Court File and Parties

COURT FILE NO.: FS-15-83145 DATE: February 1, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ana Cristina Nobrega Applicant

• and -

Michael Jerome MacLennan Respondent

COUNSEL: Matthew A. Newton, for the Applicant Carol A. Allen, for the Respondent

REASONS FOR JUDGMENT

BARNES J.

INTRODUCTION

[1] This is a family law trial. The Applicant, Ana Cristina Nobrega and the Respondent, Michael Jerome MacLennan, are separated. The areas of dispute in this matter are as follows:

• Ms. Nobrega’s interest in the property at 283 Beechgrove Side Road, Caledon, Ontario (the matrimonial home); • Equalization of net family property; • Whether Mr. MacLennan must pay Ms. Nobrega occupation rent; • Quantum of ongoing child support; • Child support arrears; • Ongoing spousal support; • Spousal support arrears; and • Section 7 expenses arrears.

[2] I have thoroughly considered the evidence and the submissions of counsel, however, I have only reproduced and referred to evidence to the extent necessary to provide context and to explain the conclusions I have reached in this case.

BACKGROUND

[3] The parties began dating in 1990. Thereafter, Mr. MacLennan received $696,868.00 from a personal injury claim. Payouts were made to him on December 30, 1991 and December 24, 1992. A matrimonial home was purchased and the parties moved in on March 29, 1993. Title to the property was placed only in Mr. MacLennan’s name. The matrimonial home was purchased without a mortgage. The parties lived together until they married on September 14, 1996.

[4] The parties have four children: Sara, born October 5, 1997; Colin, born May 8, 1999; Emma, born December 9, 2000; and Eric, born October 19, 2003. In 1995, the parties obtained a line of credit on the matrimonial home for their joint business which they operated for a period of time during the marriage.

[5] The line of credit was rolled into a mortgage in 2003. The parties are both jointly liable for this mortgage. They formally separated on May 13, 2012, but continued to live in the matrimonial home. Efforts to resolve issues amicably were unsuccessful and Ms. Nobrega left the matrimonial home with the eldest child, Sara, in September 2014. A shared parenting arrangement was implemented with respect to the other three children.

[6] The parties agree that they were involved in a joint family venture in regards to the upkeep of the matrimonial home, raising their children, and taking care of the needs of the family in general. Issues of divorce, ongoing section 7 expenses, Ms. Nobrega’s entitlement to spousal support, and custody and access were resolved by way of Final Minutes of Settlement on June 19, 2017 (“Final Minutes”).

[7] Ms. Nobrega is a nurse. She works part time and has worked with the same employer since 2000. Mr. MacLennan is a Deputy Superintendent for Corrections and had been with his employer since 1991.

PRELIMINARY MATTER

[8] In her Amended Application dated March 27, 2015 at page 10, paragraphs 44 to 49, Ms. Nobrega pleads 50% ownership in the matrimonial home by way of a constructive trust as follows:

44. Prior to the determination of the equalization issues, the Applicant Mother is first seeking a Declaration/Order that she is the beneficial owner of 50% of their Matrimonial Home, solely owned by the Respondent, by way of constructive trust and unjust enrichment based on her contributions to these assets and based on the benefits that the Respondent has retained as a result of the Applicant Mother’s contributions, for which he would be unjustly enriched by retaining 100% ownership of same.

45. The Respondent and Applicant Mother embarked on their journey together as a family unit and worked side by side, pooling their resources, financially and otherwise, in order to support and maintain their home and family. The mortgage on the Matrimonial Home is also in joint names even though the title is only in the name of the Respondent.

46. The parties owned an investment property in Orangeville which was purchased prior to marriage in November 1993 and was sold in 2000. The net sale proceeds from this jointly owned property were used to pay down the debts on the Matrimonial Home.

47. When the parties operated the family business together, they financed the business using the Matrimonial Home as collateral. The mortgage registered against the Matrimonial Home is also in joint names.

48. The Applicant Mother devoted everything she had, in terms of money, hard work, heart and energy, to their marriage, family and household. She believes that the Applicant would be unjustly enriched if he were to retain the benefit of full ownership of the Matrimonial Home.

49. The Applicant Mother pleads and relies upon both the common law and the law of equity in seeking an Order that the Respondent Father holds one-half of the Matrimonial Home on behalf of the/in trust for the Applicant Mother.

[9] At paragraph 41 of his Answer, dated May 21, 2015, Mr. MacLennan admits that Ms. Nobrega has a trust interest in the matrimonial home as follows:

……….he Respondent concedes that the Applicant has a trust claim to the Beech Grove property (emphasis added).

