015 in which the Husband paid child support for Adam to the maternal aunt. During this period, support should be mid-range to recognize this added financial responsibility.
[51] I note that this is a long-term relationship, and that the Wife has a strong compensatory claim. The Wife also currently has a great need for support, as she has been out of the job market for a lengthy period and has minimal training and education. On the other hand, the Husband has the ability to pay, especially since his income has increased since separation.
[52] Bearing this in mind, and as shown in Schedule “A”, the total amount of retroactive spousal support payable from the date of separation to August 30, 2019, is $294,894. Given that the Husband did not have the benefit of claiming the usual income tax deductions on the amount that should be paid, I will reduce the amount outstanding by 40%, for a total owing of $176,936.40.
[53] Going forward, the Wife’s need will continue to exist, and she will require time to retrain and transition back to the workforce. Bearing in mind that the Wife needs incentive to return to work, and given that the Husband is still paying support for Adam, the Wife should receive spousal support in the mid-range, rounded up to $3,300 per month.
[54] All DivorceMate calculations are found as Schedule “B”.
C. Equalization
[55] The matrimonial home is jointly owed. There are various registered encumbrances registered on title, which are joint obligations. I have already dealt with the sale of the matrimonial home in my Endorsement of March 8, 2019.
[56] Attached as Schedule “C” is the Net Family Property Statement that resolves the issue of equalization. All amounts were agreed to except the following:
a) Household Contents: neither party provided a valuation, but agreed that the total sum of $5,000 was appropriate. The Wife claims that the Husband received at least one-third of the items, while the Husband claims the Wife retained all the items. Given the conflicting evidence on the issue of possession, neither party has satisfied this court that any sum should be included on the Net Family Property Statement. The Husband has indicated that if he can remove his items from the matrimonial home when it sold, he is content that no value be placed on the Net Family Property Statement;
b) Ford Focus: the parties agree that the 2005 Ford Focus belongs to the Wife, but disagree as to the value. No evidence was provided to substantiate the value given by the Wife, namely $3,000. However, in her Financial Statement sworn April 12, 2018, which she claims was still accurate, the Wife values the car at $6,000. Accordingly, that will be the value used;
c) Computer Equipment: the Wife maintains that the Husband took the computer equipment which she values at $1,000. The Husband argues that the Wife maintains computer equipment, plus other items, which he values at $4,000. No evidence was given with respect to the value of these items and accordingly they will be left off the Net Family Property Statement;
d) Joint Savings Account: the Wife claimed that there was a joint savings account (account number 510500) which had a balance of $3,808.50 on the date of separation. The Wife claims it was divided equally in the months following the separation. The Husband does not include this on his statement, and accordingly I do not include this account in the Net Family Property calculation;
e) 3209 Gwendale Crescent: the Wife maintains that the parties owned a jointly held property on the date of marriage at 3209 Gwendale Cr. in Mississauga. The Husband has not listed this property on his Net Family Property Statement. Given that it is a jointly held property, its inclusion does not affect the calculation and accordingly I have left off;
f) Encumbrances on the Matrimonial Home: there appears to be a first mortgage, a second mortgage, and a secured line of credit on the matrimonial home. Given that I will deal with the disposition of proceeds of the sale of the home below, I will not include it on the Net Family Property Statement;
g) Consumer Debt: the Wife maintains that at the date of separation, she had consumer debt of approximately $11,000 to $12,000. The Husband is not prepared to admit these debts. Unfortunately, the Wife provided no evidence of these debts and accordingly they shall not be included on the Net Family Property Statement;
h) Date of Marriage Deductions: the Wife has included date of marriage deductions for both her and the Husband for general household items and vehicles. She indicates that she had approximately $17,800 in marital assets and that the Husband had approximately $15,000. The Husband included no values for date of marriage property and no evidence was provided to support these values. Accordingly, no date of marriage values were included in the calculation;
i) Children’s Bank Accounts: neither party seeks an interest in the bank accounts designated for their children; and
j) Investment Account: the Wife admits that on the date of separation, she had an investment account with RBC in the sum of $14,876. She indicates that this is a trust account for the children, but has provided no evidence to support that. Accordingly, that amount should be added to her Net Family Property.
