Court File and Parties

Court File No.: 400/15 Date: 2019-11-29

Ontario Superior Court of Justice

Between:

Juliana Boehler-Augustin, Applicant

And:

Manfred Boehler, Respondent

Counsel: Lucienne MacLauchlan, for the Applicant Kurt W. Anders, for the Respondent

Heard: July 8, 9, 10, 11 and 12, 2019

Before: Trousdale J.

Reasons for Judgment

[1] The parties settled the matters of custody and access prior to trial and filed a Consent to a Final Order at the opening of trial. A Final Order was made by me in accordance with the Consent.

[2] The trial before me was a claim by the Applicant against the Respondent for equalization of net family property, and for retroactive and ongoing child and spousal support and Section 7 expenses.

Background

[3] The Applicant and the Respondent are husband and wife. The Applicant was born in Haiti in 1989. The Respondent was born in Germany in 1952 and immigrated to Canada in approximately 1989. The Applicant and the Respondent met in the Dominican Republic in 2006.

[4] There is a dispute between the parties as to when they started living together, with the Applicant claiming it was December, 2006 and the Respondent claiming it was December, 2010.

[5] The parties married on December 30, 2010. They have one child born of their relationship whom I shall refer to as “A”, who was born in the Dominican Republic in 2009. The Applicant and the child A were sponsored to Canada by the Respondent and they arrived in Canada in December, 2012. The parties separated in August, 2015. The child A resides with the Applicant subject to parenting time with the Respondent every second weekend and for time during holiday periods.

[6] The Applicant worked as a cleaner when she first came to Canada. She is now a full time student at University taking four languages and she has finished two years of a four year program. Upon completion of that program, she wishes to obtain a Master’s degree in Linguistics. The Applicant’s position is that she earns no income at this time. She does receive OSAP.

[7] The Respondent was married previously and has an adult son who lives in Canada and an adult daughter who lives in Germany. The Respondent owned a general construction business in Germany. He still owns a number of apartment buildings in Germany from which he derives income. The Respondent has in the past been paid employment income from his son’s construction business in Canada. The Respondent’s evidence is that he is now retired and is in receipt of Canada Pension Plan (CPP) and Old Age Security (OAS) as well as a pension from Germany.

Issues

1. What date did the parties commence cohabitation?
2. What, if any, equalization payment is owing from one party to the other?
3. What is the Respondent’s income?
4. Should income be imputed to the Respondent for purposes of calculation of child and spousal support?
5. What ongoing child support should be paid by the Respondent to the Applicant?
6. What is the Applicant’s income?
7. What ongoing spousal support should be paid by the Respondent to the Applicant?
8. Should there be a retroactive reduction in spousal support paid by the Respondent to the Applicant?
9. Should income be imputed to the Applicant for purposes of calculation of the Respondent’s share of s.7 expenses?
10. What, if any contribution towards past s. 7 expenses should be paid by the Respondent?
11. Should the Respondent be required to obtain life insurance?
12. Should the divorce claimed by the Applicant be granted?
13. What, if any, costs should be awarded to either party?

Analysis

Credibility

[8] I found the Applicant to be straightforward in her presentation of her evidence and most of her claims were backed up with documentary evidence. On the whole, I found her evidence to be credible.

[9] The Respondent during the course of this litigation has changed his position on various financial issues, even as late as during the course of the trial.

[10] I found that in many instances during his evidence, the Respondent would say whatever he thought would be most helpful to him at the time even if it contradicted prior statements made by him in his pleadings or documentary evidence filed even by himself. In a number of instances regarding financial issues and other issues, I did not find the Respondent’s evidence to be credible.

[11] I found that the Respondent’s recollection of events was not as good as the Applicant’s recollection. In the event of a difference in their recollections, I found the Applicant’s memory of events to be more reliable than the Respondent’s.

What date did the parties commence cohabitation?

[12] The Applicant’s evidence is that the parties met in the Dominican Republic in about February, 2006. The Respondent’s evidence is that the parties started dating later in 2006.

[13] The Applicant testified that she and the Respondent started living together in the Dominican Republic in December, 2006 when the Applicant moved into a house that the Respondent was renting. From that time forward until the Applicant and the child A immigrated to Canada in December 2012, the Applicant’s evidence is that she lived in that house except for a period of 8 to 9 months or so when the parties had to move out to another house while the first house was undergoing necessary repairs.

[14] The Applicant testified that the Respondent travelled a lot. Generally he came to the Dominican Republic every three to four months. On other occasions, it was for much less time. On a couple of occasions, the Respondent was away for periods of four to six months. On some occasions he would stay in the Dominican Republic for three to four months. However, the Respondent always paid the rent for the rental house in the Dominican Republic. Sometimes the Respondent sent the rent money to the Applicant to pay and sometimes the Respondent paid the rent directly to the owner of the house. The Applicant testified that the Respondent sent her money every two weeks for her living expenses mostly by Western Union, and sometimes by cash. Her evidence is that the Respondent financially supported her whether he was there or not. The Respondent paid for the Applicant to return to Haiti to get her driver’s licence and purchased a car for the Applicant to drive in the Dominican Republic. The Respondent also purchased a car for himself to drive in the Dominican Republic.

[15] The Respondent’s evidence is that the Applicant and he did not start living together until they married in December, 2010. He asserts that although he sometimes took trips to the Dominican Republic over the years and rented accommodation in which the Applicant sometimes stayed with him, there was no ongoing cohabitation relationship until the parties married. He argues that he is a permanent resident in Canada and is still a German citizen, and did not reside in the Dominican Republic.

[16] The Respondent’s evidence is that when he was visiting in the Dominican Republic from February 24, 2007 to March 17, 2007, the Respondent rented an apartment. He states that the Applicant moved in with him for those 3 weeks and when he left, the Applicant returned to live with her mother and he did not continue to rent that apartment.