[10] Ms. Nobrega submits that the admission is a concession that she has an ownership interest in the matrimonial home by way of a constructive trust and conclusively resolves the issue of the nature of her interest in the matrimonial home. Therefore, she is entitled to 50% of any post-separation increase in the value of the matrimonial home.

[11] An admission shall be not withdrawn without the consent of the other party or permission from the court: Rule 22(5) Family Law Rules, O. Reg. 114/99. An admission is a concession of an important fact and is meant to stand unless the test for withdrawing it is met or the opposing party agrees that they will suffer no prejudice by the withdrawal and accordingly consents: Vaseloff v. Leo, 2013 ONSC 5270, at para. 8. A court may permit the withdrawal of an admission when it determines that it is in the interest of justice to do so: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161.

[12] Counsel for Mr. MacLennan did not seek permission to withdraw the admission. Instead, Mr. MacLennan simply advanced a different argument, being that Ms. Nobrega has a 50% interest in the home for the purpose of equalization. This interest crystalizes on October 15, 2014, a date close to the formal separation date of September 14, 2014. Beyond that date, Ms. Nobrega is not entitled to any post-separation growth in the value of the matrimonial home.

[13] I am satisfied that Ms. Nobrega would not be prejudiced if leave were granted to withdraw the admission. Mr. MacLennan’s position was clear during the trial. His new position was plain and obvious. Ms. Nobrega was adequately prepared. She led evidence and made submissions which contemplated circumstances of reliance and non-reliance by the court on the admission, however, Mr. MacLennan did not seek permission to withdraw the admission.

[14] A party who has made an admission cannot ignore the fact that the admission has been made and should not be shielded from any consequences flowing from a failure to comply with Rule 22 on their interests in the litigation. This is particularly the case where the admission is on a crucial issue. To proceed otherwise will be to condone a flagrant violation of the Rule. Without a request for permission to withdraw the admission, there is no evidentiary basis on which to assess whether it is in the interest of justice to permit the admission to be withdrawn. In this case, I have resolved the issues on the basis of other evidence.

DISCUSSION

Ms. Nobrega’s Interest in the Matrimonial Home

[15] Legal title of the matrimonial home is only in Mr. MacLennan’s name. Ms. Nobrega has a 50% ownership interest in the matrimonial home by way of a resulting trust. Therefore, she has a 50% interest in the post-separation value of the matrimonial home: Korman v. Korman, 2015 ONCA 578, 215 ONCA 578, 126 O.R. (3d) 561, at para. 40.

[16] The matrimonial home was purchased with money deposited in a joint account at a CIBC branch. The joint account was in the names of Mr. MacLennan and Ms. Nobrega. Both parties deposited money into this account and Mr. MacLennan deposited his personal injury monetary award into this joint account.

[17] The parties met in the summer, in July 1990. Ms. Nobrega moved into Mr. MacLennan’s apartment in April 1992. They married in September 1996. Ms. Nobrega said they opened a joint bank account in 1992. She said Mr. MacLennan had credit problems and issues with his bank account. She worked at CIBC, so they set up a joint bank account at CIBC. This account was opened before they were married. She deposited her income in the joint account. Money to purchase the matrimonial home came from this joint account. Ms. Nobrega provided no documentary evidence to prove that this CIBC account ever existed or that the money to purchase the home came from the joint account.

[18] Mr. MacLennan said he never had a joint account with Ms. Nobrega prior to marriage. He said they opened a joint bank account after marriage. He said that prior to marriage, he had his own bank account and he deposited his paycheck into his own account. Exhibit 3, Tab 3 is documentation showing the joint account which he and Ms. Nobrega opened in 1994.

[19] It is not disputed that Mr. MacLennan was paid just over $600,000 as a result of a personal injury claim. Mr. MacLennan said he received the payments in either 1991 or 1992. He said he went with his mother and a family friend to open an account to deposit the payout. He went to a CIBC branch to open a high-interest account. He said the family friend had some professional financial experience. The family friend, Mr. Marsden, is now deceased.

[20] Ann MacLennan is Mr. MacLennan’s mother. She said she was present when he received the payout from the personal injury claim. She confirmed that she accompanied Mr. MacLennan and Mr. Marsden to the CIBC bank where he opened an account and deposited the money into that account. She said Mr. MacLennan bought her a car and purchased the matrimonial home from money in his sole account. Ms. MacLennan did not remember the date of this trip to the bank.