[57] Based on the calculations contained in the Net Family Property Statement, setting aside the issue of the matrimonial home and dividing the Husband’s pension at source, the Wife owes to the Husband an equalization payment of $32,740.
D. Post Separation Adjustments
[58] By the time this matter proceeded to trial, the parties had been separated for approximately eight years. During this time, the Wife resided in the matrimonial home, while the Husband resided in the home for only a small period of time.
[59] The Wife has provided a list of expenses associated with the matrimonial home, as well as other childcare related expenses. Most of the receipts are too small to read, are vague and at times are only quotes. Some of the expenses she has claimed are items that she utilized such as the dryer and fridge, which are not appropriately reimbursed.
[60] The Wife claims the following maintenance on the matrimonial home:
• She had to get the roof partially replaced at a cost of $5,800, which was done by Tops Roofing;
• She claims she spent $197 on the main floor toilet in 2017;
• She claims she spent $400 to remove an ash tree, an old backyard trampoline and an old garden shed, all in 2018;
• She claims she spent $565 to repair a crack in the foundation, which was done by Hummingbird Waterproofing; and
• She claims she had to replace the eavestrough, fascia and down spout which cost $4,650 plus tax.
[61] The Husband is disappointed that the Wife did not provide three estimates for these expenses and seek his consent. He refuses to admit that the work was even done. Nonetheless, these are capital expenses that should be shared by the parties. The expenses claimed are approximately $12,000.00. While there are no receipts, the costs do seem reasonable for the work done, and I am satisfied that the work was completed. Accordingly, the Wife will be credited for one-half of the costs, or $6,000.
[62] The Wife concedes that Legal Aid put a lien on her home for $20,000 in relation to her legal services. Any payment to be given to Legal Aid will come from the Wife’s share of the proceeds of sale. If a lien is on title in relation to household improvements, it shall be shared equally by the parties.
[63] The Husband has indicated that the Wife withdrew $4,140 from his RRSP investments with RBC. It is clear from the statements that the Wife took that amount of money and put in into her own investment account. Therefore, the Husband should receive a full credit for that amount.
[64] It is not disputed that the Wife closed out their joint investment account in September 2011 and put the funds into her own account. However, there is conflicting and/or unclear evidence as to what happened between the date of separation and the date that the Wife took the funds. It is admitted though that on the day the funds were taken by the Wife, the total amount was $54,664.31. The Husband should be credited with one-half of this amount, which the Wife concedes.
[65] With respect to the matrimonial home expenses, the Husband and Wife have both provided evidence of what they contributed. The expenses paid by each party are set forth in Schedule “D” hereto.
[66] The mortgage payments, interest on the secured line of credit and the property taxes should be split evenly between the parties. Of these items, I have calculated that the Husband has paid $167,714.99. Half of this is his expense in any event, so one-half should be credited to the Husband in the amount of $83,857.50. The Wife also paid a total of $7,259, of which one-half, or $3,629.50, should be credited to her.
[67] With respect to the utility bills, these are the responsibility of the Wife. These are expenses which she consumed herself, except for the time the Husband lived in the matrimonial home (October 2012 to October 2013). The Husband did not seek an accounting for the utilities he paid in 2011. Accordingly, based on the proof of payment provided by the Husband, he should be credited for the utility bills he paid on behalf of the Wife, except for the periods noted above, where he should only be credited for one-half. For 2012, the Husband should be reimbursed for the utilities he paid until October, and then be responsible for only one-half of the utilities for the rest of the year, for a total credit of $2,251.72. For 2013, the Husband should be credited for one-half of the utilities from January to October 2013, and then for all utilities he paid for November and December 2013, for a total of $2,102. For the remaining years, he should be credited for the full amount paid from 2012 to the end of August 2019, for a total of $21,440.72.