[17] The Respondent states that when he came back to the Dominican Republic from November 18, 2007 to March 31, 2008, he rented an apartment in a small house. His evidence is that the Applicant moved in with him when he arrived or a little bit later. However, when he was there for that period, he submits the parties split up for two months or so and the Applicant returned to her mother and had another boyfriend. The Respondent and the Applicant then got back together again.

[18] However, in cross-examination, the Respondent agreed that he was living in that small house with the Applicant from at least January or February, 2007.

[19] The Respondent testified that he paid and sent money to the Applicant for food and other expenses which with the rent totaled about $800.00 to $900.00 per month. The rent including everything cost $500.00 per month and the rest was for the Applicant’s expenses. He stated that the cost of living in the Dominican Republic is about $400.00 per month and that 50% of people there live on $200.00 per month.

[20] The Respondent was frequently not in the Dominican Republic as he was in Canada, and in Germany and in other places. However, I find that in spite of the Respondent’s absences from the Dominican Republic, the Applicant and the Respondent were in a committed cohabitation relationship and that the Applicant was financially dependent on the Respondent. This is reinforced by the evidence that the Respondent paid the rent for the accommodation in the Dominican Republic for the Applicant (and for the child A after birth), as well as providing a vehicle for the Applicant and providing funds to the Applicant for her living expenses. The Respondent’s pattern of travelling did not change after the parties married and the Applicant and the child A immigrated to Canada and lived with the Respondent. The Respondent continued to travel frequently to Germany and to other places while the parties still cohabited together in Ontario.

[21] I find on the evidence that the Applicant and the Respondent started cohabiting in December, 2006 as submitted by the Applicant.

Equalization of Net Family Property

[22] The parties have agreed on a number of the assets and debts which should be included in the Net Family Property Statement so I will not deal individually with those items. I will only review the disputed portions of the Net Family Property Statement.

The Farm Property

[23] The farm property on which the parties resided together from December, 2012 to August, 2015 is a 100 acre farm (herein “the farm property”). It was purchased by the Respondent and likely his brother in or about 1989 for $26,000.00 according to the Respondent’s evidence. It had a smaller older home on it in which the Respondent resided (“original house”). In 1999, it appears that the Respondent bought out his brother’s interest in the property.

[24] In August, 2005, before the Respondent had ever met the Applicant, the Respondent transferred the whole property to his adult son as a gift for natural love and affection and nominal consideration of $1.00. The Respondent’s adult son wanted to start a business and he wanted to build a new home on the property for himself and his future family which he did.

[25] The Respondent continued to live in the original house on the property although his adult son was now the owner of the whole property including the original house. The adult son paid the taxes and insurance and the cost of renovations and repairs.

[26] The Applicant’s evidence is that the Respondent told her that he transferred the property to his son on the understanding that the Respondent could live rent-free in the original house on the property for so long as the Respondent wanted to do so. The Applicant testified that the Respondent also told her that it was agreed between the Respondent and his adult son that if the Respondent wanted to move off the property at any time, the Respondent’s adult son would pay the Respondent $150,000.00. Accordingly, it is the Applicant’s position that the Respondent has a contingent or future interest in the farm property and that he should show that interest on his side of the Net Family Property Statement at $150,000.00 for equalization purposes.

[27] The Respondent’s Answer in this proceeding prepared by his former counsel states that there was an understanding between the Respondent and his adult son that if the Respondent left the property, the adult son would pay the Respondent $150,000.00, but that this understanding was not in writing, and that there was never anything in that regard registered on the property which would make the understanding unenforceable by the Respondent.

[28] The Respondent more recently claims that he has no interest in the property and that nothing should be shown regarding this property on the Respondent’s side of the Net Family Property Statement. Subsequent to his Answer, which was prepared for him by his former counsel, the Respondent has taken the position that there was no agreement with the Respondent’s adult son for payment of $150,000.00. He claims that he and his first lawyer had some language difficulties which resulted in some incorrect information being pleaded, whereas his present counsel speaks German.

[29] However, while represented by his current counsel, I note that in the Respondent’s Net Family Property Statement dated May 13, 2019, the Respondent states he has an interest in property transferred to his son in 2005 for a remaining interest of $150,000.00 although he does not show the $150,000.00 as part of his property in the Net Family Property Statement.

[30] The Respondent’s position at trial is that he has no interest whatsoever in the farm property at the date of separation. His adult son also testified that the Respondent has no ownership interest in the farm property and that there is no agreement that the Respondent would receive $150,000.00 if the Respondent left the farm property. The adult son testified that he pays the taxes, insurance and any renovation costs for the home in which the Respondent lives.

[31] I find that the Respondent transferred his interest in the farm property as a gift to his son before he even knew the Applicant. The registered transfer on title to the property is evidence of this. There was nothing preventing the Respondent from making this gift to his son. His son was starting a construction company and his son subsequently built a larger home on the property for his family and himself.

[32] On the evidence before me, it appears that there was some kind of agreement between the father and the son, as related by the Respondent to the Applicant when they cohabited and married. This appears to have been acknowledged by the Respondent to his first counsel as set out in the Respondent’s Answer and to his current counsel as referred to in his most recent Net Family Property Statement. However, there may well be issues as to whether that agreement would be enforceable as it relates to real estate and it is not in writing.

[33] Nevertheless, on the facts of this case, I find that it is immaterial to the Net Family Property Statement whether there was an agreement or not between the Respondent and his adult son that his adult son would pay $150,000.00 to the Respondent if the Respondent decided to leave the property.

[34] If there were such an agreement I find that this would mean that the Respondent at the date of marriage had a contingent right to receive $150,000.00 from his son if the Respondent left the property. Similarly, at the date of separation, as the Respondent had not left the property, the Respondent continued to have a contingent right to receive $150,000.00 from his son if the Respondent left the property. The net effect of this in this case is that the date of marriage value would cancel out the date of separation value.

[35] If there were no such agreement between the Respondent and his son, the Respondent had no interest in the farm property at the date of marriage and no interest in the farm property at the date of separation.

