NEWMARKET COURT FILE NO.: FC-17-55201-00 DATE: 202003 16
Ontario Superior Court of Justice - Family Court
BETWEEN: Alyssa Beth Diamond, Applicant – and – Wayne Mark Berman, Respondent
Counsel: Mark Greenstein, Ashley Krol, and Katie Hunter, Counsel for the Applicant David Sherr, Counsel for the Respondent
HEARD: November 27, 28, 29, December 2, 6 2019 and January 6, 7, 8, 9, 10 and February 4, 2020
MCGEE J.:
[1] Mr. Berman is the uncomfortable protagonist of this dispute. His grief reaction to the end of the parties’ 27-year marriage amplified to the extreme his pre-existing mental health issues which had, over time, extinguished Ms. Diamond’s ability to remain in the marriage.
[2] For Mr. Berman’s sake, it needs to be said that there was no fault to be associated with the end of this marriage. There was no hatred or dishonesty. Just a leaving spouse who was diminished and exhausted to a point of no return and a remaining spouse, faced with the loss of his world, who doubled down to maintain control at home and in the courtroom.
[3] But for the narrowing of the equalization claim, and a mid-trial settlement of post-separation adjustments, everything in this high conflict family law trial was at issue: income for support purposes, Ms. Diamond’s entitlement to spousal support, whether she should be imputed with more income than she ever earned during the marriage, the division of vehicles, the manner of dividing a federal pension at source, whether a spousal support variation on retirement can be predetermined and pre-judgement interest.
[4] For the reasons set out below, I find that Ms. Diamond does have an entitlement to spousal support; I decline to impute income to her, and I then set the terms for spousal support, decide the payment of equalization and interest, and the amount to be transferred in the division of Mr. Berman’s pension.
Background
[5] In his own words, Mr. Berman and Ms. Diamond were high school sweethearts, introduced by a cousin. They married on June 15, 1989 and did everything right. Before starting a family, they finished their respective educations and built a strong financial base. They pursued complementary careers that maximized their tax effective joint income and their availability to parent their two daughters.
[6] Mr. Berman left a traditional accounting firm in 1991 for a more balanced work life at Revenue Canada, now the Canada Revenue Agency. He is a manager of tax auditors.
[7] Ms. Diamond is a dental hygienist. Prior to the arrival of their daughters in June of 1995 and January of 1997 she had generally worked full weeks. Since 1997 she has worked three days a week, lengthening one of those days post-separation.
[8] Mr. Berman describes being in shock when he received a lawyer’s letter on January 27, 2017 asking him kindly and appropriately to retain counsel so that the issues arising from their separation could be sorted. He did not initially respond.
[9] By the end of the following month he was relentlessly auditing every dollar of his former spouse’s spending down to her purchase of fruit for his niece’s birthday party. By trial, his monthly accounts had grown to approximately 324 pages of “working papers” which he sought to tender as evidence. Every expense is detailed in his audit, including Ms. Diamond’s purchase of a bed when she was pressed to move from the master bedroom into a spare bedroom.
[10] He later snuck into that room and took a Statement of Account from her lawyers to use in the litigation. He took the keys for the better vehicle. He monitored her movements and without her knowledge, obtained a printout from the Jewish Community Centre of every time she went to the gym from July 2012 to November 2018.
[11] He resolved from the start that his wife of almost 28 years held no entitlement to spousal support. He pressed a budget for her showing how she already has enough money. He collected three thick volumes of job postings that, in his mind, proved that she could work fulltime and/or for better money. He would leave job postings around the house.
[12] Mr. Berman conscripted their youngest daughter: who had inherited his propensity for anxiety, to reject her mother. He involved their daughter in the litigation and used her to buffer his own overwhelming feelings of loss.
[13] It was terribly destructive. And it would have escalated into an all-too-familiar high conflict parenting dispute but for Ms. Diamond’s careful fortitude. She stayed calm and tried to avoid escalations. She relied on her lawyers to move the matter through the courts. She refused to move from the home or agree to a nesting arrangement, putting her own health at risk to remain close so that she could mitigate any damage to their daughters caused by their father’s behaviour. Protecting her adult daughters has been Ms. Diamond’s focus throughout this litigation. She is devoted to them.