[68] Although I received no proof of expenses for 2019, the Husband was to continue to pay these expenses. I have therefore based my estimates on the 2018 averages.
E. Restraining Order
[69] The Husband states that the restraining order has been in place since 2011. He admits that when he was served with the court papers seeking a restraining order, he did not pay any attention to it.
[70] The Husband does admit that he has been to the house a few times since the restraining order, usually to pick up the kids. He repeats that he lived in the matrimonial home for one year from approximately October 2012 to October 2013.
[71] The Wife also provided a copy of a letter from the Ministry of the Attorney General dated November 23, 2018, identifying her as victim or witness of a crime, and confirming that they were prosecuting a criminal matter involving the Husband. The letter indicates that his next court date was May 23, 2019. There is no indication of the charge.
[72] On or around February 29, 2019, the Wife also contacted the police and asserted that the Husband came within 100 metres of her home, which she surmised from the contents of a text message sent to their son. She maintained that the Husband has been stalking her for the last eight years. She also believes that he drives by occasionally, but then stated that she sees him driving by a great deal. She also admitted that she is not sure what car he drives, but she believes it is him.
[73] The Wife maintains that she is terrified of the Husband. She is fearful that if he does not “win”, he will snap, and she is afraid he will harm her.
[74] When confronted with the letter from the Attorney General’s office regarding criminal proceedings, the Husband indicated he had never seen that letter before. He maintains that he does not need to go to court. He advised that he was arrested and told to attend an anger management program because he e-mailed the Wife contrary to the restraining order, which is something he has done in the past with no difficulty. Indeed, the record is full of e-mails between the parties.
[75] The Husband is concerned that if the restraining order remains, that the Wife will utilize it when it suits her purposes, as has been demonstrated this past February when she called the police. He would be content with a non-contact order, except with respect to the kids. The Wife is opposed to that.
[76] I see no basis on which to keep the restraining order in place. Since 2011, the facts on which that order were based no longer exist. The Husband has resided at the matrimonial home on at least two separate occasions since then, once for a full year. It is disingenuous for the Wife to now rely on the restraining order, a month or two prior to trial, and have the Husband charged after ignoring it for years.
[77] Accordingly, the restraining order will be terminated.
Conclusion
[78] Based on the foregoing, I make the following orders:
a) A divorce judgment shall issue;
b) The restraining order of Justice Miller of September 16, 2011 is hereby vacated, effective immediately, and is no longer of any force or effect;
c) The Respondent Husband, Bob Nieuwenhuysen, shall pay spousal support to the Applicant Wife, Diane Nieuwenhuysen, in the amount of $3,300 per month commencing September 1, 2019, and continuing on the 1st day of each month that follows, until a court orders otherwise;
d) The Respondent Husband shall name the Applicant Wife the irrevocable beneficiary of his life insurance policy at work, which is the equivalent of two years’ salary, as security for his spousal support obligations. He shall provide proof of this designation within 30 days of the judgment;
e) A support deduction order shall issue;
f) The OMERS Pension of the Respondent Husband shall be divided equally between the parties as of the date of separation as per the Statement of Family Law Value prepared by OMERS. The parties shall cooperate and sign all necessary paperwork;
g) The Applicant Wife shall pay to the Respondent Husband the sum of $25,513.52 which shall be paid from her share of the proceeds of the sale of the matrimonial home, calculated as follows (see Schedule “E”):
The Respondent Husband shall be credited for one-half of his payment of the mortgages, line of credit and property tax in the sum of $83,857.50;
The Applicant Wife shall be credited for one-half of her payment of the line of credit in the sum of $3,629.50;
The Respondent Husband shall be credited for all utility bills paid on behalf of the Wife, in the sum of $21,440.72;
The Respondent Husband shall be credited for the spousal support cash payments made from the date of separation, fixed in the sum of $37,135;
The Applicant Wife shall be credited for spousal support arrears, fixed in the sum of $176,936.40;
The Applicant Wife shall be credited for child support arrears, fixed in the sum of $45,592;
The Respondent Husband shall be credited for an equalization payment owed to him, fixed in the sum of $32,740;
The Applicant Wife shall be credited for capital improvements made to the matrimonial home, fixed in the sum of $6,000;
The Respondent Husband shall be credited for the sum of $4,140 for monies improperly taken from his RRSP account; and
The Respondent Husband shall be credited for the sum of $27,331.16, being his share of the investment account improperly taken by the Wife.