[36] Later in this Judgment I have completed the Net Family Property Statement including a $150,000.00 value for a contingent interest in the farm property on the Respondent’s side of the Net Family Property Statement at the date of marriage and at the date of separation. For comparison, I completed the Net Family Property Statement not including a contingent interest in the farm property at the date of marriage and at the date of separation. In each case, the equalization payment was the same.

[37] It was specifically confirmed at trial that the Applicant does not claim that any part of the farm property is a matrimonial home within the meaning of the Family Law Act, R.S.O. 1990, c. F.3. Further, the Applicant has made no claim for a trust interest or any equitable claim in the farm property.

The Respondent’s VR Bank Accounts

[38] The Respondent had a number of bank accounts at the VR Bank in Germany at the date of separation. The Respondent produced a letter dated April 24, 2018 from the VR Bank setting out all the six bank accounts the Respondent had in his name at that bank and the balances in each of those bank accounts as at the date of separation on August 15, 2015. Most of those figures are agreed.

[39] At the trial, for the first time since the letter from VR Bank was produced by the Respondent, he took the position that one of those bank accounts ending in 002 is actually his adult son’s bank account and that it should not be included in the Respondent’s net family property. The Respondent testified that his adult son sold an apartment in Germany for $260,000.00 and this is what was left of his adult son’s proceeds of sale. No evidence of that was produced. When the adult son testified, he did not know the amount of the proceeds of the sale of his apartment nor whether the proceeds of the sale went into his account or the Respondent’s account. The Respondent’s son testified that he didn’t ask and that he and the Respondent have “pretty open hands” in that they each trust each other with each other’s money.

[40] This bank account was included in the VR Bank letter dated April 24, 2018 as being one of the bank accounts in the Respondent’s name at the date of separation. The amount in this account as at the date of separation was 80,011 Euros which is the equivalent of $120,016.50 Canadian dollars according to the exchange rate (1.5) the parties have agreed should be used. The evidence is that the Respondent also sold a property in Germany in 2015 prior to separation. In his Net Family Property Statement signed May 13, 2019 the Respondent shows this VR account ending in 002 on his Net Family Property Statement at $27,917.75 which he states in the document was “proceeds from sale of apartment in Germany (in Euros).” There is no claim it is his adult son’s account or that it is proceeds of sale of an apartment belonging to the Respondent’s adult son. This entry also substantially understates the amount in that account at the date of separation when compared to the aforesaid letter from VR Bank to the Respondent which stated that there was 80,011 Euros in the account (value of $120,016.50 Canadian dollars) at the date of separation. I find on the evidence before me that the money in this bank account in the Respondent’s name at the date of separation should be included as the Respondent’s property in the Net Family Property Statement.

[41] In the letter from VR Bank, there is one account in the Respondent’s name ending in 001 which had a negative balance of (-758.4) Euros. Using the same exchange rate which the parties have agreed should be used for the other calculations of Euros to Canadian dollars (1.5), I have included a negative balance of ($1,138.11) in this bank account on the Respondent’s side of the Net Family Property Statement.

The Respondent’s Bank Account at the Royal Bank

[42] In 2011 the Respondent submitted a bank statement to the Canadian government in support of his sponsorship application for the Applicant and the child of the marriage to come to Canada. This bank statement showed his adult son and himself as joint owner of a bank account with the Royal Bank. The Respondent testified that this bank account was only in his adult son’s name and that the Respondent altered the bank statement to show that he and his adult son were joint owners of the account to support the Applicant’s application to come to Canada with the child of the marriage and to support the Respondent’s financial ability to sponsor the Applicant and the child A. The Respondent’s claim is that this bank account is his adult son’s account and that this bank account with the balance in that account at the date of separation should not be included in his net family property.

[43] The Respondent states he can’t use this account and doesn’t have a card for the account. He testified he doesn’t know the balance in the account at the date of separation.

[44] As can be seen from the Canadian Sponsorship Application filed by the Applicant in support of the application by her and the child of the marriage to immigrate to Canada, the Respondent needed to have income in the sum of $34,022.00 to be accepted as a sponsor for the Applicant. In the Financial Evaluation form submitted by the Respondent to Citizenship and Immigration Canada, he stated he had an available income of $114,440.00 per year.

[45] The court ordered on November 20, 2018 that the Respondent produce to the Applicant within 30 days a copy of the bank statements for this account for the period of August 15, 2014 to November 20, 2018. In default of the Respondent producing these statements, the Court ordered that the Applicant was given the right to have questioning of the Respondent’s adult son upon notice or the Applicant may move to add the adult son as a party. The Respondent has never produced a copy of the statements for that bank account for the period ordered. The Applicant never conducted questioning of the Respondent or his adult son with respect to the ownership of that account and the amount in that account as at the date of separation and the Applicant never moved to add the adult son as a party.

[46] The Respondent wanted to file a letter from an employee of the Royal Bank regarding the ownership of this account. However, the Applicant objected to the letter being filed in evidence without the author of the letter being available for cross-examination at trial. The Applicant is distrustful of documents produced by the Respondent because according to his own evidence he admits that he altered the bank statement he submitted to Citizenship and Immigration Canada. I did not allow the letter to be filed for the truth of its contents without the author being available for cross-examination.

[47] The Respondent was unable to arrange for the author of the letter to attend at court for cross-examination as his counsel indicated that the Bank would not permit the employee to testify. The letter was ultimately admitted into evidence as an exhibit during the course of the evidence of the Respondent’s adult son as proof that the adult son had received this letter from the bank, but not as proof of the truth of its contents.

[48] The Respondent was ordered to produce bank statements for this account but he failed to comply with the order. The Respondent could have easily produced a copy of the bank statement as at the date of separation. If the bank account were only in the name of the Respondent’s adult son at that date, that might have clarified this issue or further proof could have been provided by the bank. However, the fact that the Respondent was ordered to produce the bank statements for this account for a period which would include a statement showing the ownership and balance in this account as at the date of separation, and that he failed to do so, should in my view result in an adverse inference being drawn by the Court against the Respondent on this issue.

