COURT FILE NO.: 41215/18

DATE: 2019-08-30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLEY ANNE MATHERS Applicant

– and –

MARK KENNETH CROWLEY Respondent

Counsel: Fadwa Yehia, for the Applicant Mark Crowley, Self-represented

HEARD: April 10-12, 15, 16 & May 21, 2019

BEFORE: Kurz J.

Introduction

[1] The Applicant, Leslie Anne Mathers (“Ms. Mathers”) and the Respondent, Mark Crowley (Mr. Crowley”), married on June 3, 1993. They had two children, who are now adults. They cannot agree on when they separated. Ms. Mathers says that their date of separation is March 1, 2015, when she decided that their marriage was effectively over. Mr. Crowley says that the date is April 1, 2017, when Ms. Mathers moved out of the matrimonial home. The parties are also unable to determine whether Mr. Crowley is entitled to spousal support and if so, how much should be paid and for what period of time.

[2] When this six-day trial began, the parties were asking the court to determine numerous financial issues that they finally conceded or resolved during the course of the trial. They ultimately agreed upon or conceded the following:

1. Mr. Crowley withdrew his claims for loss of economic opportunity, investment opportunity, and damages, arising out of his plan to partially demolish, rebuild, and sell the former matrimonial home for profit.

2. Ms. Mathers withdrew her claims to a trust interest in Mr. Crowley’s Ancaster home and for retroactive support for their son, Christian.

3. The parties agreed that the value of the jointly owned matrimonial home on either party’s separation date is irrelevant to the determination of an equalization payment. Coats J. had previously ordered that the home be listed and sold. During the course of the trial, I granted an order that approved a $1.35 million offer for the sale of the matrimonial home.

4. With one exception, the parties are equally liable for the amount owing on their joint home equity line of credit (“HELOC”) on the date of their separation. The exception is that Mr. Crowley is liable for the $20,000 that he removed from the HELOC to pay towards his planned tear down and rebuild of the matrimonial home.

5. Mr. Crowley is responsible for all the post-separation withdrawals that he made from the parties’ HELOC. Those withdrawals went towards his Ancaster property and his living expenses. Ms. Mathers’ chartered business valuator (“CBV”), Ryan Bensen, calculated that the figure that Mr. Crowley owes is $277,999. Mr. Crowley ultimately conceded the veracity of this calculation. This outstanding amount shall come out of Mr. Crowley’s share of the proceeds of sale of the matrimonial home.

6. In addition, Mr. Crowley conceded the veracity of Mr. Bensen’s calculation of other post separation adjustments: $39,624 if the date of separation is March 1, 2015, as argued by Ms. Mathers, or $20,442 if the date of separation is April 1, 2017, as argued by Mr. Crowley.

7. Mr. Crowley is responsible for all carrying costs of the HELOC that were paid by Ms. Mathers after the parties’ separation. This is in accordance with the terms of an interim order of Coats J. that Mr. Crowley does not question.

8. Mr. Crowley is responsible for all utility expenses on the matrimonial home from April 1, 2017, the date that Ms. Mathers moved out of that home.

9. If the court agrees with Mr. Crowley that the date of separation is April 1, 2017, the value that should be ascribed to his interest in his Ancaster property on that date is the $35,000 deposit he placed on the property. If the date of separation is March 1, 2015, no value need be ascribed as he made his purchase after that date.

10. All previous costs awards against Mr. Crowley (which total $23,913.56) will be paid out of his share of the proceeds of sale of the matrimonial home.

11. Ms. Mathers, who has paid all the carrying costs of the matrimonial home (i.e. mortgage, taxes and insurance) since April 1, 2017, would continue to do so until the sale of the home is completed. She will then be paid one half of those costs out of Mr. Crowley’s share of the proceeds of sale of the home. As of April 2019, the figure for those costs is $29,895.

12. The value of the survivor benefit on Mr. Crawley’s pension will be included as a date of separation asset in the calculation of Ms. Mathers’ net family property.

13. After Mr. Bensen gave his testimony at the trial, Mr. Crowley conceded the veracity of the expert’s calculation of the parties’ contingent tax liabilities.

14. As a result of the agreed upon calculations, the equalization payment that Ms. Mathers owes to Mr. Crowley is either:

i. $39,547.27 if the date of separation is March 1, 2015, as argued by Ms. Mathers, or

ii. $61,524.57 if the date of separation is April 1, 2017, as argued by Mr. Crowley.

[3] In light of the parties’ concessions, I am only required to determine the two following issues:

1. What is the date of the parties’ separation for the purposes of equalization and support?

2. Is Mr. Crowley entitled to spousal support, and if so, in what amount?

[4] For the reasons that follow, I accept Ms. Mather’s date of separation: March 1, 2015. I also find that Mr. Crowley is entitled to spousal support on a non-compensatory basis, commencing on August 30, 2018. That is the date that he issued his answer. That pleading provided Mr. Crowley’s first notice of his claim to spousal support. I will require further submissions to determine the details of Ms. Mathers’ spousal support obligations to Mr. Crowley.

Background

[5] The parties met in or about 1991 and began to cohabit in January 1992. They dated for a year and a half before they married on June 4, 1993.

[6] The parties have two adult children. Their oldest child, Meagan Anne Crowley, is 25 years old. She graduated from Laurier University with a B.A. degree. She works for HSBC bank as a corporate banking assistant.

[7] The parties’ second child, Christian Brian Crowley, is now 23 years old. Christian graduated from high school in 2014 and then attended Laurier University, studying environmental business. He obtained a summer job and will be starting a management training program with Aviva Insurance this fall. While Christian attended university, he resided with Ms. Mathers and commuted to school on the days of classes. He seems to have concentrated his classes so that he did not have to commute daily to Waterloo.

[8] Although she worked throughout most of the parties’ marriage, Ms. Mathers describes it as a traditional one. She believes that she took two six-month maternity leaves. She acknowledges that the parties shared responsibility for the children as each worked. But she adds that they divided their responsibilities. She described herself as primarily responsible for work in the home and Mr. Crowley as responsible for things outside of the home, including finances.

[9] Mr. Crowley is an experienced and, by all accounts, capable human resources professional. He earned up to $95,000 per year in that profession. However Mr. Crowley has not worked on a permanent, full-time basis since 2002. That is when he decided to accept a buyout package from his employer, the Worker’s Safety and Insurance Board (“WSIB”). At the time, he was earning about $95,000 per year. When he accepted the WSIB buyout offer, Mr. Crowley did not have another job lined up. That left Ms. Mathers as the sole income earner for the family for a time, particularly after the severance package ran out.

[10] As the sole support for the family, Ms. Mathers wanted Mr. Crowley to take on added domestic responsibilities while she was working. She wanted him to take up the cooking and daycare for the children. This would allow the family to economize while Mr. Crowley was unemployed. He agreed to take on extra cooking but not child care. He wanted to have flexibility while looking for work

[11] Eventually, Mr. Crowley’s meal responsibilities fragmented to the point that he and Ms. Mathers ate their meals separately because she was not satisfied with his efforts.