[21] Ligia Nobrega is Ms. Nobrega’s mother. She is a retired banker. She said Ms. Nobrega and Mr. MacLennan periodically came to her for financial advice. She confirmed Ms. Nobrega’s account and said that the purchase of the matrimonial home was from the parties’ joint account at the CIBC branch where Ms. Nobrega worked. She said Ms. Nobrega showed her the bank passbooks which showed the deposit of the personal injury claim funds in the joint bank account. She explained that she holds Mr. MacLennan in high esteem and he told her about the settlement funds, however, he never told her where he deposited the funds. Mr. MacLennan said he did not recall whether he gave her this information.

[22] Ms. Nobrega and Ms. MacLennan are mothers. Their children are embroiled in a serious dispute. Due to the strong familial relationship to the parties and the strong motive to fabricate it creates, I give their testimony no weight.

[23] Mr. MacLennan and Ms. Nobrega provided no documentary evidence to prove the existence of either bank account they allege was opened prior to their marriage. Ms. Nobrega alleges it was the joint CIBC account, while Mr. MacLennan alleges it was his sole CIBC account. There is overwhelming evidence that Mr. MacLennan received personal injury settlement funds more than double the purchase price of the matrimonial home. Ms. Nobrega was working but did not have sufficient financial resources to pay for the matrimonial home alone.

[24] Ms. Nobrega said that she and Mr. MacLennan and his father, who is a real estate agent, went house hunting. She and Mr. MacLennan selected the matrimonial home. She could not sign relevant documents at the real estate lawyer’s office because on the day of signing, she had a school examination. She was also told it was okay if she did not attend. She said Mr. MacLennan signed the documents and put title only in his name.

[25] Mr. MacLennan said that he would not deposit such a large amount of money in a joint account with a girlfriend. This is a reasonable statement. The way the parties conducted themselves after they met requires very close scrutiny.

[26] The parties met in 1990. They were close. By April 1992, they were living together. They lived together for at least three years before they were married. The way they handled financial matters after marriage provides guidance on how they handled financial matters during their days as a common law couple. Ms. Nobrega was in charge of all financial affairs and paid the family’s financial obligations from a joint account. This was the role she said she played prior to marriage. Both parties agreed they were both responsible for living expenses prior to marriage, and Ms. Nobrega said these were paid for from the joint account.

[27] The parties went house hunting together. The real estate agent was Mr. MacLennan’s father. The parties agreed on which home to buy together. It is apparent that the parties trusted the real estate agent, who was a family member. It is reasonable to conclude that advice either party received from him will be trusted. Ms. Nobrega’s evidence – that she did not participate in signing documents because she had a school examination and she was assured that her presence was not necessary – is reasonable.

[28] The parties were both responsible for paying expenses related to the apartment. Both parties were working and had an income. Ms. Nobrega said she was responsible for paying the bills from the joint account. The practice continued after marriage where bills were paid from a joint account. The settlement payout was received during the parties’ common law relationship.

[29] All of these factors lead me to conclude that the parties set up a joint account prior to marriage. They deposited money into that account and used the joint account to pay their expenses. They integrated their financial affairs. Within this context, it was not unreasonable for Mr. MacLennan to deposit the settlement payout into the joint account, and in fact, I find that this is what happened. The funds for the purchase of the matrimonial home came from this joint account.

[30] At common law, a resulting trust arises where a party purchases property and title to the property is taken in the name of that party and another as joint tenants, or where title is taken in the name of another person. This trust recognizes the property interest of persons who contributed to the acquisition of the property whether that person is on title or not. This is a trust claim based on the “specific contribution of funds to the acquisition of the home [property], causing the interest in the home [property] to “result” back to the contributing party by way of trust interest in the home [property]”: Cerenzia v. Cerenzia, 2015 ONSC 7305, 68 R.F.L. (7th) 333, at para. 53.

[31] Section 14 of the Family Law Act, R.S.O. 1990, c. F.3 reads as follows:

14: The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,

(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and

(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a).

[32] Section 14 of the Family Law Act enables Ms. Nobrega to seek an ownership interest in the matrimonial home by way of a resulting trust. As a result of the purchase of the matrimonial home from the joint account of the parties, both parties contributed to the purchase of the property and have an ownership interest in the property as joint tenants. It matters not that Mr. MacLennan made the lion share of the contribution to the purchase of the matrimonial home. Therefore, Ms. Nobrega is entitled to a 50% share in the post-separation increase in the value of the home.