[14] Meanwhile, Mr. Berman played every card available through his counsels and later, as a self-represented litigant, to hold on to the past, and primarily, the house.
[15] He refused to sell the house and ignored multiple invitations to purchase Ms. Diamond’s interest, including a court structured timetable. When the home was finally sold on the open market, Ms. Diamond had to obtain a court Order to dispense with his consent to sale. He appeared in court the following day in an unsuccessful attempt to force her to sell the home to him - after the third-party purchaser had already entered into binding terms.
[16] As they prepared the home for the January 10, 2019 closing, he forbade Ms. Diamond to keep her family heirlooms unless she paid him for them. When she refused to pay him for her grandmother’s dining room set and bedroom set, he let her take the items - but without any of the drawers. He held them back until she paid his price. [1]
[17] The fog of war descended. Straightforward issues became complicated. Motion followed motion. Conferences could not change the dynamics and the trial was judicially organized and scheduled in large measure, to accommodate Mr. Berman’s self-representation; but it didn’t help. His Opening Statement was a bombast that invoked his rights as a citizen, his profound disbelief at even having to go to trial, his victimization, his anger and his tearful regret. I have never seen anything like it.
[18] The early days of the trial were alarming for all concerned. As Mr. Berman spiralled out of control Ms. Diamond’s counsel held steady with a litigation team that saw three lawyers at counsel table. Counsel worked admirably to assist Mr. Berman as a self-represented person, and to assist the Court in understanding Mr. Berman’s claims. Ultimately it was to no avail.
[19] Mr. Berman had a breakdown near the end of the applicant’s case. He removed himself from the courthouse to seek medical help. His sister attended the following week in his place and on his behalf, and was granted an adjournment to retain counsel. Counsel then obtained a further adjournment to prepare the case.
[20] With the retainer of counsel, calm descended.
[21] Mr. Berman’s claims were organized and succinctly advanced; a remarkable feat of counsel given the shortness of time. As chaos left the room, the parties’ claims could be objectively viewed and assessed on their merits. The evidence was vetted for relevance and proportionality. The issues were narrowed.
[22] I learned through the course of this trial that both parties have counselling supports. I have watched each develop insights that will help them process the emotional effects of this terrible litigation in the years to come. It has unduly destroyed the finances and the emotional well-being of a hard-working middle-class family. I can observe that there is still much to learn from the aftermath of this separation, which at its core was a long-standing mental health breakdown.
[23] A Family Court Trial Judge can only decide the legal issues arising from a personal or a relationship breakdown. At the same time, it bears repeating that no family law issue stands apart from the personalities of the litigants. I offer each of Mr. Berman and Ms. Diamond my sincere hope for a calmer future as they move forward and grapple with the challenges to come.
The Legal Issues
Mr. Berman’s Income
[24] Mr. Berman is a 56-year-old manager of tax auditors with Canada Revenue Agency. His lengthy career has placed him at the top of his income scale, which was recently adjusted as the result of collective bargaining. It is agreed that his income is as follows:
2016: $103,977 2017: $106, 534 2018: $124,514 being 113,721 annual income + $10,793 in retroactive pay 2019: $116,924 2020: $119,502 2021: $121,295 2022: $123,115
[25] There is really only one issue with Mr. Berman’s income: whether the retroactive pay that was determined within a March 29, 2018 Collective Agreement should be a date of separation asset or included in his income for support purposes in the year in which it was received. There is a similar issue with Ms. Diamond’s income. She received vacation pay after the date of separation, a portion of which had been earlier accrued. Counsels split on the treatment of each, only asking that I treat both the same, either as date of separation assets, or income for support purposes in the year received.
[26] The net of tax value of an accrued employment benefit is generally treated as a date of separation asset because it is an account receivable that is in the possession of the spouse. The most common examples of benefits which are date of separation assets are accrued vacation pay and sick leave benefits.
[27] But benefits lacking certainty of value or certainty of receipt on the date of separation are an exception. For example, an entitlement to a bonus is not a date of separation asset unless the amount of the bonus was previously declared and owing, see Sheppard v. Sheppard, 2005 CarswellOnt 3996 (ONSC). In the same manner, whether retroactive pay is an asset on the date of separation turns on when the entitlement to the pay had crystallized.