[12] Over the thirteen years following his acceptance of WSIB’s buyout package, Mr. Crowley worked at a series of temporary positions. When employed, he earned an income that can be annualized at between $75,000 and $95,000 per year. But these were all temporary contracts that expired, leaving Mr. Crowley looking for further work. The precariousness of this employment was always a concern to Ms. Mathers.

[13] In or about early 2015, Mr. Crowley decided to retire to pursue a new passion. He wanted to become a home rebuilder and reseller. In order to support himself, Mr. Crowley chose to start drawing upon his pension. It pays him approximately $33,800 per year. This occurred just after what I find to be the date of separation, March 1, 2015.

[14] Mr. Crowley had never demolished or rebuilt a house. Nor had he taken any formal course of education that would have prepared him for his intended new line of work. However, he felt qualified to enter the home rebuild/resale profession because of some building and renovation experience when he was young. Starting at the age of ten, he helped to build his family cottage, a project that was never completed in the 30 years since it started. As a student, he had summer work building decks. At some point, he helped with the renovations to his parents’ home. He began but did not finish some renovations to the matrimonial home.

[15] Moreover, Mr. Crowley further felt that his work in labour relations at the WSIB and afterwards, as well as his later work on advertising for some building suppliers, offered an additional qualification for his intended new profession. He felt that this work positioned him to manage all aspects of the rebuild project. He would use subcontractors to perform the work that he was unable to do himself.

[16] Mr. Crowley felt that his first project should be the matrimonial home. He planned to tear much of it down, only to rebuild it as a luxury home that he would resell for great profit. Ms. Mathers refused to go along with this plan. Feeling that he was ill-equipped for the job, she refused to place her nest egg interest in the matrimonial home at risk. Instead, she insisted that he buy out her interest in the home before he could use it for his new venture.

[17] Starting between March and April 2015 Mr. Crowley spent up to 3-4 days per week in self-education and work towards his matrimonial home rebuild project. He taught himself to use a computer - aided design program to prepare design plans and work with surveyors. Sometime in 2016, he obtained the approval of the local committee of adjustments for the variances from the town plan required to build his renovated home. That approval had expired by the time of the trial.

[18] Mr. Crowley also worked on financing the project. By his estimate he required $1.5 million (although as I set out below, I believe that he required even more). He stated that financing was not hard to find, but he appears not to have found anything except conditional financing. He stated that his financing was conditional on a separation agreement but offered no independent evidence of the firmness of that financing or the separation agreement terms required to firm up his financing. At the end of the day, his financing never came through.

[19] Despite all of his apparent work, Mr. Crowley was never able to get the project beyond a very preliminary stage. He lacked both the finances and the ability to advance the project any further. Mr. Crowley blames Ms. Mathers and this litigation for his lack of success. But as I set out below, one key reason that Mr. Crowley was unable to get his matrimonial home project off the ground was a decision that he alone made. He chose to spend much of the money available to him through the parties’ joint line of credit (serviced exclusively by Ms. Mathers, subject to readjustment at this trial) on a second home that he purchased for himself in Ancaster, Ontario. In doing so, he spread his limited finances very thinly.

[20] As Mr. Crowley was never in a position to buy Ms. Mathers out of her interest in the matrimonial home and proceed with his renovation/sale project unless she accepted his settlement terms, the home was sold pursuant to two orders of this court. Since the date of separation, Mr. Crowley has been unable to engage in any remunerative activity in either his chosen line of work or in any job. Since in or about March or April, 2015, he has been living on his pension income of approximately $33,800 per year plus withdrawals from the parties’ HELOC.

[21] Mr. Crowley testified that he also looked for employment between 2015 and the time of the trial, but never found a “suitable” opportunity. He says that he has recently applied for jobs at two local big box stores, with no success. He offered no evidence but his word of those job searches.

Issue No. 1: What is the date of the parties’ separation for the purposes of equalization and support?

Applicable Law

[22] The parties ask the court to choose between their competing March 1, 2015, and April 1, 2017, dates of separation for the purposes of equalization and support. That decision will help determine the details of Ms. Mathers’ equalization payment to Mr. Crowley (as it will crystalize the date upon which that payment was due). It will also determine the date from which post-separation adjustments must be made and hence determine the quantity of those adjustments. Finally, it is relevant to the granting of a divorce and establishing the extent of Mr. Crowley’s claim to spousal support.

[23] Under s. 4(1) of the Family Law Act (“FLA”), the definition of the term “valuation date”, a synonym for date of separation for the purposes of equalization, is the earliest of a number of dates. The relevant date for the purposes of this and most other cases is set out in s. 4(1)(1):

The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

[24] As Corbett J. wrote in Strobele v. Strobele, [2005] O.J. No. 6312 (S.C.J.), reversed on other grounds, 2006 O.J. No. 4220 (O.C.A.) at para. 29 “[t]he goal under the FLA is to fix the date on which the economic partnership should fairly be terminated.”

[25] It is also necessary to determine the date of separation under the Divorce Act (“DA”). The length of the parties’ cohabitation is relevant to the determination of spousal support (see s. 15.2(4)(a) of the Divorce Act and the Spousal Support Advisory Guidelines (“SSAG”)). It is also necessary to determine the date of the parties’ separation in order to determine their eligibility for a divorce. Subsection 8(1) of the Divorce Act allows for a divorce on the basis of a breakdown of the marriage if:

… the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding.

This is by far the most frequently relied upon ground for divorce and the one relied upon in this case.

[26] While the two statutory definitions are not identical (see Strobele v. Strobele at para. 29), for all practical purposes in this case they point to the same date (see Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117 (H.C.), at paras. 6-7, affd. [1992] O.J. No. 3563 (C.A.)).

[27] Oswell is considered the leading case in setting out the criteria for determining the date of separation. In that case, Weiler J., as she then was, looked to a variety of indicia that may apply to that determination. It is not necessary that all apply in any single case. It is even possible that some will contradict others in the unique facts of a case. All the relevant factors must be considered.

[28] The criteria described by Weiler J. at paras. 6-8 of Oswell are the following:

[28]

a) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms … Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart…

b) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium … or of repudiating the marital relationship…

c) The absence of sexual relations is not conclusive but is a factor to be considered…

d) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

e) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above…

f) [T]he method in which the spouse has filed income tax returns …

g) If a mediator is consulted, the purpose for which the mediator was consulted …

h) When a spouse makes plans for his or her assets as a separated person, the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act, 1986.

[Citations omitted.]

[29] In Warren v. Warren, 2019 ONSC 1751, Kristjanson J. aggregated several authorities on the objective criteria that determine whether there is a separation with no reasonable prospect of resuming cohabitation. She cited several factors set out in Oswell, but at para. 7, she cited the following additional factors:

e) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties;

f) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.) and the sharing of assets. This includes a consideration of whether steps were taken to separate the parties' assets, the continued use of a joint safety deposit box, joint credit cards, and bank accounts, spousal RRSP contributions, use of shared vehicles, and making plans for his or her assets as a separated person;

g) How the parties referred to themselves in documents, including income tax returns, and to friends and families;

h) Steps taken towards the legal termination of their relationship;

i) Meal pattern, including eating meals together and performance of household tasks, including washing clothes, cleaning and shopping;

j) Efforts to resume cohabitation (mediation, counselling, property, purchase or lease, “meaningful discussion … as to how or when their marriage may be put back together”) … [authorities omitted].