Equalization of Net Family Property

[33] Sections 4 and 5 of the Family Law Act set out the process and relevant considerations in equalizing net family property. This is summarised by the Ontario Court of Appeal in Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513 (Ont. C.A.), at para. 33 as follows:

,…… the court must take the following steps in determining spouses' rights under Part I of the FLA:

1. The court must establish the net family property of each spouse. It is only when that function has been performed that the court is in a position to apply s. 5(1) of the FLA, which is the next step. This first step must be undertaken in light of the provisions of s. 4. This means that the court must:

(a) determine what "property" each spouse owned on valuation day, and (b) value that property after making deductions and allowing exemptions as provided in s. 4.

2. The court must determine whether one spouse's net family property is less than that of the other. If so, s. 5(1) provides for equalization, which is effected by ordering a payment of one-half of the difference between them. However, before making that order, the court must proceed to the third step.

3. The court must decide whether, because of the considerations contained in s. 5(6), it would be unconscionable to equalize the net family properties. If so, the court may make an award that is more or less than half the difference between the net family properties. If not, the net family properties are equalized as set out in step 2.

[34] The formal date of separation is May 13, 2012. This is the valuation date for equalization payment calculation purposes. The parties had a few areas of dispute. Where items were disputed, the court preferred the estimates of the party submitting the item as an asset. This is because there is no other evidence on the condition of the asset than that provided by the party in possession of the asset. On the issue of contingent liability of Mr. MacLennan’s RRSP, I accepted Mr. MacLennan’s figure as it was easier to verify from the documentation provided. The contingent liability for pension disposal for Mr. MacLennan has been removed at his request. He explained that he intends to utilise a portion of his pension to pay any equalization payment. Details of the equalization calculation are provided in Appendix B. Based on the calculations, Mr. MacLennan owes Ms. Nobrega an equalization payment of $92,235.06. This case does not warrant an application of section 5(6) of the Family Law Act.

[35] This payment is subject to an adjustment (reduction) of $8727.69. Unless stated otherwise, the parties are equally liable for the debts listed below. The adjustments represent a reduction in the equalization payment as follows:

1. Scotia Visa xx35 has a joint debt of $5,063.71, incurred after the valuation date. Ms. Nobrega’s share of this debt is $2,531.86.
2. A Scotia Visa with a debt of $15,273.20 is joint debt incurred after the valuation date. Ms. Nobrega’s share of this debt is $7,636.60.
3. The overdraft interest is joint debt. Ms. Nobrega is responsible $152.53.
4. There is a Rogers Bill of $612.99. Ms. Nobrega is responsible for $306.50.
5. Ms. Nobrega share of 50% of utilities is $1,678.52.
6. Regarding the RRSP payout, there is no adjustment given. No documentation was provided to show that money was spent on the family and to pay family debts.
7. Regarding the debt to John and Debbie Marasovic of $3,800, Ms. Nobrega will pay it. She shall accordingly receive credit of $1,900.00.

Occupation Rent

[36] I have found Ms. Nobrega as an owner via a resulting trust. Mr. MacLennan has resided in the matrimonial home since Ms. Nobrega moved out in 2014. He now has a partner living in the home who contributes $1,700 towards household expenses.

[37] Factors to consider in determining whether occupation rent should be awarded are summarised by LeMay J. in Ajayi v. Oziegbe, 2017 ONSC 2732, [2017] W.D.F.L. 3662, at para. 103 as follows:

1. Title to half the property should have been with the non-titled spouse and their equity has been tied up in the home, preventing them from investing it elsewhere;

2. The non-titled spouse is responsible for the carrying costa of the home; and

3. The delay in the non-titled spouse in obtaining their equity is a result of the Respondent defending the case and claiming that the Applicant was not entitled to the current value of the home.

[38] All the factors set out in Ajayi are present in this case. Mr. MacLennan’s document, dated May 11, 2017, shows total carrying costs for the matrimonial home of $2,300.19. This is the total of the monthly mortgage, property taxes, and cost of utilities. Ms. Nobrega’s share of the carrying costs for the matrimonial home is 50%: $1,150.10. Mr. MacLennan’s partner lives in the home and contributes $1,700.00 monthly to household expenses. It is fair and reasonable in all the circumstances for Mr. MacLennan to pay occupation rent of $1,150.10 monthly. This amount is set off by Ms. Nobrega’s monthly share of the carrying costs for the matrimonial home.

Child Support

[39] The parties are in agreement on their respective incomes for the years 2012 to 2016 and the Guideline child support payable. They disagree on Mr. MacLennan’s 2017 income, which will form the basis of the calculation of ongoing monthly child support. Mr. MacLennan submits that this should be based on his 2017 income of $93,598.93. Ms. Nobrega submits it should be based on his 2016 income of $111,551.72. I find his income to be $111,551.72.