[49] The Respondent’s counsel argues that the Applicant must have known about the altered bank statement and other incorrect financial representations made by the Respondent to support her and A’s application to immigrate to Canada. The Respondent’s counsel submits that the Applicant should not be permitted to benefit from incorrect information given by the Respondent for her benefit.

[50] However, the Respondent testified that the Applicant did not know about the altered bank statement not the incorrect financial information in the sponsorship application. I find there is no evidence that the Applicant knew that the information supplied by the Respondent in and with the sponsorship application was incorrect.

[51] Accordingly, I find that this bank account should be listed as part of the Respondent’s assets at the date of separation. As the Respondent has not seen fit to comply with the order to provide documentary evidence of the amount in the account at the date of separation, the last evidence of the balance before the court is the balance in the account at February 29, 2012 where the closing balance on that statement was $18,835.29. As the account was allegedly in joint names, I find that one half of this bank account in the sum of $9,417.65 should be included in the Respondent’s assets at the date of separation for the calculation of his net family property in the Net Family Property Statement.

Scotiabank Bank account

[52] The Respondent acknowledges that this account ending with the numbers 83 is registered in his name. His evidence however is that it is his adult son who puts money in this account and it is his adult son who uses this account. The Respondent states that he was on the payroll of his adult son’s company and that the amounts going into the account were monies the Respondent was paid by that company.

[53] On the evidence before me, I find that this account is in the Respondent’s name and that it contained monies which he was paid by his adult son’s company for work the Respondent did and which monies the Respondent claimed for Canadian income tax purposes. Accordingly, I find that the amount of $12,637.47 in this bank account shall be shown on the Respondent’s Net Family Property Statement as at the date of marriage, and the amount of $19,206.03 in this bank account shall be shown on the Respondent’s Net Family Property Statement as at the date of separation.

The Respondent’s Vehicles

[54] In his Financial Statement sworn February 27, 2018, the Respondent originally showed his 1999 Mustang convertible as having a value of $1,500.00 at the date of separation. He did not produce any documentary proof of that value. At trial, the Respondent testified that he would not sell that vehicle for $2,000.00. Accordingly, the Applicant submits that the figure of $2,000.00 should be shown as the value of the vehicle at the date of separation, which I find is reasonable on the evidence.

[55] Neither party produced any evidence of the value of the Respondent’s 2000 Ford Explorer at the date of separation. I have not shown any value for this vehicle on the Net Family Property Statement.

The Business owned by the Respondent’s adult son

[56] The Applicant testified that the Respondent told her that he was a 25% owner in his adult son’s construction business and that he was Vice-President of that company. The Respondent denies that he ever told the Applicant that. His evidence is that he does not have and never has had an interest in his adult son’s construction business.

[57] The Respondent’s adult son testified at the trial that the Respondent had never had any interest in his company although he acknowledged that he once wrote a letter for the Respondent dated March 8, 2012 “To Whom It May Concern”, indicating that the Respondent has full-time employment with his company as “Partiner (sic)/Vice President-Project Manager”. In the signature line, the adult son showed himself as “Owner/President” of the company. The Respondent’s adult son testified that he wrote this letter to support the Respondent’s sponsorship application. The Respondent’s adult son testified that he is the sole owner of the business and owns 100% of the shares in the company. He testified that the Respondent has no interest in the business, has never owned any shares of the business and has never been an officer or director of the company. He acknowledged that the Respondent has limited signing authority to sign cheques for the company and is one of several people so designated. This enabled to the Respondent to sign pay cheques when the adult son was away.

[58] On the evidence before me I am not satisfied that the Applicant has proven that the Respondent had any ownership in his adult son’s company. I have not included this item in the Net Family Property Statement.

Deduction claimed by the Respondent at valuation date

[59] As the Applicant in the Net Family Property Statement submitted in her submissions has included a Mastercard debt of $630.87 for the Respondent at the date of separation, I find that debt is not disputed by the Applicant and I have included it in the Net Family Property Statement.

[60] The Respondent claims accounts payable at the date of separation of $58,887.81 for renovations done to his apartments in Germany. At trial, the Respondent filed the documents upon which he relies regarding this claim for a deduction.

[61] In those documents, there are three invoices for legal fees to a law firm in Germany which the Respondent states relate to legal steps he had to take against contractors in 2015 for poor work on the renovations, as well as other invoices for work and materials.

[62] The invoices are as follows: (1) Invoice for legal work dated April 13, 2015 for the period from January 7, 2015 to April 13, 2015 for 2,730.61 Euros and which the Respondent was requested to pay before May 4, 2015. (2) Invoice for legal work dated June 17, 2015 for the period from April 14, 2015 to June 17, 2015 for 3,057.17 Euros and which the Respondent was requested to pay before July 8, 2015. (3) Invoice for legal work dated September 16, 2015 for the period from June 18, 2015 to September, 2015 for 1,547.64 Euros and which the Respondent was requested to pay before October 7, 2015. (4) An invoice for ventilators, and accessories and installation dated January 27, 2015 for 13,814.20 Euros. The invoice refers to a tax deduction certificate for construction work performed. (5) An invoice for dismantling an old kitchen and installing new counter, etc. dated September 22, 2015 for 3,232.15 Euros for work to be done in October, 2015.

[63] By my calculations, these invoices total 24,381.77 Euros which at a conversion rate of 1.5 would be $36,572.66, rather than the $58,887.81 deduction claimed by the Respondent.

[64] The Applicant contests the inclusion of the Respondent’s claims for these expenses in his Net Family Property Statement as a deduction at the date of separation. The Applicant submits that the Respondent was able to deduct these expenses for tax purposes against his rental income for 2015 and should not be allowed to take this deduction.

[65] On the evidence, I find the invoice for the kitchen work was dated after the date of separation and was for work done after the date of separation and should not be permitted as a deduction.