h) When the sale of the matrimonial home closes, all registered mortgages, joint lines of credit, property tax arrears, utility bills, real estate commission and real estate legal fees, and any liens associated with home improvements, will be deducted from the proceeds;
i) Any other adjustments that result from my Endorsement of March 8, 2019, shall also be deducted in accordance with that Endorsement;
j) The remaining proceeds will be notionally equally divided;
k) Any registered lien by Legal Aid will be paid from the Wife’s notional share of the proceeds of sale;
l) The sum of $25,513.52 shall come from the Wife’s notional share, in accordance with paragraph 78(g) herein; and
m) The remaining proceeds will then be released to the parties.
[79] The parties are encouraged to resolve the issue of costs between themselves. If they are not able to do so, both parties may serve and file their written submissions on costs, limited to two pages, single sided and double spaced, exclusive of a costs outline, offers and case law, no later than 4:30 p.m. on August 30, 2019. Responding submissions, with the same size restrictions, may be served and filed by 4:30 pm. on September 13, 2019.
Fowler Byrne J.
Released: August 14, 2019
SCHEDULE "A"
| Month | Child Support Owing | Spousal Support Owing |
|---|---|---|
| Mar-11 | 0.00 | 0.00 |
| Apr-11 | 0.00 | 0.00 |
| May-11 | 0.00 | 0.00 |
| Jun-11 | 0.00 | 0.00 |
| Jul-11 | 0.00 | 0.00 |
| Aug-11 | 1,420.00 | 1,652.00 |
| Sep-11 | 1,420.00 | 1,652.00 |
| Oct-11 | 1,420.00 | 1,652.00 |
| Nov-11 | 1,420.00 | 2,017.00 |
| Dec-11 | 1,420.00 | 2,017.00 |
| Jan-12 | 1,542.00 | 2,247.00 |
| Feb-12 | 1,542.00 | 2,247.00 |
| Mar-12 | 1,542.00 | 2,247.00 |
| Apr-12 | 1,542.00 | 2,247.00 |
| May-12 | 1,542.00 | 2,247.00 |
| Jun-12 | 1,542.00 | 1,891.00 |
| Jul-12 | 1,542.00 | 1,891.00 |
| Aug-12 | 1,542.00 | 1,891.00 |
| Sep-12 | 1,542.00 | 1,891.00 |
| Oct-12 | 1,542.00 | 1,891.00 |
| Nov-12 | 1,542.00 | 1,891.00 |
| Dec-12 | 1,542.00 | 1,891.00 |
| Jan-13 | 1,005.00 | 3,247.00 |
| Feb-13 | 1,005.00 | 3,247.00 |
| Mar-13 | 1,005.00 | 3,247.00 |
| Apr-13 | 1,005.00 | 3,247.00 |
| May-13 | 1,005.00 | 3,247.00 |
| Jun-13 | 1,005.00 | 3,247.00 |
| Jul-13 | 1,005.00 | 3,247.00 |
| Aug-13 | 1,005.00 | 3,247.00 |
| Sep-13 | 1,005.00 | 3,247.00 |
| Oct-13 | 1,005.00 | 3,247.00 |
| Nov-13 | 1,005.00 | 3,247.00 |
| Dec-13 | 1,005.00 | 3,247.00 |
| Jan-14 | 1,116.00 | 3,170.00 |
| Feb-14 | 1,116.00 | 3,170.00 |
| Mar-14 | 1,116.00 | 3,170.00 |
| Apr-14 | 1,116.00 | 3,170.00 |
| May-14 | 1,116.00 | 3,170.00 |
| Jun-14 | 1,116.00 | 3,170.00 |
| Jul-14 | 1,116.00 | 3,170.00 |
| Aug-14 | 1,116.00 | 3,170.00 |
| Sep-14 | 3,554.00 | |
| Oct-14 | 46,592.00 | 3,554.00 |
| Nov-14 | 3,554.00 | |