[30] Kristjanson J. described the objective test for determining the date of separation at para. 6 as follows:

The issue is whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation. A determination of a reasonable prospect of the resumption of cohabitation, or reconciliation, is based on the intention of the parties. The true intention of the parties requires a consideration of objective factors and may differ from stated intentions.

[31] While the joint intentions of the parties are relevant to the prospects of reconciliation, that does not mean that they must jointly decide to separate. The decision to separate may be a unilateral one (see O’Brien v. O’Brien, 2013 ONSC 5750, at para. 50). It may even be made over the objections of the other spouse.

[32] In Strobele v. Strobele (above), at para 32, Corbett J. described the other side of that same coin when he wrote: "[g]roundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship." In saying this, Corbett J. pointed to the objective component of the test. While one party may feel that there is no separation, the other may have taken steps that, objectively viewed, demonstrate a permanent separation.

[33] In O’Brien, McDermot J. stated at para. 52 that the date of separation may, but will not necessarily, involve an “… unequivocal act by the separating spouse indicating that there [sic] he or she wishes to separate without the possibility of reconciliation.”

[34] That being said, the court may look to the conduct of the parties after the date that a party announces the intention to separate. McDermot J. found in O’Brien that the date of separation was over a year after the date that the husband announced of his intention to separate. McDermot J. looked to a host of other factors before and after the date of that announcement, which showed that the separation was not final on the date that the husband indicated his intention to separate.

[35] As Kristjanson J. aptly concluded in Warren at para. 7:

Each marriage is different. The court must evaluate whether in this particular marriage, taking into account all of the circumstances, including the objective factors [as set out above], a reasonable person would conclude that the parties have separated with no reasonable prospect of resuming cohabitation.

Determination of these Parties’ Date of Separation

[36] Mr. Crowley’s choice of April 1, 2017, as the date of separation arises out of his view that the move by Ms. Mathers and the parties’ adult children from the matrimonial home represented what McDermot J. described as an “unequivocal act”. Until that date, Mr. Crowley testified, everything between the parties was what he considered to be normal. Their relationship was “… as it had been for the past twenty-three years”.

[37] The parties, for example, continued to socialize with their friends. They filled out their tax returns as “married”, both using the matrimonial home as their principal residence. In fact, they remained financially interdependent until September 2017, six months after Mr. Crowley’s separation date. Until then, they shared the same bank account, which was used to pay their debts. Mr. Crowley continued to use the joint HELOC, even after that date. At no time did either party form an outside romantic relationship.

[38] Ms. Mathers does not deny these facts, although she offers an explanation for some of them. Her narrative regarding her March 1, 2015, separation date lacks the virtue of a clear-line event that substantiates her proffered separation date. But as I state below, it does have the virtue of Mr. Crowley’s agreement on a number of essential elements. It also makes sense in the context of the parties’ personalities and their relationship.

[39] Ms. Mathers testified that the genesis of their separation arose in 2013, when she lost her job. She was concerned about how the family would financially survive. Mr. Crowley was only holding down a series of temporary contracts, which made his prospects of continuing employment tenuous. He had also had failed, in her view, to take up the slack in domestic work (a claim he denies). She felt that Mr. Crowley had to step-up to obtain permanent, full-time employment in the absence of her income.

[40] At that time, Ms. Mathers reminded Mr. Crowley of the promise that he had made over a decade earlier. Then, contrary to her wishes, he took a buy-out package from the WSIB. That package voluntarily terminated his employment from a job that paid him about $95,000 per year. At the time of the buy-out, he promised her that he would drive a truck if necessary to support the family. When Ms. Mathers lost her job in 2013, she asked him to honour the promise. He refused. While she wasn’t unemployed for long, all of those events, taken together, caused her to have what she described as an emotional “breakdown”.

[41] At some point in their discussions, Ms. Mathers asked for a divorce. They negotiated the terms of their separation in a shambolic fashion over the next few years. They exchanged drafts of separation agreements without a consensus on its terms. Mr. Crowley felt that there was no separation without agreement on the terms of a separation agreement. Ms. Mathers felt otherwise.

[42] By March 1, 2015, Ms. Mathers could no longer take the indecision about the financial terms of their separation. She decided that they were separated, with or without a separation agreement. However, she remained under the same roof and even shared the same bed with Mr. Crowley (albeit absent intimate relations) after her separation date.

[43] Ms. Mathers relies on the following additional facts, which Mr. Crowley either admits or does not deny, which offer context to her claim that the parties had effectively separated by March 1, 2015:

1. Their intimate relationship ended well before her separation date (neither party is able to offer a specific date for the cessation of their sexual relationship).

2. Commencing in 2014 and continuing afterward, the parties intermittently negotiated the financial terms of their separation agreement. Mr. Crowley prepared and presented to Ms. Mathers many versions of his draft separation agreement.

3. On February 16, 2014, the 20^th birthday of their daughter, Megan, Mr. Crowley informed the parties’ children that he and their mother were separating. He did this without having consulted with Ms. Mathers. However there is no evidence that either party ever disabused the parties’ children of the notion of separation.

4. After this, Ms. Mathers started to look for a new place. But as she testified, she realized that she could not buy a new home until the old one was sold.

5. While the parties slept in the same bedroom and even on the same bed until 2016, they did not jointly choose to sleep together. In fact, Ms. Mathers had asked Mr. Crowley to leave the bedroom but he refused. In the face of that refusal, Ms. Mathers was unwilling to cede either the master bedroom or even their bed to him. A stalemate ensued. Each party took their own side of the bed’s imaginary Maginot Line until sometime in 2016, when she moved out of their bedroom.

6. Ms. Mathers then slept in the sunroom of the matrimonial home for some months before she had another “breakdown”. She explained that this breakdown occurred after she questioned why she was, in her view, doing all the work both outside and inside the home, while Mr. Crowley slept in the master bedroom.

7. By 2016 Ms. Mathers prevailed on Mr. Crowley to move from the master bedroom into the basement. She then returned to the master bedroom. She remained that bedroom’s solitary inhabitant until April 1, 2017, when she and the parties’ children moved out of the matrimonial home.

8. Ms. Mathers and the children did not take their meals together with Mr. Crowley after March 2015.

9. Although the parties socialized together with some friends after Ms. Mathers’ separation date, they never travelled together to meet those friends. They took separate cars. Neither party offered evidence as to what, if anything, was told to their friends about the state of their relationship or to explain their separate travel arrangements.

10. From March 2015 onward, Ms. Mathers refused to socialize with Mr. Crowley’s family or attend at his family’s cottage.

11. Ms. Mathers’ tax returns described her as married only because Mr. Crowley, having the greater financial acumen, was always the one who prepared them.