[28] Mr. Berman’s March 29, 2018 Collective Agreement shows an accrual of retroactive pay from December 2014 to December 2017, with monies being paid in the 2018 tax year. He calculates the portion of the $10,793 accrued to their January 26, 2017 date of separation to be $4,539.50; but the calculation is based on compounding, intertwined increases:
(a) $105,567 as of December 22, 2013; (b) Plus 1.25% as of December 22, 2014 to $106,887 per year; (c) Plus 1.25% as of December 22, 2015 to $108,224 per year; (d) Plus 2.5% and 1.25% as of December 22, 2016 to $112,317 per year; and (e) Plus 1.25% as of December 22, 2017 to $113,721 per year.
[29] Given the date of the Collective Agreement, I am not satisfied that the retroactive pay increase was an accounts receivable to Mr. Berman on the date of separation. This leaves its characterization as income in the year received. I find that it is not a date of separation asset.
[30] Moreover, income in the year of receipt accords with its treatment by the CRA. In 2018 Mr. Berman was not required to refile the prior four years of Income Tax Returns. All the retroactive monies received were treated as taxable income in 2018.
Ms. Diamond’s Income
[31] Ms. Diamond is a 53-year-old dental hygienist. She was the secondary income earner in the home, and as set out below, has not had the opportunity to upgrade her skills during her working years. Since the birth of their second child, she has worked three days a week subject only to minor variances, such as covering for a co-worker’s leave in 2016.
2016: $49,252.67 2017: $39,396 2018: $43,300 [2] (of which $6,000 was vacation pay) 2019: $40,000 2020: $40,000
Mr. Berman’s Claim to Impute Income to Ms. Diamond
[32] Mr. Berman seeks a finding that Ms. Diamond be imputed with a minimum income of $90,000 per year because she is intentionally underemployed, the basis for such an argument found in section 19(1)(a) of the Federal Child Support Guidelines:
Imputing income
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[33] The principles that apply in determining whether to impute income to a payor spouse are the same in both child support and spousal support cases, see Favero v. Favero, 2013 ONSC 4216; and can equally apply to recipient spouses.
[34] A parent is intentionally underemployed within the meaning of this section if she earns less than she is capable of earning having regard to all of the circumstances. In determining whether to impute income on the basis of under or unemployment, the factors that a court must consider include the age, education, experience, skills and health of the party, the party's past earning history and the amount of income that the party could reasonably earn if she worked to capacity.
[35] The onus is on the party seeking to impute income. In this case, Mr. Berman must establish an evidentiary basis upon which a finding can be made. If he is successful, then the onus shifts to Ms. Diamond to establish a valid reason for her underemployment. Section 19(1) specifically refers to valid reasons for under or unemployment as child care requirements, reasonable health needs or reasonable educational needs.
[36] This approach is well settled in law, and an excellent summary can be found in Justice Chappel’s decision of Thompson v. Thompson, 2013 ONSC 5500.
[37] Mr. Berman argues that his former wife worked fulltime before the birth of their first child in 1995 and that she ought to have returned to fulltime work when her child care responsibilities lessened, particularly as he was an equally contributing parent throughout.
[38] At the same time, he describes their mutual efforts as collective choices for the betterment of the family which worked. He testified at trial with considerable pride that they had a comfortable lifestyle, sufficient savings and a well-managed life. He acknowledges that during the marriage he did not oppose her part-time employment and in fact, discouraged her from expanding her career opportunities.
[39] Mr. Berman’s utter mastery of the family finances was on full display throughout the trial.
[40] In cross examination he carefully related his conclusions over the years: that there would be no benefit to the family were Ms. Diamond to improve her credentials or work additional part-time hours. He deposed at paragraph 21 of his affidavit that he discouraged his spouse from working longer hours and additional days as a dental hygienist for several years prior to separation, because if their joint income were to exceed $160,000 per annum, they would lose eligible tax credits. He set out his calculations showing that this higher tax bracket would have resulted in little additional income. Moreover, he observed that the additional income would have disqualified their oldest daughter for OSAP. He acknowledged that he had told Ms. Diamond not to return to school to upgrade her skills as a hygienist - even though she had been accepted to a program - because he had assessed no future benefit to the family that would justify the tuition costs.