| Dec-14 | 3,554.00 | |
| Jan-15 | 3,121.00 | |
| Feb-15 | 3,121.00 | |
| Mar-15 | 3,121.00 | |
| Apr-15 | 3,121.00 | |
| May-15 | 3,121.00 | |
| Jun-15 | 3,121.00 | |
| Jul-15 | 3,121.00 | |
| Aug-15 | 3,121.00 | |
| Sep-15 | 3,121.00 | |
| Oct-15 | 3,121.00 | |
| Nov-15 | 3,121.00 | |
| Dec-15 | 3,121.00 | |
| Jan-16 | 3,192.00 | |
| Feb-16 | 3,192.00 | |
| Mar-16 | 3,192.00 | |
| Apr-16 | 3,192.00 | |
| May-16 | 3,192.00 | |
| Jun-16 | 3,192.00 | |
| Jul-16 | 3,192.00 | |
| Aug-16 | 3,192.00 | |
| Sep-16 | 3,192.00 | |
| Oct-16 | 3,192.00 | |
| Nov-16 | 3,192.00 | |
| Dec-16 | 3,192.00 | |
| Jan-17 | 3,256.00 | |
| Feb-17 | 3,256.00 | |
| Mar-17 | 3,256.00 | |
| Apr-17 | 3,256.00 | |
| May-17 | 3,256.00 | |
| Jun-17 | 3,256.00 | |
| Jul-17 | 3,256.00 | |
| Aug-17 | 3,256.00 | |
| Sep-17 | 3,256.00 | |
| Oct-17 | 3,256.00 | |
| Nov-17 | 3,256.00 | |
| Dec-17 | 3,256.00 | |
| Jan-18 | 3,472.00 | |
| Feb-18 | 3,472.00 | |
| Mar-18 | 3,472.00 | |
| Apr-18 | 3,472.00 | |
| May-18 | 3,472.00 | |
| Jun-18 | 3,472.00 | |
| Jul-18 | 3,472.00 | |
| Aug-18 | 3,472.00 | |
| Sep-18 | 3,472.00 | |
| Oct-18 | 3,472.00 | |
| Nov-18 | 3,472.00 | |
| Dec-18 | 3,472.00 | |
| Jan-19 | 3,300.00 | |
| Feb-19 | 3,300.00 | |
| Mar-19 | 3,300.00 | |
| Apr-19 | 3,300.00 | |
| May-19 | 3,300.00 | |
| Jun-19 | 3,300.00 | |
| Jul-19 | 3,300.00 | |
| Aug-19 | 3,300.00 | |
| 294,894.00 |
Form 13B: Net Family Property Statement
ONTARIO Superior Court of Justice, Family Court Court File Number: FS-17-88738-00
(1) Applicant(s) Diane Nieuwenhuysen (Wife)
(3) Respondent(s) Bob Nieuwenhuysen (Husband)
My name is (full legal name) Bob Nieuwenhuysen
(1) The valuation date for the following material is (date) March 10, 2011
(2) The date of marriage is (date) July 10, 1993
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND
| Nature & Type of Ownership (State percentage interest) | Address of Property | WIFE | HUSBAND |
|---|---|---|---|
| Matrimonial Home | 4 Basildon Cres., Brampton (to be sold in Sept. 2019) | ||
| 15. Totals: Value of Land | $0.00 | $0.00 |
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
| Item | Description | WIFE | HUSBAND |
|---|---|---|---|
| Household goods & furniture | (no independent evidence of possession provided) | $0.00 | $0.00 |
| Cars, boats, vehicles | 2005 Ford Focus | $6,000.00 | |
| 1998 Toyota Tercel | $500.00 | ||
| 1998 Ford Probe (sold prior to separation) | |||
| Jewellery, art, electronics, tools, sports & hobby, equipment | Tri-gold bracelet | $250.00 | |
| Engagement Ring | $4,000.00 | ||
| Wedding Ring | $250.00 | ||
| Other special items | Computers/monitors (no evidence of value provided) | $0.00 | $0.00 |
| Rock Collection (no evidence of value given) | $750.00 | $750.00 | |
| Silver Coins | $1,200.00 | ||