12. Mr. Crowley testified that he was not really concerned with the separation date. He only wanted to know what the final financial tally would be. In his view, a financial settlement between the parties was a prerequisite to separation.

13. Mr. Crowley signed the agreement to buy his present Ancaster home prior to April 1, 2017.

14. Ms. Mathers was unwilling to join Mr. Crowley in using the matrimonial home as the launching pad for his proposed career as a home rebuilder/reseller. She insisted that he buy out her share of the home before he proceeded. That meant that he alone had to accept all the risk and enjoy all the reward of his plan.

[44] In considering all the factors described above, I observe that elements of the test regarding the date of separation cut both ways. The following facts favour Mr. Crowley:

1. The clear date of physical separation on April 1, 2017. Until then the parties lived in the same home.

2. The fact that they shared the same bed until 2016, which is after Ms. Mathers’ separation date.

3. Both parties’ tax returns described them as married. The fact that Mr. Crowley alone prepared them does not fully discount this factor because it points to some element of continuing interdependence between the parties.

4. Similarly, the parties continued to share the same banking arrangements, with a joint account used to pay the bills of both parties and a joint line of credit funding Mr. Crowley’s Ancaster home purchase and post- September 2017 living expenses.

5. The absence of evidence that the parties announced their separation to anyone but their children prior to April 1, 2017.

6. Neither party retained matrimonial counsel before April 1, 2017.

[45] On the other hand, there are far more factors that favour Ms. Mathers’ narrative, particularly the following facts:

1. They agreed to separate in 2013.

2. They had no intimate relations after that date.

3. Mr. Crowley unilaterally announced the plan to separate to the parties’ children in February 2014. Neither party ever withdrew that announcement.

4. Starting in 2013, the parties negotiated the terms of a separation agreement. Mr. Crowley even prepared numerous drafts of potential separation agreements. This illustrates an understanding that they were leading separate lives, the only question being under what terms.

5. Ms. Mathers attempted to get Mr. Crowley to leave the master bedroom before her departure from that room in 2016. The fact that neither would budge before 2016 bespeaks their stubbornness rather than their ongoing desire to continue to cohabit.

6. The parties’ socializing with old friends was done with each arriving separately. Their friends had to be aware of the fact. That is far from a representation that they were still together, although it is not proof of separation either.

7. Ms. Mathers refused to socialize with Mr. Crowley’s family or attend at his family’s cottage after her March 1, 2015 separation date. This change in her conduct represents a clear date, demarking a change in their relationship.

8. The parties’ tax returns and financial intermingling between March 1, 2015, and April 1, 2016, are not determinative of the date of separation. In fact, their financial intermingling did not end with their April 1, 2017, physical separation. They shared a joint bank account until in or about September 2017, when Ms. Mathers stopped depositing her pay into their joint account. Mr. Crowley felt entitled to continue to draw on the HELOC into 2018 and 2019, as the $277,999 that he removed from the HELOC attests. These facts demonstrate that the April 1, 2017, date does not represent as clear a line of financial separation as Mr. Crowley may wish the court to find.

9. Even before April 1, 2017, Mr. Crowley withdrew $35,000 from the joint HELOC to make a down payment on his new and solely owned home in Ancaster. He did so without telling Ms. Mathers, who was jointly liable for the HELOC. This is an indication that he was planning and had already taken steps toward a separate financial and physical life.

10. Ms. Mathers’ unwillingness to allow Mr. Crowley to use the matrimonial home as the launching pad for his proposed home rebuilding career is a very telling point. It bespeaks her desire to separate the parties’ finances, particularly regarding their most valuable asset. He agreed to buy her out. But that buy-out had to be a part of a global settlement that the parties were unable to agree upon. Nonetheless, both were making plans for their assets as separated persons well before April 1, 2017.

11. Thus, the parties may have continued to share a bank account and other aspects of financial interdependence for months past the date of their physical separation. But that state of affairs was the result of simple inertia born of their years together, their inability to agree on the financial terms of their separation, and the fact that, based on the evidence at trial, neither had retained a lawyer to deal with their matrimonial issues before April 1, 2017.

12. Mr. Crowley admitted in his testimony that he was not concerned with a date of separation per se, only the result of the determination of the date. But he was looking to finalize the financial details of their separation even before Ms. Mathers’ 2015 valuation date.

13. In other words, Mr. Crowley understood, beginning in 2013, that he and Ms. Mathers had decided to separate. However, he did not believe that their separation was official until they agreed to all the financial terms of their separation. Therefore, he did not concern himself with anything but the financial details that allowed him to start his new career. His mistake of law does not change the facts on the ground of their separation.

14. There is no evidence of any reconciliation discussions between the parties after they decided to separate in 2013 and began to negotiate the terms of their separate lives.

[46] I find that Ms. Mathers’ recitation of factors in favour of her proposed separation date to be the more persuasive one. I do not make that finding on the basis of credibility. Each party testified as honestly as he or she could. Neither attempted to mislead the court. In fact, as set out above, they agree with each other regarding many material facts. However, Ms. Mathers has offered the court far more reasons to accept her separation date that Mr. Crowley has done. I find each of her grounds to be compelling.

[47] Further, I see a difference in the reliability of their evidence. I find that Mr. Crowley has shown himself to be less realistic in his analysis of the facts than Ms. Mathers and thus that his evidence is not as reliable as that of Ms. Mathers. Some of the reasons for this finding are set out below while others are already mentioned above. In particular:

1. Mr. Crowley was candid in admitting that he was not concerned with a separation date per se. he was concerned only with the result. Further he felt that there could be no real separation without a financial agreement.

2. Mr. Crowley did not demonstrate a realistic understanding of the state of his relationship with Ms. Mathers or the consequences of his financial decisions.

3. For example, Mr. Crowley seems to have been oblivious to Ms. Mathers’ concerns about her financial insecurity and her breakdowns. I accept the honesty of her testimony about her distress about the parties’ precarious financial standing arising from Mr. Mather’s employment and financial decisions. Yet nothing in his testimony even acknowledged the existence of a tension on those issues between him and Ms. Mathers. He seems to have been oblivious to those concerns. That is not a moral judgment; it is an observation of his awareness of what was happening in his relationship with Ms. Mathers.

4. As I set out below, Mr. Crowley showed himself to be unrealistic in his career plans and the manner in which he carried out those plans. Even at trial, he was unable to see that his impractical financial decisions placed himself into his present unenviable financial position.

5. Throughout this trial, Mr. Crowley was unwilling to concede numerous clear and even obvious points about the parties’ finances. Even when CBV, Ryan Bensen, offered uncontradicted expert evidence, Mr. Crowley was initially unable to concede its accuracy. He assumed that he possessed an expertise that he failed to demonstrate at trial. He even refused to concede Mr. Bensen’s calculations of contingent tax liabilities, although he had been given the opportunity to meet with the expert outside of the courtroom. After much trial time was unnecessarily taken up, Mr. Crowley was ultimately forced to concede the accuracy of all Mr. Bensen’s calculations.