[40] A court may make a child support order in accordance with applicable guidelines: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), ss. 15.1(1)-(3). The starting point for income determination is a payor’s income tax return: Federal Child Support Guidelines, SOR/97-175, s. 16 (the “Guidelines”).

[41] As part of the Final Minutes, the parties have agreed on their annual incomes for the period 2012 to 2016 as follows:

Mr. MacLennan: • 2012: $113,209.33; • 2013: $119, 318.89; • 2014: $105, 753.28; • 2015: 102, 260.96; and • 2016: $111,551.72.

Ms. Nobrega: • 2013: $64,434.00; • 2014: $57,801;; • 2015: $58,632.48; and • 2016: $64,267.84.

[42] The parties also agreed to exchange their tax returns on June 1 of each year commencing in 2018, and to adjust child support in accordance with the Guidelines.

[43] Mr. MacLennan was promoted to Deputy Superintendent in August 2017. This placed him in the management group and exempted him from paid overtime. He explained that in previous years, he increased his base income, as non-management staff, by working overtime. The promotion reduced his 2016 income of $111,551.72 to an income of $93,598.93 in 2017. He explained that although he makes less money now, his new position has a higher salary range. Thus, over time, his income will increase to a higher income compared to his pre-promotion income and will benefit the children because child support will increase accordingly.

[44] Ms. Nobrega submits that Mr. MacLennan has voluntarily taken a position that will pay him less money for at least a couple of years. His action is prejudicial to the children because in the immediate future, they will receive less child support due to his decreased income. Therefore, ongoing child support should be determined on the basis of his 2016 income. In effect, Ms. Nobrega is asking the court to impute income to Mr. MacLennan

[45] Section 19(1)(a) of the Guidelines state that a court may impute income to a spouse when:

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

[46] In applying section 19(1)(a), the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23 set out the legal test as follows:

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

2. If so, is the intentional under-employment or unemployment required by virtue of [the needs of a child of the marriage or any child under the age of majority or by the reasonable health] or the reasonable educational needs of the spouse?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[47] A finding of bad faith or an intention to evade support obligations are not prerequisites for concluding that the payor is underemployed: Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14. Mr. MacLennan is intentionally underemployed.

[48] Mr. MacLennan has chosen to accept a promotion which, ironically, reduces his income. He has intentionally taken on a position which reduces his income and eliminates the possibility of increasing his income through paid overtime. I accept Mr. MacLennan’s evidence that this promotion means the upper range of his salary is higher than the upper salary range for his previous position, and that in the future, his salary will increase.

[49] Mr. MacLennan’s 2017 annual income is $93,598.93. In comparison to his 2012 income, this is a reduction of $18,209.33. Compared to his 2016 income, it constitutes a reduction of $16,555.72. This reduction has an immediate detrimental impact on the children because Guideline child support is reduced because of his decision to accept a position that reduces his base salary and exempts him from paid overtime.

[50] Mr. MacLennan’s Financial Statement shows that his annual expenses exceed his annual income by approximately $20,000. Mr. MacLennan lives with a new partner, whose annual salary is just over $100,000. Mr. MacLennan said that her financial contributions enable him to pay for annual expenses that exceed his annual income. This is a reasonable explanation. He also borrowed money from his mother for living expenses.

[51] From Mr. MacLennan’s view point, it is reasonable for him to seek a position that will allow him to earn a higher salary in the long term without necessitating the need for paid overtime to achieve this objective. This view point has no bearing on “the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse [Mr. MacLennan]”: Guidelines, s. 19(1)(a). This is unreasonable because the amount of child support necessary to address the children’s needs is immediately reduced.

[52] It is reasonable to impute income to Mr. MacLennan on an ongoing basis at his 2016 annual income amount of $111,551.72. Three of the four children, although still dependent, are over the age of 18 years old. Three of the four children are attending post-secondary education. The quantum of Mr. MacLennan’s 2016 income was due to his ability to work several hours of overtime. This opportunity is now gone. Therefore, Mr. MacLennan’s 2017 income is imputed to be $111,551.72 only until July 1, 2018, when ongoing child support will be recalculated based on the updated income tax information.

[53] Two of the children reside primarily with Ms. Nobrega. Two other children spend equal time with both parents. Ms. Nobrega’s 2017 income is $62,953. Mr. MacLennan’s income is $111,551.72. He shall pay the monthly Guideline amount of ongoing child support of $1,543.00

Child Support Arrears

[54] The parties are in agreement on the calculation of Mr. MacLennan’s child support arrears obligations and payments. However, they disagree on when exactly in September 2014 this obligation began. I conclude that it began on September 15, 2014.