[41] Ms. Diamond points to this missed opportunity to return to school as the turning point in her career. Today she lacks the skills and education to work in a digital dental office, which is the current standard of practise. At 53 years of age she considers herself most fortunate to have her present position in a manual entry (paper charts) office, in which she earns a high hourly rate, well in excess of the average hourly rate for dental hygienists. Fulltime employment is not available at her office.
[42] Despite this reality, Mr. Berman asserts that everything has now changed. He does not accept that Ms. Diamond is at the top of her ability to be self-sufficient. He asks the court to impute full time income to Ms. Diamond on the same terms as her part time position.
[43] He is not willing to support his former spouse “in a leisurely lifestyle while working just 2.5 days per week.” Whenever he got caught up in this view (before he had counsel) one could visibly see him turn on his former spouse. He became dismissive and petty. In direct contradiction to his later testimony (when he had counsel) he blamed her for never taking on more hours at work because she was busy getting her hair and nails done.
[44] I will digress for a moment to note that it was a break down at work which triggered the end of this marriage. The stress of the marriage which Ms. Diamond later came to understand as emotional, verbal and financial abuse had so diminished her abilities in the workplace that her employer feared losing her. She was unable to focus, fragile and hesitant. Her employer arranged for her to see a psychologist.
[45] She had an initial engagement with that psychologist but could not continue as Mr. Berman refused to submit the expense through his benefits. She then sought out and engaged a sliding scale psychologist through Jewish Child and Family Services. Thanks to invaluable counselling and a supportive employer, she has been able to continue at her work, generally missing time only to attend court.
[46] Although fulltime work is not available to her, since separation she has asked for additional hours at the practise and to work on the busier days, which requests have been granted. She now has a reliable 20 hours per week and relates that there is no comparable or supplemental part-time position at another dental office with the same rate of pay, complementary hours or ability to work in paper. She earns $46 per hour, working three days a week: Monday 8:30 a.m. to 6:00 p.m., Tuesday 8:30 a.m. to 4:00 p.m. and Friday 8:30 a.m. to 3:00 p.m. Her hours allow her to maintain her fitness so that she can avoid many of the physical challenges facing dental hygienists such as repetitive strain injury, back pain and carpal tunnel syndrome.
[47] Ms. Diamond’s understanding of her profession corresponds with the expert evidence of Ms. Zagrodnik who completed a vocation assessment on Ms. Diamond in October 2018.
[48] Ms. Zagrodnik is a Registered Rehabilitation Professional with the Vocational Rehabilitation Association of Canada, and she holds a Canadian Certified Vocational Evaluator designation. Her qualifications as an expert were not opposed and she acknowledged her expert’s duty to the Court consistent with Rule 20.1 of the Family Law Rules. She completed a careful and thorough review of Ms. Diamond’s employment and educational history in order to place her within a defined occupational group within the National Occupational Classification Career Handbook. [3] That group has a stated low of $25 per hour in Ontario with a high of $45 per hour.
[49] Ms. Zagrodnik testified that approximately 60% of dental hygienists work less than fulltime, with 72% working for a single employer, and 48% working less than 30 hours per week. The median for all hygienists irrespective of age, was 30 hours a week. She related the low wage for dental hygienists to be $21 per hour, the median wage for dental hygienists $36 per hour and the high wage to be $42 per hour; with a median income at $58,281 – assuming digital skills.
[50] Ms. Zagrodnik agreed that Ms. Diamond’s limited computer and other technology skills would serve as a significant barrier to her obtaining other jobs, because the majority of dental offices require knowledge of electronic systems and a capacity to use them. She described how younger, technologically savvy hygienists would be the preferred hires particularly in “hub” or more business centred practises in which there is a formula to maximum profit. New hires are consistently in the $30 to $35 an hour range, compared to Ms. Diamond’s $46 per hour.
[51] Moreover, Ms. Zagrodnik stated that at 20 hours and with her present hourly rate, Ms. Diamond is working the maximum number of hours that she can given her age and the inherent risk of injuries in the dental hygiene profession. Her report sets out the Canada wide statistic that 56% of dental hygienists (weighted heavily but not exclusively by women over 50) complain of symptoms of carpal tunnel syndrome, and chronic back and shoulder pain. She related the results of the 2017 Job Market & Employment Survey conducted by the Canadian Dental Hygienists Association which found that the most frequently reported work-related medical issue was back and neck injuries, but that hygienists are also exposed to infections, exposure incidents, hand/wrist injuries and other occupational injuries.