[66] With respect to the other invoices, there is no evidence that the invoices dated prior to the separation had not been paid by the date of separation. Regarding the legal invoice for legal work done which spanned a period before and after the date of separation, that is June 18, 2015 to September, 2015, there is no breakdown of what amount applied to which period, although I note there are detailed dockets for the other two invoices for legal fees submitted prior to that period.

[67] The Respondent did take a deduction for the renovations and legal fees in his German income tax filings for 2015, which resulted in the Respondent having a net loss in rental income from his German apartments in 2015 in the sum of 24,972 Euros which at a 1.5 conversion rate is ($37, 458.00) Canadian dollars.

[68] The onus is on the Respondent to satisfy the court that he is entitled to the deduction. On the evidence before me, and for the aforesaid reasons, I am not satisfied that the Respondent has proven that he is entitled to this deduction. Accordingly, I have not included this deduction in the Net Family Property Statement.

Pre-marital Property claimed by the Respondent

[69] The Respondent has claimed a deduction for the value of certain premarital property which he alleges he owned at the date of marriage. The parties have agreed on the value of the Respondent’s German apartments at that date. The Respondent also claims that he had general household items and vehicles of $17,000.00. and bank account savings of $1,759.72.

[70] In her Net Family Property Statement the Applicant has not included the deduction claimed by the Respondent for general household items and vehicles. The onus is on the Respondent to prove the deduction. As the Respondent did not put forward any evidence of the value of the general household items and vehicles which he claims he owned at the date of marriage, I have not allowed this deduction and I have not included it in the Net Family Property Statement.

[71] As I have determined that the Scotia Bank account ending in 83 is in the Respondent’s name and is his account, I have allowed a deduction for the amount in that account at the date of marriage in the sum of $12,637.47.

Equalization of Net Family Property

[72] I have prepared and attached to the copy of this Judgment provided to the parties a copy of a Net Family Property Statement in accordance with the items agreed upon by the parties to be included and in accordance with the findings I have made in this Judgment. I find that in accordance with that Net Family Property Statement, the Respondent shall pay to the Applicant an equalization payment in the sum of $169,813.16.

What is the annual income of the Respondent?

[73] The Applicant submits that the Respondent’s income should be found to be an average of $82,994.00 for the 3 years of income prior to the year of separation for the purposes of child and spousal support.

[74] The Respondent submits that his historical income prior to separation is not relevant as he is now 67 years of age and accordingly he cannot be expected to or forced to go back to work. In his Financial Statement dated February 27, 2018, the Respondent stated he had been unemployed since September 29, 2014. The Respondent submits that his income should be found to be $44,000.00 per year based on his CPP pension of $135.00 per month, his Old Age Security of $396.00 per month and his German pension of $430.00 per month (total pension income of $961.00 per month or $11,532 per year) and his German rental income of $2,700.00 per month (based on 21,000 to 22,000 Euros per year) or $32,400.00 per year.

[75] The Applicant relies on the following information regarding the Respondent’s income for her calculation of an income of $82,994.00 per year income for the Respondent:

2011

[76] The Respondent reported to Citizenship and Immigration Canada that he had income of $114,440.00 made up of employment income of $52,000.00 from the company owned by his adult son and $62,440.00 from his German rental properties. At trial, the Respondent claimed that the $62,440.00 was his gross rental income before expenses.

[77] The Respondent’s actual T4 submitted to Canada Revenue Agency from his adult son’s company for 2011 was $41,184.00. His actual German net rental income for 2011 is unknown as no documentation was produced.

[78] Accordingly, the Respondent’s 2011 total income is believed to be $103,624.00.

2012

[79] The Respondent’s T4 for income from his adult son’s company was $52,000.00. According to the Respondent’s 2012 Assessment from Germany, the Respondent had net rental income of 12,577 Euros which at 1.5 conversion rate is $18,865.00.

[80] Accordingly, the Respondent’s 2012 total income was $70,865.00.

2013

[81] The Respondent had employment income from his adult son’s company of $82,680.00. According to the Respondent’s 2013 Assessment from Germany, the Respondent had German net rental income of 17,130 Euros which at 1.5 conversion rate is $25,695.00.

[82] Accordingly, the Respondent’s 2013 total income was $108,375.00.

2014

[83] The Respondent had employment income from his adult son’s company of $53,040.00. According to the Respondent’s 2014 Assessment from Germany, the Respondent had net German rental income of 11,135 Euros which at 1.5 conversion rate is $16,702.00.

[84] Accordingly, the Respondent’s 2014 total income was $69,742.00.

2015

[85] According to the Respondent’s 2015 tax assessment from Germany, the Respondent had a net rental income loss of 24,972 Euros which at 1.5 conversion rate is a negative (37,458.00). In the Respondent’s sworn financial Statement of November 2, 2015, the Respondent states that he has no income. The Respondent did not produce his Canadian 2015 income tax return or 2015 Notice of Assessment although required by the Family Law Rules to do so.

[86] Accordingly, the Respondent’s total income for 2015 is unknown.

2016

[87] The Respondent did not produce his Canadian 2016 income tax return or his 2016 Notice of Assessment. As per the Respondent’s Assessment from Germany, the Respondent had net rental income of 21,556 Euros which at 1.5 conversion rate is $32,334.00.

[88] Accordingly, the Respondent’s total income for 2016 is unknown.

2017

[89] The Respondent’s Canadian 2017 Notice of Assessment shows a Line 150 income of $4,343.00. The Respondent did not produce his 2017 Income Tax Return. The Respondent’s tax assessment from Germany in 2017 was not produced. It is the Respondent’s evidence that the Assessment is always two years behind the tax year in question. The Respondent’s net rental income and the amount received from his German pension in 2017 are unknown.

[90] Accordingly, the Respondent’s total income for 2017 is unknown.

2018

[91] The Respondent’s 2018 Canadian Tax Return summary shows Line 150 income of $6,424.00, which is made up of Old Age Security Pension of $4,806.87 and CPP benefits of $1,617.84. The Respondent’s Assessment from Germany for 2018 is apparently not available until two years after the tax year in question. The Respondent’s net rental income and the amount received from his German pension in 2018 are unknown.