[55] Ms. Nobrega and Mr. MacLennan separated on May 12, 2012 but lived in the same house and paid for family expenses from a joint bank account until Ms. Nobrega moved out of the house in September 2014. The parties deposited their salaries into that joint bank account. The parties agree that Ms. Nobrega’s exit from the matrimonial home triggered Mr. MacLennan’s obligation to make formal child support payments.

[56] Ms. Nobrega’s position is that the child support payments should be retroactive to September 1, 2014. Mr. MacLennan submits that Ms. Nobrega left the matrimonial home in mid-September 2014, and thus child support payments should commence on that date. Mr. MacLennan said he cashed in his RRSP to pay family debts and expenses. It is unclear what these debts and expenses were.

[57] Mr. MacLennan said after Ms. Nobrega left, he still deposited his income into the joint bank account. He did not provide evidence to substantiate this. Mr. MacLennan explained that this constituted child support. He said Ms. Nobrega paid the children’s expenses from that account. Ms. Nobrega disputes this claim. She said Mr. MacLennan’s contribution to the joint account ended when she moved out. She said shereceived no child support from Mr. MacLennan in 2014.

[58] Mr. MacLennan provided no documentary evidence to substantiate his claim of uninterrupted direct depositing of his paycheck into the joint account or child support payments in 2014. Therefore, I conclude that Mr. MacLennan made no child support payments after Ms. Nobrega left the matrimonial home in September 2014. Ms. Nobrega was unable to provide the exact date of her departure. Mr. MacLennan suggests it was mid-September 2014. Therefore, the date of departure is set at September 15, 2014. Mr. MacLennan made no child support payments from September 15, 2014 to December 2014.

[59] By mid-September 2014, Ms. Nobrega had moved out of the matrimonial home. There was shared parenting of three children and one child lived full-time with Ms. Nobrega. Mr. MacLennan’s 2014 income was $105,753.28 Ms. Nobrega’s income was $57,801.00. Guideline child support was $1,177.00. The amount for September is half the monthly amount. The total arrears from September 15, 2014 to December 1, 2014 is $4,119.50.

[60] My findings on the income of the parties and the child support payable by Mr. MacLennan for the years 2014 to 2018 are s out in Appendix A. By subtracting the amount of child support Mr. MacLennan paid from the amount of child support he should have paid during the period, I conclude that Mr. MacLennan owes child support arrears in the amount of $808.50.

[61] The parties shall adjust this figure accordingly to take into account the amount of child support actually paid by Mr. MacLennan in 2018 and 2019 prior to the release of these reasons. Should the parties be unable to agree, they shall apply to the court for direction.

Spousal Support

[62] Ms. Nobrega’s entitlement to spousal support is conceded. The evidence supports an entitlement on non-compensatory and compensatory grounds. Given this concession by Mr. MacLennan, a detailed analysis on the entitlement issue is unnecessary.

[63] Mr. MacLennan’s disclosed income is $93,598.93. I have imputed an income of $111,551.72 to him for child support purposes. Two of the children are in post-secondary studies. The other two are not far behind. There may be contributions to post-secondary education which require parental contributions proportionate to the incomes of the parties. Mr. MacLennan’s disclosed income suggests that a spousal support order at this time will cause him some financial hardship. Therefore, Mr. MacLennan shall pay ongoing monthly spousal support of $1.00 commencing on September 14, 2014. Based on the retroactive award, Mr. MacLennan shall pay $53.00 in spousal support arrears covering the period September 14, 2014 to February 1, 2019.

[64] This spousal support order is of indefinite duration and subject to the following:

(1) Any reduction or termination of child support shall constitute a material change in circumstance for a review and variation of this spousal support order;

(2) Should Mr. MacLennan’s income exceed $100,000.00, this shall constitute a material change in circumstance for a review and variation of this spousal support order;

(3) This spousal support order is for an indefinite period but shall be reviewed in four years without the need for a material change in circumstances; and

(4) Mr. MacLennan shall place Ms. Nobrega on his employment benefits. This provision of the order shall also be reviewed at the time of the spousal support review.

Section 7 Expense Arrears

[65] For the most part, after the September 2014 separation, the parties did not consult each other on the children’s activities falling under section 7 expenses. Based on their respective incomes, Mr. MacLennan’s proportionate shares for the years 2014 to 2017 were as follows:

• 2014 – 67%; • 2015 – 66.5%; • 2016 – 66%; and • 2017 – 66%.

[66] For Ms. Nobrega, her proportionate shares were as follows:

• 2014 – 33%; • 2015 – 33.5%; • 2016 – 34%; and • 2017 – 34%.