| 16. Totals: Value of General Household Items and Vehicles | $11,750.00 | $1,950.00 |
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
| Category (Savings, Checking, GIC, RRSP, Pensions, etc.) | Institution | Account Number | WIFE | HUSBAND |
|---|---|---|---|---|
| RRSP/LIRA | RBC | 69031733 | $32,559.82 | |
| RRSP | RBC | 69432165 | $6,313.49 | |
| RRSP | RBC | 69430720 | $10,608.47 | |
| Savings | RBC | 5085188 | $787.00 | |
| Savings | RBC | 5091848 | $6,752.15 | |
| Savings | RBC | 5105689 | $5,000.00 | |
| Chequing (joint) | RBC | 5007133 | $981.82 | $981.82 |
| Savings (joint) | RBC | 5105002 | ||
| Investment Account (joint) | RBC | 68080267 | $49,987.90 | $49,987.90 |
| Investment Account | RBC | 68554806 | $14,876.00 | |
| Pension | OMERS – DIVIDED AT SOURCE | |||
| 17. Totals: Value of Accounts And Savings | $117,258.18 | $61,578.19 |
PART 4(d): LIFE AND DISABILITY INSURANCE
| Company, Type & Policy No. | Owner | Beneficiary | Face Amount ($) | WIFE | HUSBAND |
|---|---|---|---|---|---|
| Region of Peel | Husband | Wife/new girlfriend | 2x annual salary | ||
| 18. Totals: Cash Surrender Value Of Insurance Policies | $0.00 | $0.00 |
PART 4(e): BUSINESS INTERESTS
| Name of Firm or Company | Interests | WIFE | HUSBAND |
|---|---|---|---|
| 19. Totals: Value Of Business Interests | $0.00 | $0.00 |
PART 4(f): MONEY OWED TO YOU
| Details | WIFE | HUSBAND |
|---|---|---|
| 20. Totals: Money Owed To You | $0.00 | $0.00 |
PART 4(g): OTHER PROPERTY
| Category | Details | WIFE | HUSBAND |
|---|---|---|---|
| 21. Totals: Value Of Other Property | $0.00 | $0.00 |
| WIFE | HUSBAND | |
|---|---|---|
| 22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21]) | $129,008.18 | $63,528.19 |
(3) Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
| Category | Details | WIFE | HUSBAND |
|---|---|---|---|
| 23. Totals: Debts And Other Liabilities, (TOTAL 2) | $0.00 | $0.00 |
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
| Category and Details | WIFE | HUSBAND |
|---|---|---|
| Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation). | ||
| General household items and vehicles | ||
| Bank accounts and savings | ||
| Life and disability insurance | ||
| Business interests | ||
| Money owed to you | ||
| Other property | ||
| 3(a) TOTAL OF PROPERTY ITEMS | $0.00 | $0.00 |
| Debts and other liabilities (Specify) | ||
| 3(b) TOTAL OF DEBTS ITEMS | $0.00 | $0.00 |
| 24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3) | $0.00 | $0.00 |
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”
| Item | WIFE | HUSBAND |
|---|---|---|
| Gift or inheritance from third person | ||
| Income from property expressly excluded by donor/testator | ||
| Damages and settlements for personal injuries, etc. | ||