[92] Accordingly, the Respondent’s total income for 2018 is unknown.

Should income be imputed to the Respondent

[93] In a family law matter where equalization of property and child support and spousal support are at issue, it is imperative that each party make full financial disclosure to the other so that the court has the necessary information to determine the equalization of net family property and the income of each party for the calculation of child and spousal support.

[94] In the matter before me I find that the financial disclosure of the Respondent was inadequate and severely lacking in many respects.

[95] The Respondent had only two sworn Financial Statements before the court. The first was sworn November 2, 2015. The second was sworn February 27, 2018. Pursuant to Rule 13(12) of the Family Law Rules, the Respondent was required to file a new Financial Statement at least four days prior to the trial. Alternatively, the Respondent was required to file an affidavit at least four days prior to trial saying that the information in the last statement has not changed and is still true, or detail any minor changes in that affidavit. The Respondent did file an Affidavit sworn July 4, 2019 just before trial that the information in his Financial Statement sworn Feb. 27, 2018 had not changed and continues to be true.

[96] However, the Applicant’s counsel pointed out a number of errors or omissions in the Respondent’s Financial Statement sworn February 27, 2018, such as the omission of his Bank of Nova Scotia bank account ending in 83 which had a large balance on the date of separation but was not included in the Respondent’s Financial Statement, and the omission of a number of the Respondent’s VR bank accounts. These omissions were not corrected in the Respondent’s affidavit sworn July 4, 2019 even though known by the Respondent as he had received the VR Bank letter dated April 20, 2018.

[97] In fact, in his Financial Statement sworn February 27, 2018, the Respondent showed only three bank accounts at the date of separation with a total of $13,361.91 in these accounts whereas I have found that the Respondent had a total of nine bank accounts at the date of separation with a total value of $187,182.48 in these accounts. The Respondent’s Canadian statement of income for 2018 was only provided to the Applicant during the course of the trial.

[98] A substantial portion of the Respondent’s income is derived from rental income received by him from apartments he owns in Germany. However, The Respondent did not produce his German income tax assessments for the years 2017 or 2018. His evidence is that German tax assessments are always done two years behind. This appears to be the case. However, in all of the German tax assessments produced by the Respondent they all appear to have been dated prior to the end of April two years later than the year in question. Accordingly, in my view, it is quite likely that the 2017 German tax return would have been received by the Respondent by the time of trial in July, 2019 and should have been produced to the court. With respect to 2017 and 2018 no draft statements regarding the Respondent’s net rental income for those two years was produced for the court, even though it is likely the Respondent would have had to submit these income and expense numbers to the German tax department at the time he filed his returns. In any event, the Respondent must have some idea of his net rental income for those years but provided no evidence of that income. As a result, there was no documentary evidence whatsoever before the court as to the Respondent’s net rental income for 2017 and 2018.

[99] The Respondent produced his 2018 Canadian Tax Return Summary but only during the course of the trial. He did not produce his 2018 Notice of Assessment.

[100] The Respondent did not produce any documentary proof whatsoever of the monthly amount of his German pension.

[101] From an unknown time to up until the time of separation in 2015, the Respondent worked for his adult son’s company according to documentary evidence including T4s and income tax returns filed at this trial. For example, there was a 2010 T4 showing the Respondent worked for the company in 2010. Both the Respondent and his adult son testified that the Respondent’s employment with the company was started to support the Respondent’s sponsorship application. Nevertheless the Respondent and his son continued it even after the Applicant and the child A immigrated to Canada as it was financially beneficial both to the Respondent and to his son. The Respondent alleges that his employment stopped at his adult son’s company after 2014 due to lack of work in 2015 and that it has never been re-started. Coincidentally or not, this termination of income from the adult son’s company coincided reasonably closely with the separation of the parties.

[102] The Respondent’s position at trial is that he did not really work at his adult son’s company. He stated that he only helped out for free sometimes. The Respondent had his own construction business in Germany before he moved to Canada. He had experience which would likely be of assistance to his adult son’s company.

[103] The Respondent submits that since he is now over 65 years of age, he need no longer be employed and no one can force him to be employed. However, there is no reason the Respondent could not work full or at least part-time. Up until 2015, the Respondent was paid by his adult son’s company. His adult son’s evidence was that there was no set schedule for the Respondent’s pay although other employees had a regular schedule. The Respondent’s adult son testified that the Respondent helped out sometimes even after separation and there were a couple of photographs produced by the Applicant of the Respondent working after the date of separation. The Respondent’s adult son testified that in one picture the Respondent re-poured and re-surfaced a pool deck in Oshawa. The Respondent’s adult son acknowledges that if he is short-handed, the Respondent helps out and also the adult son gets the Respondent to pick up supplies. The adult son states that the Respondent comes to the company office sometimes a couple of times per week and sometimes a couple of times per month when the Respondent is not away.

[104] There is no reason the Respondent could not do some work for his adult son’s company or work for other companies. There were no claims that the Respondent is medically unable to work and there was no medical evidence produced to that effect. The Respondent is the father of the 10 year old child in this case. That child is in need of child support and contribution to Section 7 expenses. That need will only increase over the forthcoming years as the child’s expenses increase and as the child commences post-secondary education. I find that the Respondent is intentionally under-employed or unemployed.

[105] The Respondent resides in the original home on the farm property owned by his adult son. He pays no rent to his adult son. He does not pay any mortgage, taxes or insurance. The Respondent only pays hydro and his own personal expenses. In an affidavit filed during the course of litigation, the Respondent stated that his adult son helps him out with fuel as well.

[106] When the Respondent travels south in the winter, he closes down the original house on the farm property and the Respondent’s evidence is that he books flights that are inexpensive by not booking direct flights. The Respondent testifies that he stays with friends in southern climates during the winter and in countries where the cost of living is very low and his expenses are negligible. Last winter he was away for four and a half months. The friends will then come and visit him in Canada during the summer.