6. For her part, I found that the evidence of Ms. Mathers was far more measured, thoughtful, and consistent than that of Mr. Crowley. She did not try to exaggerate. I found her perception of the events that she described to be consistent with the other evidence that I heard. She was not shaken at all during the limited cross-examination by Mr. Crowley. Of the two parties, I felt that she had the clearest and most reliable picture of events.

7. Further, Mr. Crowley took little issue with any of the facts that Ms. Mathers relies upon in support of her separation date.

8. In short, while both parties attempted to offer honest evidence to the court, the evidence of Ms. Mathers was simply more reliable than that of Mr. Crowley.

[48] For all the reasons set out above, I accept Ms. Mathers’ date of separation: March 1, 2015.

Issue No. 2: Is Mr. Crowley Entitled to Spousal Support, and if so, in what amount?

Law Regarding the Basis for Spousal Support

[49] The court’s jurisdiction to order the payment of spousal support is found in s. 15.2(1) of the Divorce Act (“DA”). It allows the court to order a spouse to pay periodic and/or lump sum payments as the court thinks reasonable for the support of the other spouse.

[50] Under DA s. 15.2(2), the court may make an interim spousal support order. Under DA s. 15.2(3), the spousal support order may be made for definite or indefinite periods or until a specified event occurs. The court may also impose “…terms, conditions or restrictions in connection with the order as it thinks fit and just”.

[51] DA s. 15.2(4) requires the court to “…take into consideration the condition, means, needs and other circumstances of each spouse.” The factors that the court must consider include:

(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.

[52] Under DA s. 15.2(4), an interim or final spousal support order should meet the following objectives:

(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.

[53] As the Supreme Court of Canada stated in the groundbreaking case of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, all four of the potentially overlapping objectives must be taken into account. None, including self-sufficiency, is paramount or should be given priority to the others. This approach recognizes the great diversity of marriages. It allows the court to take a case by case approach to the determination of spousal support.

[54] The goal of the application of these four objectives is to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. There is no guarantee that the spouses will share an equal standard of living after the marriage’s dissolution. However, the longer the relationship and the closer the economic union, the greater will be a spouse’s presumptive claim to equal standards of living upon dissolution.

[55] As L’Heureux-Dube J. wrote for the majority at paragraphs 43 to 44 of Moge:

... [T]he purpose of spousal support is to relieve economic hardship that results from "marriage or its breakdown". Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects.

This approach is consistent with both modern and traditional conceptions of marriage in as much as marriage is, among other things, an economic unit which generates financial benefits ... The [Divorce] Act reflects the fact that in today's marital relationships, partners should expect and are entitled to share those financial benefits.

[56] In Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada recognized that there are three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory; and (3) contractual. As McLachlin J., as she then was, stated on behalf of the court at para. 13:

These three bases of support flow from the controlling statutory provisions and the relevant case law, and are more broadly animated by differing philosophies and theories of marriage and marital breakdown.

[57] Compensatory support is premised on the notion that some or all of a spouse's entitlement to support may arise out of his or her contributions to the other spouse during their relationship. That contribution may arise out of the roles that the parties assumed. Those roles may:

• confer an advantage on one party (say career enhancement, see for example, Caratun v. Caratun, (1992), 1992 CanLII 7715 (ON CA), 10 O.R. (3d) 385 (O.C.A.)); and

• confer a disadvantage to the other (say a spouse giving up, delaying or impairing a career to assume a caregiving role during the relationship (see for example, Spurgeon v. Spurgeon, (2001), 2001 CanLII 38738 (ON SCDC), 53 O.R. (3d) 509 (Ont. Div. Ct.)).

[58] Further, a spouse may make a financial contribution to the other's career (such as supporting the spouse through their schooling).

[59] On the other hand, non-compensatory support is based on need and ability to pay. The claim to such support arises out of the relationship itself and the mutual financial interdependence arising from that relationship. A claim to spousal support can arise on this basis even if there is no agreement or claim to compensatory support (see Bracklow, at para. 49). As McLachlin J. wrote at para. 53 of Bracklow:

... [W]here need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

[60] Contractual support is based on the agreements formally reached between spouses in domestic agreements (such as prenuptial or separation agreements) and implied or informal agreements. (See: Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines, Revised User Guideline (Department of Justice Canada, April 2016), https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/pdf/ug_a1-gu_a1.pdf, (“RUG”), at p. 7, and Stergios v. Kim, 2011 ONCA 836, where support granted to wife, in part on a contractual basis after wife supported husband based on his informal promise to later support her.) That factor is irrelevant here.

Ms. Mathers’ Non-compensatory Obligation to Pay Spousal Support

[61] At 22 years, the parties had what the authors of the SSAG would regard as a long-term marriage, entitling a spouse to indefinite term support (see: SSAG ch. 7.5). It was just a year less than the marriage in Cassidy v. McNeil, 2010 ONCA 218, (2010) O.R. (3d) 81 (C.A.), where Justice Susan Lang, writing for the Ontario Court of Appeal, stated at para. 69:

Over the 23 years of their marriage, the parties' expectations and interdependency would have evolved into an economic merger of their interests.

No Entitlement on a Compensatory Basis

[62] That being said, I see no reason to find that Mr. Crowley is entitled to support on a compensatory basis. He has provided the court with no evidence that he sacrificed any element of his career for the sake of Ms. Mathers or their family. He did not make his career choices in order to take on domestic responsibilities or to assist Ms. Mathers in her career. He made his career choices for his own reasons, based on a logic that he alone understood.

[63] Even accepting Mr. Crowley’s assertion that he was an equal caregiver at home at face value (an assertion that Ms. Mathers strongly rejects), that does not create an entitlement to compensatory support. Ms. Mathers worked throughout most of the marriage and also shared home responsibilities.

[64] Ms. Mathers was unhappy about Mr. Crowley’s choice to take a buyout from WSIB without any employment prospects. He promised her that he would drive a truck, if necessary, to support their nascent family. The offer was a metaphorical as well as a literal one. Either way, he refused to honour it.

[65] That does not mean that Mr. Crowley should necessarily have driven a truck, particularly after separation. It does mean that he should have sought out a permanent, full-time job. He refused to do that. He chose instead to spend years in the unproductive and unrealistic pursuit of a career as a home rebuilder/reseller, as I describe below.

What Income Should be the Basis for Ms. Mathers’ Support Obligation?

[66] Ms. Mathers’ relevant past income is set out at line 150 of her tax returns. She earned $93,720 in 2015, $103,225 in 2016, $117,176 in 2017, and $118,629 in 2018. In determining what income should be the basis for Ms. Mathers’ support obligations, I note that her income for the year of separation, 2015, was $93,720. That is $24,909 less than her income was in 2018, the year in which I find, below, that her support obligations began.

[67] Mr. Crowley’s tax returns and notices of assessment/reassessment show his line 150 income to be $28,176 in 2015 (also the year of his retirement), $33,509 in 2016, $33,857 in 2017, and $32,786 in 2018.