[67] The court is obligated to take into account any subsidies, benefits, income tax deductions or credits relating to the section 7 expenses in determining the quantum of each party’s contribution to an expense: section 7(3) of the Guidelines. Ms. Nobrega has claimed section 7 expenses for the period 2014 to 2017 as described in Exhibit 2, Tabs 45-7 and 59. She has made allowances for tax subsidies she would receive for these expenses. Mr. MacLennan’s proportionate share of these expenses is $3,548.74.

[68] It is not disputed that Ms. Nobrega’s proportionate share of the children’s dental expenses, which were paid for by Mr. MacLennan, is $992.32. This amount is set off against his proportionate share of section 7 expenses paid by Ms. Nobrega. As a result, Mr. MacLennan owes Ms. Nobrega $2,556.42 in section 7 arrears.

[69] Mr. MacLennan has submitted a total of $12,624.18 in section 7 expenses: see Exhibit 3 at Tabs 20-26. These expenses cover sports activities of the children over the period 2014 to 2017. Mr. MacLennan provided no evidence of whether he would receive any subsidies, benefits, income tax deductions or credits. It is his onus to provide this information. I cannot accurately assess Ms. Nobrega’s proportionate share because Mr. MacLennan may receive subsidies, benefits, income tax deductions or credits that would further reduce the amount claimed. To account for this, I will reduce Ms. Nobrega’s proportionate share to 10% and apply the amount ($1,262.42) to Mr. MacLennan’s section 7 arrears ($2,556.4). Thus, Mr. MacLennan owes $1,294.00 in section 7 arrears.

Summary of Orders

[70] Ms. Nobrega is a joint owner of the matrimonial home by way of resulting trust and has a 50% interest in the post-separation growth in the value of the matrimonial home.

[71] Mr. MacLennan’s 2017, income is imputed to be $111,551.72 and he shall pay Guideline child support of $1,543.00 until July 1, 2018, when his monthly Guideline child support shall be calculated in accordance with his disclosed income.

[72] Mr. MacLennan shall pay child support arrears of $808.00. The parties shall adjust this figure to reflect actual child support paid by Mr. MacLennan in 2017, 2018, and 2019 as of the date of these reasons. Should the parties be unable to agree, they shall apply to the court for direction.

[73] Mr. MacLennan shall pay ongoing spousal support of $1.00 per month retroactive to September 14, 2014. This spousal order is of indefinite duration. Any reduction or termination of child support shall constitute a material change in circumstance for a review and variation of this spousal support order. Should Mr. MacLennan’s income exceed $100,000.00, this shall constitute a material change in circumstance for a review and variation of this spousal support order. This spousal support order shall be reviewed in 4 years without the need for a material change in circumstances.

[74] Mr. MacLennan shall place Ms. Nobrega as a recipient on his employment benefits plan. This arrangement shall be reviewed at the time the spousal support amount comes up for review.

[75] Each party shall take out their own life insurance.

[76] Mr. MacLennan shall pay $1,294.00 in section 7 arrears and $53 in spousal support arrears.

[77] Mr. MacLennan shall pay Ms. Nobrega an equalization payment of $92,235.06. This payment is subject to an adjustment (reduction) of $8,727.69. Therefore the payment shall be $83,507.37.

[78] Mr. MacLennan shall pay off and close out the joint value visa, the joint gold visa and any other joint debts (with the exception of the mortgage). He shall close out these accounts within 30 days of this Order. If a sale of the matrimonial home is to occur, these accounts shall be closed within 5 days of the closing on the Matrimonial home from Mr. MacLennan’s share of the net sale proceeds.

[79] Mr. MacLennan shall be entitled to purchase the Ms. Nobrega’s 50% interest in the Matrimonial Home located at 283 Beechgrove Side Road in Caledon, Ontario on the following conditions:

a. He shall have 5 days from the date of this Order to elect to purchase to Ms. Nobrega’s interest in the Matrimonial Home.

b. The value of the Matrimonial Home for the buyout is set at $788,000.00. This figure is in accordance with the most recent appraisal for the matrimonial home (as filed at the trial).

c. Mr. MacLennan shall pay Ms. Nobrega the equalization payment owing as set out in this Order at the same time as he purchases her interest in the matrimonial home. Should he fail to purchase her interest in the matrimonial home he shall pay the equalisation payment in 30 days.

d. Mr. MacLennan shall pay all arrears of support at the same time as the buyout transfer occurs.

e. Mr. MacLennan shall take the necessary steps to remove Ms. Nobrega from any and all encumbrances registered on title to the matrimonial home located at 283 Beechgrove Side Road, Caledon, Ontario, including but not limited to the Mortgage with Scotiabank, and he shall be responsible for any costs resulting from same. Mr. MacLennan shall also ensure that Ms. Nobrega’s name is removed from any and all utilities, bills or other aspect of the Matrimonial Home. Mr. MacLennan shall be responsible for any and all liabilities related to the Matrimonial Home going forward.

f. The above payments shall be paid to Ms. Nobrega’s lawyers in Trust, within 30 days of this Order.