[107] In addition, after separation, the Respondent’s adult son purchased a gift for the Respondent of a used SUV (value $12,000.00 to $13,000.00) and a used travel trailer vehicle (value of $13,000.00 to $14,000.00) after separation. The adult son could not remember if he paid for those vehicles personally or his business did.

[108] The adult son says he put the SUV in the Respondent’s name as he states that the Respondent is always driving people around in the vehicle, from which I understood were people working for the adult son’s company.

[109] The Respondent stated that his adult son sometimes gave him money if he needed it. The adult son testified that he has given some money to the Respondent since the separation but he doesn’t know what his father used it for other than the adult son did give his father some money for legal fees. The adult son stated that he has perhaps given his father $40,000.00 to $50,000.00 but he is not expecting to be repaid.

[110] I find that the Respondent has the benefit of having minimal shelter expenses throughout the year as opposed to the majority of people who have shelter expenses which are a major item in their living expenses budget. This benefit has a substantial monetary value to the Respondent upon which the Respondent pays no income tax.

[111] Section 19 of the Federal Child Support Guidelines permits the Court to impute such amount of income as it considers appropriate in the circumstances which include a non-exhaustive list of such circumstances. One of those circumstances in Section 19(1)(f) is where the spouse has failed to provide income information when under a legal obligation to do so.

[112] As can be seen from the review of the Respondent’s income for the year of separation in 2015 to the date of trial, there are a number of instances where the Respondent has failed to produce adequate Canadian and/or German tax return information which he is required to do by Rule 13 (7) (Requirements for Filing) and in Rule 13 (12) (Updating Financial Statement) of the Family Law Rules. The Respondent has not provided documentary proof of his German pension which should be readily available.

[113] The failure of the Respondent to produce this financial information including up to date income information has made it very difficult for the Applicant or the Court to be in a position to determine the actual income of the Respondent. The income of $44,000.00 which the Respondent relies on for calculating child support at trial is actually his 2016 income.

[114] The Respondent acknowledges income of $44,00.00 per year. Taking into account the Respondent’s lack of financial disclosure, the benefits he receives from his son by way of shelter and transportation upon which he pays no income tax, and my finding that the Respondent is intentionally under-employed or unemployed, I find that income should be imputed to the Respondent in the amount of $1,100.00 per month which should be grossed up as it is non-taxable to the Respondent. When this imputed income is grossed up, the Respondent’s gross income is $63,452.00 per year. A DivorceMate calculation is provided to the parties with these Reasons for Judgment.

Previous Temporary Child Support Orders made

[115] A temporary order was made on consent of both parties on February 11, 2016 that the Respondent pay to the Applicant child support in the sum of $600.00 per month and spousal support of $1,100.00 per month. The order was silent as to on what income that was based. On the Child Support Guideline Tables in force at that time, an income of approximately $66,000.00 would produce a child support payment of approximately $600.00 per month.

[116] On November 20, 2018, on motion by the Respondent to reduce the child and spousal support order, the temporary child support order was varied to $450.00 per month. In setting that figure, there was no reference to the Respondent’s income. On the Child Support Guideline tables in force at that time, an income of approximately $48,700.00 would require a child support payment of $450.00 per month.

[117] However, later in the order of November 20, 2018, when dealing with Section 7 expenses, the court based the division of Section 7 expenses on the Respondent’s estimated income of $50,000.00. The Guideline amount required on an annual income of $50,000.00 would be $461.00 per month.

[118] The Respondent has made all of the child support payments and spousal support payments ordered by the court. There is no evidence that the Respondent has had to go into debt in order to make those payments.

What ongoing child support should be paid by the Respondent?

[119] I have determined that the Respondent has imputed income in the sum of $63,452.00 per year. Accordingly, the Respondent shall pay to the Applicant for the support of the child A, the sum of $589.00 per month commencing December 1, 2019 and on the 1st day of each month thereafter for so long as the child A is a “child of the marriage” within the meaning of the Divorce Act.

What is the annual income of the Applicant?

[120] When the Applicant came to Canada, she was at home caring for the parties’ son who was only 3 years old. At some point the Applicant started doing some cleaning work, but during the marriage, the Applicant was primarily dependent on the Respondent for her support.

[121] Since separation, the Applicant has been attending University. She has completed two years of a four year program and planned to start her third year in September, 2019. She is studying English, French, Spanish and Arabic and hopes to ultimately obtain a Masters in Linguistics.

[122] According to the Applicant’s Notices of Assessment, the Applicant’s Line 150 income from 2014 to 2018 is as follows:

2014 $6,250.00 2015 $13,158.00 2016 $8,467.00 2017 $14.492.00 2018 $13,500.00

[123] The Applicant’s 2018 gross income of $13,500.00 consisted of $13,2000.00 spousal support and $300.00 house cleaning. The Applicant testified that she is not doing cleaning anymore as she is too busy with school and has to pay someone to look after the child. The Respondent was away in the south for four and a half months last winter and was not exercising his alternate weekend access. The Applicant testified that she had no cleaning jobs in 2019.

[124] The Applicant and the child live in subsidized housing at a rent of $455.88 per month plus utilities plus $36.85 per month parking.

[125] The Applicant does receive OSAP which appears to be about $8,000.00 per term. The Applicant’s evidence is that she now owes OSAP approximately $21,000.00. Unfortunately, the Applicant did not produce any documentary evidence regarding her OSAP.

Previous spousal support orders made

[126] On consent of the parties, a temporary order was made that the Respondent pay spousal support to the Applicant in the sum of $1,100.00 per month.

[127] On November 20, 2018, the Respondent’s motion to reduce the spousal support and for repayment of an overpayment of spousal support was dismissed and it was ordered that such claim could be considered at the trial of this matter.

What spousal support should be paid by the Respondent?