[68] The question that I must ask myself is whether Mr. Crowley is entitled to share in the post-separation growth in Ms. Mathers’ income. Both parties assume that the answer is yes, as reflected in their submissions and in Ms. Mathers’ SSAG calculations. I agree. Normally the right to share in post-separation increases in income is strongest in cases of compensatory support. However it can be found in cases like this with a long-term marriage that involved a close degree of financial interdependence and a distinctive difference in the incomes of the parties.

The Term of Ms. Mathers’ Support Obligations to Mr. Crowley

[69] Ms. Mathers denies that she has a support obligation to Mr. Crowley but argues in the alternative, any obligation should be a short term one. For his part, Mr. Crowley claims that the obligation is an indefinite term one. That being said, neither party has offered a commencement date for Ms. Mathers’ support obligations. For the reasons that follow, I find that Ms. Mathers’ support obligations to Mr. Crowley commenced on August 30, 2018, the date that he issued his answer to Ms. Mathers’ application in this proceeding.

[70] I peg the date of Mr. Crowley’s entitlement to spousal support on August 30, 2018, for two reasons. First, because Mr. Crowley did not request spousal support until he issued his answer. Second, Ms. Mathers supported Mr. Crowley between the date of separation and the end of July 2017.

Notice

[71] Dealing first with notice of Mr. Crowley’s claim to spousal support, there is no evidence that Mr. Crowley requested spousal support from Ms. Mathers until he issued his answer on August 30, 2018. In that pleading, he requested spousal support retroactive to the date of separation (which he pleaded to be April 1, 2017).

[72] In MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (O.C.A.), the Ontario Court of Appeal set out the principle that the commencement date for a claim of spousal support is the date of notice of the claim. An applicant for spousal support is presumptively entitled to ongoing support from the date that he or she gives notice to the other spouse that a support claim is being pursued. As Lang J.A., writing for the court, explained in MacKinnon, retroactive support is support claimed for a period of time before a pleading which claims support is issued. Support payable for the period following the issuance of the pleading is not considered retroactive support. A spouse is presumptively entitled to support only after notice of the claim has been delivered (paras. 18-26). That being said, even a request for disclosure can be seen as notice of a request for spousal support, provided that the spouse moves expeditiously to dispose of the claim (para. 22).

[73] The notice requirement was confirmed by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. There, Cromwell J., writing for the court, explained why notice is far more important in determining the start date of a spousal support obligation than a child support one. He stated at para. 208:

In contrast [to child support], there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see, e.g., M. L. Gordon, "Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era" [page362] (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and 291-92.

[74] Thus, while it cannot be said that the entitlement to spousal support always existed after separation, it can be said that any entitlement exists from the time that effective notice of the claim is provided (Cameron v. Cameron, 2018 ONSC 2456 at para. 197).

[75] I should note that the wording of Mr. Crowley’s answer shows that his request for spousal support is only a response to Ms. Mather’s request for child support for their adult children in her application. He wrote at p. 2, para. 6(4), that “[t]he Applicant’s request for child support has required the Respondent to request spousal support”. As set out above, Ms. Mathers abandoned her claim to child support at trial.

Ms. Mathers’ Post-Separation Support of Mr. Crowley

[76] Ms. Mathers effectively supported Mr. Crowley during the two and a half years between March 1, 2015, the date of separation, and the end of September 2017, when she stopped depositing her pay into a joint account. Until April 1, 2017, the parties remained under the same roof, with Ms. Mathers paying most of the expenses. Ms. Mathers then continued to place her entire paycheque in the parties’ joint bank account until September 2017. Thus she was effectively supporting Mr. Crowley until that September 2017 date. Mr. Crowley had full access to her income. She was paying the home expenses.

[77] Thereafter Mr. Crowley supported himself through unilateral withdrawals from the parties’ joint HELOC, paying himself $3,700 per month from that line of credit. Ms. Mathers never agreed to support him at that point nor was she aware of the support claim until he issued his answer.

[78] For the reasons set out above, I see no reason to grant Mr. Crowley spousal support for any period of time before he issued his answer.

Should Income be Imputed to Mr. Crowley on the Basis of Intentional Underemployment?

[79] Ms. Mathers says that Mr. Crowley has made numerous deliberate and ill-considered career choices that have left him earning less than he could have earned. He currently earns about $33,800 per year in pension income. He has no other source of income, despite two recent applications for part-time employment in local big box home improvement stores. Ms. Mathers feels that she should not be responsible for the results of his flawed career and financial decisions. Accordingly, she asks that income be imputed to Mr. Crowley. In other words, she asks the Court to treated him as if he were earning the revenue she argues he is capable of earning. She asks the court to impute the $95,000 per year income that Mr. Crowley earned at the time of his buyout from WSIB, about seventeen years ago. That would eliminate any claim to spousal support.

[80] The starting point for the calculation of income under the SSAG is the rules for the determination of income for both payor and recipient set out in the Child Support Guidelines (“CSG”). With a few exceptions, the same rules apply to the determination of income for both child and spousal support. (See: RUG at p. 20.)

[81] Under CSG s.19, the non-exclusive list of criteria that would allow a court to impute income to a spouse includes the following factors:

Imputing income

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

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

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

(c) the parent or 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 parent’s or spouse’s property is not reasonably utilized to generate income;

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

(g) the parent or spouse unreasonably deducts expenses from income;

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

[82] The leading case regarding the imputation of income under CSG s. 19(1)(a) is the decision of the Ontario Court of Appeal in Drygala v. Pauli, (2002) 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (O.C.A.). At paragraph 32 of that decision, Gillese J.A., writing for the court, described the imputation of income as:

... [O]ne method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[83] As the court pointed out in Drygala v. Pauli, the test for imputing income is the same for child and spousal support.

[84] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala v. Pauli:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[85] In reviewing the case law, Chappel J. cites at para. 57 seven principles that apply to the imputation of income to a support payor:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[Citations omitted]

[86] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a party, that discretion is not absolute. As the Ontario Court of Appeal stated at para. 44 of Drygala v. Pauli:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[87] In Drygala v. Pauli, Gillese J.A. set out the following three questions which should be answered by a court in considering a request to impute income under s. 19(1)(a) of the CSG:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by the needs of any child or by the reasonable educational or health needs of the parent or spouse?

3. If not, what income is appropriately imputed?

[88] The test set out in Drygala v Pauli was refined by the Ontario Court of Appeal in Lavie v. Lavie, 2018 ONCA 10. There, Rouleau J.A., writing for the court, set out a very clear-line test for intentional underemployment. It is one in which the subjective reasons for the underemployment (and by extension, unemployment) are not relevant. He wrote:

26 There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed. [Emphasis added]

[89] In his own telling, Mr. Crowley was an important member of the WSIB’s management team, offering advice to senior members on labour relations matters. In subsequent years, he worked on several short- to medium-term contracts within his field of expertise. In his written submissions, Mr. Crowley claimed a remunerative work history. He wrote:

The Respondent has an extensive business and labour relations background in both the public and private sector. His work experience is approximately 18 years in the public sector and 10 years on the private sector and his salary range in those years would be from $75,000.00 to $95,000.00

[90] Mr. Crowley also candidly admits in his written submissions that he:

… is not suffering from any physical or other disability that would prevent him from working at any full-time or part-time employment and acknowledges that he has the ability to earn income greater than that of his pension income alone.