| Life insurance proceeds | ||
| Traced property | ||
| Excluded property by spousal agreement | ||
| Other Excluded Property | ||
| 26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4) | $0.00 | $0.00 |
| WIFE | HUSBAND | |
|---|---|---|
| TOTAL 2: Debts and Other Liabilities (item 23) | $0.00 | $0.00 |
| TOTAL 3: Value of Property Owned on the Date of Marriage (item 24) | $0.00 | $0.00 |
| TOTAL 4: Value of Excluded Property (item 26) | $0.00 | $0.00 |
| TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4) | $0.00 | $0.00 |
| WIFE | HUSBAND | |
|---|---|---|
| TOTAL 1: Value of Property Owned on Valuation Date (item 22) | $129,008.18 | $63,528.19 |
| TOTAL 5: (from above) | $0.00 | $0.00 |
| TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5) | $129,008.18 | $63,528.19 |
(4) EQUALIZATION PAYMENTS
| Wife Pays Husband | Husband Pays Wife |
|---|---|
| $32,740.00 | $0.00 |
SCHEDULE "D"
Post Separation Payments for Matrimonial Home:
| Year | Mortgages (Paid by Husband) | Line of Credit (Paid by Husband) | Property Taxes (Paid by Husband) | Utility Bills (Paid by Husband) | Line of Credit (Paid by Wife) |
|---|---|---|---|---|---|
| 2011 | $953.00 | ||||
| 2012 | $13,976.60 | $3,000.00 | $2,806.73 | $2,290.00 | |
| 2013 | $16,226.06 | $3,550.00 | $3,809.00 | $2,302.00 | |
| 2014 | $15,935.57 | $759.27 | $3,620.00 | $2,414.00 | $1,714.00 |
| 2015 | $16,688.00 | $2,122.93 | $2,880.00 | $2,858.00 | |
| 2016 | $17,622.54 | $2,281.45 | $3,625.00 | $3,165.00 | |
| 2017 | $17,622.54 | $2,601.60 | $3,880.00 | $3,060.00 | |
| 2018 | $17,921.00 | $3,145.43 | $4,225.00 | $3,350.00 | |
| 2019* | $11,335.04 | $2,096.96 | $2,600.00 | $2,240.00 | |
| $127,327.35 | $13,007.64 | $27,380.00 | $23,702.73 | $7,259.00 |
*Jan. to Aug. 2019 mortgage: based on average mortgage payment per month in 2018 of $1,416.88 line of cred: based on average month in 2018 of $262.12 taxes: based on 2018 average monthly payment of $325 utility bills: based on 2018 average monthly payment of $280
SCHEDULE "E"
| Payments | Credit Husband | Credit Wife |
|---|---|---|
| Mortgages, Line of Credit & Property Tax | $83,857.50 | $3,629.50 |
| Utility Bills | $21,440.72 | |
| Spousal Support Paid | $37,135.00 | |
| Spousal Support Owed | $176,936.40 | |
| Child Support Owed | $45,592.00 | |
| Equalization Owed | $32,740.00 | |
| Capital Expenses for Home | $6,000.00 | |
| Money taken from RRSP | $4,140.00 | |
| Money taken from joint Investment acct. | $27,331.16 | |
| $206,644.38 | $232,157.90 | |
| $25,513.52 |
COURT FILE NO.: FS-17-88738-00
DATE: 20190814
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANE J. NIEUWENHUYSEN
Applicant
- and -
BOB NIEUWENHUYSEN
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: August 14, 2019