[128] The Applicant is a full-time student and is the primary caregiver for the child. The Applicant is taking steps to obtain her education so that she will be in a better position to provide for herself and the child in the future. The Respondent has no employment income. Due to the demands of full-time university studies and her childcare responsibilities, particularly where the Respondent is out of the country and not exercising his weekend parenting time for four and a half months in the winter, I do not find it unreasonable that the Applicant is not employed at this time.

[129] I find that the Applicant is in need of spousal support and that the Respondent has the ability to pay spousal support.

[130] Based on the Respondent’s imputed income of $63,452.00 and the Applicant having no income, the Spousal Support Advisory Guidelines provide for a low amount of $1,196.00, a mid amount of $1,354.00 and a high amount of $1,518.00 of spousal support for an indefinite, (unspecified) duration, subject to variation and possible review, with a minimum duration of 4.25 years and a maximum duration of 12 years from the date of separation.

[131] Taking into account all the circumstances of this case, I find that the Respondent shall pay to the Applicant spousal support at the mid amount in the sum of $1,354.00 per month commencing December 1, 2019 and on the 1st day of each and every month thereafter subject to variation in the event of a material change in circumstances. This spousal support order shall also be subject to review by either party after the Applicant graduates from her current 4 year university program or ceases to attend her current 4 year university program.

Should there be a retroactive reduction in spousal support?

[132] The original spousal support order on consent was $1,100.00 per month. The Respondent claims a retroactive reduction of spousal support and a repayment of any overpayment. I find that there are no grounds for a retroactive variation of spousal support and I dismiss that claim.

Past Section 7 Expenses

[133] On November, 20, 2018, there was a temporary order made that commencing December 1, 2018 and based upon the Respondent’s estimated income of $50,000.00 and the Applicant’s income of $8,500.00 for support purposes, the parties shall share the child’s s. 7 expenses with the Respondent contributing 78% of the cost of such expenses and the Applicant contributing 22% of such expenses.

[134] Contrary to the temporary order, the Respondent has not contributed to the child’s section 7 expenses since December 1, 2018, nor did he contribute to the child’s Section 7 expenses since the date of separation with the exception of a payment he made towards the child’s modelling course expenses.

[135] The Applicant claims s. 7 expenses for the period from the date of separation on August 15, 2015 to July 7, 2019. The expenses total $5,084.24. The expenses relate to child care, piano lessons, soccer, modelling course expenses, membership at the YMCA, and a summer literacy program. The expenses claimed are supported by receipts. The Applicant’s evidence is that there are other s. 7 expenses which she did not claim as she could not find the receipts for those expenses.

[136] I find that the s. 7 expenses claimed by the Applicant are extraordinary expenses and that the Respondent as confirmed in his evidence was aware that the child was involved in these activities. I find that these expenses are reasonable. I find that the Respondent should pay his proportionate share of the s. 7 expenses.

[137] Accordingly, as the Respondent’s actual income from 2015 to 2019 is unknown (see information previously in the Judgment), I find it appropriate to calculate the retroactive s. 7 expenses on the basis of the November 20, 2018 order. Based on the Respondent paying 78% of the retroactive s. 7 expenses for August 2015 to July 7, 2019, the Respondent shall pay to the Applicant the sum of $3,813.18 towards the past s. 7 expenses of the child from the date of separation to July 7, 2019. In addition, the Respondent shall pay 78% of the cost of the s. 7 expenses incurred from July 7, 2019 to November 30, 2019. This sum owing shall be enforced as child support by the Office of Family Responsibility (“FRO”).

Ongoing Section 7 expenses

[138] Based on the Respondent’s imputed income of $63,452.00 and the Applicant’s income of $16,248.00 (spousal support), the parties shall share the child’s ongoing Section 7 special and extraordinary expenses proportionate to their incomes, with the division to be that the Respondent shall pay 74% of such expenses and the Applicant shall pay 26% of such expenses. The Respondent shall pay his share of such expenses to the Applicant within 15 days of the Applicant providing the receipt for the expense to the Respondent.

Provision of ongoing financial disclosure

[139] For so long as child or spousal support is payable, each party shall provide to the other by May 15 in each year commencing May 15, 2020, a copy of his and her Canadian income tax return and his and her Notice of Assessment within 15 days of his and her receipt thereof. In addition, the Respondent shall provide to the Applicant a copy of all of his German tax assessments commencing with his 2017 assessment within 15 days of his receipt thereof.

Should the Respondent be required to obtain life insurance?

[140] The Applicant seeks that the Respondent be required to obtain life insurance in the sum of $100,000.00 naming the Applicant as irrevocable beneficiary for so long as the Respondent has a spousal and/or child support obligation to the Applicant. This relief was not claimed in the Applicant’s pleadings.

[141] The Respondent does not have any life insurance. There was no evidence produced as to whether the Respondent would qualify for life insurance nor what would be the cost of such life insurance at his age of 67.

[142] On the evidence before me, I am not prepared to order the Respondent to obtain life insurance. However, I do make an order that the child and spousal support set out herein shall be a first charge and binding on the Respondent’s estate wherever located.

Divorce

The Applicant was granted leave to amend her Application to make a claim for a divorce. The Respondent does not contest the divorce. The parties have been separated since August, 2015. Order to go that the divorce shall be granted on November 29, 2019, with the divorce to take effect 31 days thereafter.

Costs

[143] If the parties are unable to agree on the issue of costs between themselves, the Applicant may serve and file written submissions regarding costs by December 20, 2019 of no more than 4 typewritten pages plus a Bill of Costs and any offers to settle. The Respondent may serve and file written submissions regarding costs of no more than 4 typewritten pages plus a Bill of Costs and any offers to settle by January 24, 2020. The Applicant may serve and file a written reply of no more than 2 pages within 10 days of receipt of the Respondent’s submissions as to costs. If no written submissions as to costs are served and filed within the aforesaid timelines, there shall be deemed to be no order as to costs.

Order

[144] Final Order to go in accordance with these Reasons for Judgment.

Justice A.C. Trousdale Released: November 29, 2019