[91] However, there is no evidence but his own vague word that Mr. Crowley actively sought permanent full-time employment since his 2002 buy-out. In fact, he has failed to provide the court with any objective proof of any of his attempts to find work. He only offered his testimony to that effect.

[92] In his answer of August 30, 2018, Mr. Crowley acknowledged that income may be imputed to him. He wrote, in response to the Applicant’s (now withdrawn) request for support of their adult children:

The Applicants [sic] request for child support has required the Respondent to request spousal support. The Respondent is requesting the court to consider both requests in accordance with the incomes and table amounts with the full understanding that adjustment may be made for the imputed value of the Respondent’s income.

[Emphasis added]

[93] As set out above, Mr. Crowley decided to retire in 2015 in order to begin to draw on a pension that pays him approximately $33,800 per year. He was not yet 60 years of age.

[94] Rather than attempt to find employment from 2015 onward, Mr. Crowley busied himself in self-education aimed at training himself to become a home rebuilder/vendor. Despite an absence of any meaningful experience in those fields, he felt qualified to take on that line of work. However he concedes that he spent no more than 3-4 days per week in that pursuit.

[95] Mr. Crowley never took any formal courses in any of the subjects to which he applied himself to the exclusion of gainful employment. He never sought an apprenticeship or even work in the field. He had no nest egg or outside source of funds with which to finance his expensive plans. He never sought confirmation of his ability to enter the field into which he chose to dedicate his efforts.

[96] Instead, Mr. Crowley persuaded himself that he was equipped to enter the home building/resale profession without anything but his self-taught course of study and decades-old amateur building experience. The only time that he earned any money in the building trades was at least four decades ago, during university, when he built decks as a summer job. Nonetheless, he felt that it was appropriate that he make the matrimonial home, worth well over a million dollars, the site of his first real project. Ms. Mathers was only willing to go along with this plan if Mr. Crowley bought her out of the home and assumed all the risk.

[97] Ironically, when asked why he chose the matrimonial home rather than another property for his first project, Mr. Crowley answered, in addition to being “just right”, that it presented the least risk.

[98] Mr. Crowley’s single-minded but untutored devotion to the project of rebuilding and reselling the matrimonial home for profit, to the exclusion of gainful employment, was not a wise business decision. He was unable to either demolish and rebuild the matrimonial home or earn any employment income from 2015 onward.

[99] In his written submissions, Mr. Crowley blames Ms. Mathers and this proceeding for his present unemployed status. He wrote:

Towards 2017 and into 2018, the Court proceedings consumed increasing amounts of the Respondents [sic] time as the problem was refocussed on litigating every issue instead of negotiating a lump sum settlement that would facilitate the Respondents [sic] construction career and investments. After the expiry of the COA [committee of adjustments] approval [of his home build plan for the matrimonial home] and the forced listing and sale of the Oakville [matrimonial home] property, the development and tendering work on the Oakville property came to an end as that project was no longer viable.

[100] With the greatest of respect, this position, blaming Ms. Mathers for his failure in the home rebuild/resale trade is unreasonable and unrealistic. The parties were separated. Ms. Mathers had no obligation to allow him to put her investment in the matrimonial home at risk by demolishing and rebuilding it without any relevant prior experience or expertise. In light of his work history, highlighted by a lack of expertise and experience in his proposed profession, she had every reason to be resistant to the notion of allowing her nest egg to be endangered by his plans. That is why she insisted that he could only do his work on the home after he bought out her interest. At all material times, he was aware of this reasonable demand, but seems to have nonetheless ignored its effect.

[101] Further, the only successful steps that he took in furthering his plan to rebuild and sell the matrimonial home is the fact that he got his plan by the local committee of adjustments. But that only means that his plans passed zoning muster. That says nothing about the viability, let alone profitability, of his plan.

[102] Recall that Mr. Crowley owned only half of the matrimonial home and had no other source of income or financing save his pension. He said that he had secured funding for the project, but presented no independent evidence that the financing was firm. He called no witnesses to speak to the viability of his financing, his ability to complete the matrimonial home project, or its reasonableness as an alternative to employment.

[103] In order to finance the project, Mr. Crowley would have had to pay Ms. Mathers roughly $500,000 to buy out her share of the home, repay the HELOC that he exclusively increased to the tune of $277,999 (mostly for the Ancaster home and his living expenses), and pay what he estimated to be $1,000,000 for the construction costs of the rebuild. Even deducting the equalization payment that Ms. Mathers owes him, which we now know to be $39,547.27, but which would have been $61,524.57 with his valuation date, his plan makes little financial sense. He would have had to finance about $1 ¾ million for the rebuild, with the only security being a property with a house that he was about to partially demolish and only then rebuild.

[104] Further, the reason that the HELOC payment was so high is the fact that Mr. Crowley unnecessarily incurred great debt in buying and maintaining a second house, the Ancaster property. He paid $35,000 down and then incurred $3,700 per month in principal and interest payments, all from the HELOC, to purchase and maintain the home as well as pay his living costs. He could only do this because the line of credit was a joint one and Ms. Mathers was equally liable for the debt. What scant chance he had of success in his plan was undermined by his unnecessary allocation of scarce resources to the indulgence of the Ancaster home.

[105] In considering all the facts set out above, and considering the comments of Rouleau J.A. in Lavie, above, I conclude that Mr. Crowley has been intentionally underemployed since the time of separation as defined by s. 19(1)(a) of the CSG. Simply put, he is earning less than he could be. That state of affairs is the result of a series of ill-considered decisions that Mr. Crowley made during the period of the parties’ cohabitation, beginning when he took his WSIB buyout. It continued well past the date of separation. The fact that he acted in the honest belief that his choices were reasonable is not relevant. His career plan was objectively unreasonable.

[106] In addition, Mr. Crowley is not entitled to any of the exceptions to an imputation of income called for under s. 19(1)(a) of the CSG. His failure to earn what he was capable of earning is not a result of any steps required to meet the needs of any child or as a result of his reasonable educational or health needs. As I found above, Mr. Crowley’s self-education program was not a reasonable one in the circumstances. He admits to no health issues.

What Income Should be Imputed to Mr. Crowley?

[107] Having found that income should be imputed to Mr. Crowley, the issue is how much. Ms. Mathers asks me to impute $75,000-$95,000 per year on an ongoing basis. She relies on his past employment history and his statements set out above about his ability to work. Mr. Crowley, opposing the request to impute any income to him, offers no alternative figure at which I could impute income to him.

[108] Mr. Crowley had what he describes as “an extensive business and labour relations background in both the public and private sector”. It is one that he says spanned 28 years and paid him what he describes as a salary in the range of $75,000-$95,000 per year. He chose not to follow that career path, particularly from 2015 onward. He chose to retire at age 59 ½ to pursue an unreasonable and ultimately non-remunerative career path.