[80] If Mr. MacLennan does not choose to purchase Ms. Nobrega’s interest in the Matrimonial Home, or if the buyout of the Matrimonial home is not complete within 30 days of this Order, then the property shall be listed for sale within 30 days of this Order. The net sale proceeds once the home is sold shall be divided 50/50 between the parties, with the exception that Mr. MacLennan shall pay to Ms. Nobrega an equalization payment of $83,507.37 from his 50% share of the net sale proceeds and he shall further pay all child, spousal and section 7 expense arrears to Ms. Nobrega as set out in this Order from his 50% share of the net sale proceeds. This amount shall be paid to Ms. Nobrega’s lawyers in Trust from the Real Estate Lawyer acting on the sale.

[81] Should the parties be unable to agree on costs a 2 page cost outline shall be submitted to the court within 30 days.

Barnes J.

Released: February 1, 2019

APPENDIX A

SUMMARY OF CHILD SUPPORT ARREARS

Year	Respondent’s income	Applicant’s income	# of kids with AM	# of kids shared	Set-Off amount of Table Support	# of Months	Amount owed by Respondent	Amount paid	Balance owing to AM
2014	$105,753.00	$57,801	1	3	$1,177	4	$4,119	$0.00	$4,119.00
2015	$102,261.00	$57,525	1	3	$1,117	12	$13,404	$13,324	$80.00
2016	$111,552.00	$62,953	1	3	$1,186	12	$14,232	$16,896	($2,664.00)
2017	$111,552.00	$62,953	1	3	$1,186	6	$7,116	$8,448	($1,332.00)
2017 (July 1 – Nov, 30)	$111,552.00	$62,953	2	2	$1,475	5	$7,375	$7,040	$335.00
2017 (Dec)	$111,552.00	$62,953	2	2	$1,543	1	$1,543	$1,408	$135.00
2018	$111,552.00	$62,953	2	2	$1,543	1	$1,543	$1,408	$135.00
Balance owing to Ms. Nobrega as of January 31, 2018									$808.00

APPENDIX B

Equalization (Nobrega v. MacLennan; FS-15-83145-00)

APPLICANT (Ana Cristina Nobrega)	RESPONDENT (Michael Jerome MacLennan)
① Value of all assets on valuation date
• $335,750 (matrimonial home) • $2,500 (household goods) • $300 (engagement ring) • $1,250 (trailer) • $1,770.98 (chequing account) • $24,399.81 (OMERS) • $146,855.40 (OMERS) TOTAL: $512,826.19	• $335,750 (matrimonial home) • $2,500 (household goods) • $2,000 (vehicle) • $4,000 (vehicle) • $1,250 (trailer) • $2,500 (motorcycle) • $2,000 (bike) • $800 (stereo) • $1,400 (guitar) • $1,770.98 (chequing account) • $20,005.38 (RRSP) • $300,482.59 (Ontario Pension Plan) TOTAL: $674,458.95
② Value of all debts/liabilities on valuation date
• $109,348.71 (mortgage) • $2,286.22 (visa) • $29,371.48 (pension contingent liability) • $4,879.96 (RRSP contingent liability) • $1,900 (loan) TOTAL: $147,786.37	• $109,348.71 (mortgage) • $2,286.22 (visa) • $11,414.08 (RRSP contingent liability) • $1,900 (loan) TOTAL: $124,949.01
③ Net value on marriage date (excluding matrimonial home)
• $64,950 (investment property) TOTAL: $64,950	• $64,950 (investment property) TOTAL: $64,950
④ Value of 4(2) exclusions on valuation date
TOTAL: $0	TOTAL: $0
Net Family Property = ①-②-③-④
= $512,826.19 - $147,786.37 - $64,950 - $0 NFP: $300,089.82	= $674,458.95 - $124,949.01 - $64,950 - $0 NFP: $484,559.94
Equalization payment
= ($484,559.94 - $300,089.82) ÷ 2 = $92,235.06 RESPONDENT TO PAY EQUALIZATION PAYMENT OF $92,235.06 TO APPLICANT