[109] That being said, at his present age, it is difficult to see Mr. Crowley returning to any gainful employment that approximates the career and income that he previously enjoyed. Like Ms. Mathers, he is approaching his 65^th birthday (he will turn 65 in January 2020 while Ms. Mathers will turn 65 in December 2020). He was approximately 59 ½ years of age at the time of separation. He had not held a full-time permanent job for over a decade at the time.

[110] While I have been provided with no evidence on the point, I do not doubt that it is difficult for people over 60 years old, like Mr. Crowley, to find well-paying employment. He testified that he recently applied for a part-time position at Lowes and Home Depot locations near his new home in Ancaster. As of the end of this trial, he was not successful. Ignoring his attempts at creating a career as a home rebuilder/reseller, he has not worked on any job since at least 2015.

[111] However, had he sought employment four years ago, in 2015, he would far more likely have a job of some sort now. That job would likely pay him at least a minimum wage of about $29,100 per year. I am willing to impute that level of income to him from the time of separation onward, subject to the issue discussed below.

Further Issues: Potential “Double Dipping” and Attribution/Imputation of Post-Retirement Income

“Double Dipping”

[112] Ms. Mathers urges me to add the imputed income figure to Mr. Crowley’s pension income of $33,800 per annum. However, after some reflection, I have to point out something that neither side mentioned in their submissions: most, if not all of the value of Mr. Crowley’s pension has already been equalized. It went into pay just days or weeks after the March 1, 2015, date of separation. Had it been in pay at the time of separation, it would not have been included in his net family property. That would have meant that Ms. Mathers would have paid Mr. Crowley approximately an additional $190,000 plus interest towards his equalization payment. In that event, I would unquestionably have attributed the income to Mr. Crowley for support purposes.

[113] Ms. Mathers’ request to add Mr. Crowley’s pension income to his imputed income for support purposes raises my first question for the parties. I ask whether that calculation would amount to a form of unfair “double dipping” or double recovery (see Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. No. 413; RUG, para. 19(c)).

[114] The problem with “double dipping” or double recovery was defined by Major J. for the Supreme Court of Canada at para. 63 of Boston as follows:

It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income.

[115] Major J. added at para. 64 that:

To avoid double recovery, the court should, where practicable, focus on that portion of the payor's income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse's continuing need for support is shown…

[116] Here the issue is not double recovery from the payor, Ms. Mathers, but a potential form of its inverse: a vastly reduced equalization payment for Mr. Crowley, based on the valuation date value of the pension and greatly reduced support payments because of its monthly payments.

[117] I require submissions from the parties regarding the propriety of that approach and the applicability of Boston’s reticence to allow a form of double recovery to the facts of this case.

Income Attribution to Each Party After Reaching age 65 and Retirement

[118] I also request the parties’ input regarding a second issue: that of the income to attribute to each of them after they reach age 65. Because this was a long-term marriage, Ms. Mather’s support obligation is presumptively a long-term one. However, Ms. Mathers wishes to retire at age 65, a year and a quarter from now. She plans to live on a total income that she assumes will be $66,000 per year, inclusive of investment and government pensions. She assumes that no income will be imputed to her for the period after her retirement.

[119] I note that virtually all the investment assets that Ms. Mathers carries into retirement, upon which she relies for income in her retirement, are not equalized. They are excluded because she obtained them by way of inheritance. Thus there is no issue of double dipping in regard to them.

[120] For his part, Mr. Crowley already retired at age 59 ½. Ms. Mathers has successfully argued that income should be imputed to him. Since she asks the court to accept that she should be able to retire at age 65, does the same apply to Mr. Crowley? He will be 65 in about five months. If that is the case, should the income imputation end when he turns 65 in January 2020? If so, depending on the answer to the “double dipping” question, should I only ascribe to him his government pension income, with Ms. Mathers’ post-retirement income as set out above?

[121] In each party’s response, I ask for them, if they are able to prepare them, to provide SSAG calculations based on Mr. Crowley’s imputed income at $29,100/year and no reference to his employment pension(s). I already have SSAG calculations prepared by Ms. Yehia that include various scenarios for imputed income plus the pension income.

[122] The scenarios I am requesting will be based on my income findings above and cover the periods from:

1. August 30, 2018 to January 2020, when Mr. Crowley turns 65;

2. January 2020 to December 2021, when Ms. Mathers turns 65 and, as she testified, plans to retire;

3. The period after December 2021.

[123] The calculations should include any CPP/OAS that will be available to each party at age 65 onward.

[124] The parties’ additional submissions shall be provided as follows :

1. The parties are to provide their written submissions only on the two issues cited immediately above. Their submission shall be no more than ten pages, double spaced (including any footnotes) with 12 point font and one inch margins. They may also submit a book of highlighted authorities and SSAG calculations;

2. Ms. Yehia shall serve and file her submission by September 20, 2019.

3. Mr. Crowley shall serve and file his submission by October 11, 2019.

4. There will be no reply or oral submissions unless I request them.

Conclusion

[125] For the reasons set out above, I find that the parties’ date of separation is March 1, 2015. Accordingly, I order that:

1. Ms. Mathers will pay to Mr. Crowley an equalization payment of $39,547.27;

2. Mr. Crowley will pay to Ms. Mathers:

i. $277,999, representing the amounts that he removed from the parties’ HELOC following their separation;

ii. $20,000, representing the amounts that he removed from the HELOC to pay towards his planned tear down and rebuild of the matrimonial home;

iii. $39,624 in additional post-separation adjustments;

iv. $23,913.56 in previous costs awards;

v. all utility expenses on the matrimonial home from April 1, 2017.

vi. all carrying costs of the HELOC that were paid by Ms. Mathers post separation;

vii. One half of the carrying costs of the matrimonial home (i.e. mortgage, taxes and insurance) that Ms. Mathers has paid since April 1, 2017, and continued to pay until the sale of the home was completed.

3. The payments set out above will be taken from each party’s 50% proceeds of the sale of the home.

4. I encourage the parties to work together to determine the quantum of the undetermined figures set out above. If they are unable to agree on those figures, they may arrange to speak to me regarding that issue.

5. I further reserve judgment on the issue of spousal support quantum and whether it will be paid periodically or as a lump sum. In light of the figures set out above, payable from Mr. Crowley’s share of the proceeds of sale of the matrimonial home, I am open to a lump sum spousal support payment to him.

6. Unless they agree otherwise in writing or I so order, no further funds will be released from the funds held in trust from the sale of the matrimonial home until I determine the amount of spousal support owing to Mr. Crowley.

[126] The parties will provide their further submissions regarding spousal support in the manner and on the dates as set out above.

Kurz J.

Released: August 30, 2019

COURT FILE NO.: 41215/18

DATE: 2019-08-30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLEY ANNE MATHERS Applicant

– and –

MARK KENNETH CROWLEY Respondent

REASONS FOR JUDGMENT

Kurz J.

Released: August 30, 2019