[52] Her research confirms Ms. Diamond’s anecdotal information that no hygienists in her age group work fulltime because of the unavailability of work and the risk of injury; the latter making fulltime work – if it can be found - unsustainable.
[53] Ms. Zagrodnik’s opinion was that Ms. Diamond is maintaining a reasonable schedule at the present time given her age, skill set and the inherent risk of injury. I find her opinion to be persuasive as it is well supported by the statistical evidence set out in her report.
[54] Counsels have provided me with a helpful array of caselaw on this issue of imputation, which I am advised is the co-focus of the litigation; the second being Ms. Diamond’s entitlement to spousal support. In my review of the law, I see that it is unusual for a court to make a finding of under or unemployment in cases in which the spouse’s employment has not substantially changed from the pattern during the relationship. The caselaw generally focuses on spouses who voluntarily leave their employment, accept less pay or who forego realistic opportunities to improve their ability to be self-sufficient.
[55] Mr. Berman asks that I focus on the latter, and that I simply make a calculation that projects Ms. Diamond’s current hourly rate to a fulltime position.
[56] I find that there is no basis to do so. Fulltime employment is not available to Ms. Diamond at her present position, is not attainable at her present wage, and not likely sustainable for anyone of her age. Ms. Zagrodnik’s evidence was clear that statistically, fulltime work is highly probable to result in an earlier departure from the workforce.
[57] Neither do I find any basis on which to make a finding that Ms. Diamond is underemployed. For the past 25 years she has worked part-time in her field. By increasing her hours and working on busier days, she has already taken the steps available to her to maximize her ability to be self-sufficient, given her age, education, experience, skills and health.
[58] I decline to impute income to Ms. Diamond. Her income for support purposes is as set out in paragraph 31 above.
Child Support
[59] The parties’ youngest daughter has lived with her father at her paternal grandparents’ residence since January 2019 when the sale of the family home closed. The oldest daughter is living with her mother at the maternal grandparents’ residence. She is working fulltime and is independent.
[60] Ms. Diamond paid voluntary child support from January to August 2019 for the youngest daughter in the amount of $390 per month which appears to be based on a 2018 income of $43,000. Having declined to impute income to Ms. Diamond, and her actual 2019 income being $40,000, I dismiss any claim for a retrospective recalculation of 2019 child support.
[61] The youngest daughter has been working since August 2019 and may return to her studies this fall (September 2020.) It is agreed that Ms. Diamond will resume table child support upon her return to school.
[62] I am advised that no financial contributions by either parent to the cost of the youngest daughter’s education will be necessary, because the remaining education savings are in excess of what is required. The parties have agreed to distribute any unused education savings in equal shares upon the completion of her education.
Spousal Support
Entitlement to Spousal Support
[63] This is an application under the Divorce Act, 1985, c. 3. Section 15 of the Act permits the court to make Orders for corollary relief, including at section 15.2, Orders for spousal support. When making an Order, the court must take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited and the functions performed by each spouse during cohabitation.
[64] The objectives of an Order are to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[65] In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship, see Rioux v. Rioux, 2009 ONCA 569.
[66] Mr. Berman objects to his former spouse having any entitlement to spousal support, on any basis: compensatory, need (non-compensatory) or contractual.
[67] He is proud of his management of the household finances during the marriage that allowed the family to pay off their mortgage and acquire educational and retirement savings. He is convinced that on his numbers, even if Ms. Diamond is not imputed with income of $90,000 a year, she can maintain her past lifestyle on her actual income of $40,000.
[68] To support his assertions, he prepared a budget for his former spouse that would permit her to continue saving, while maintaining her previous lifestyle; provided she continues to reside with her elderly parents, participate in no activities and incur no personal or additional transportation costs. He has offered to revise her budget and make corrections to her expenses to bring them into line with his own conclusions. He is incredulous, and not a small bit irritated that Ms. Diamond’s counsel has refused his offers of assistance.
[69] Mr. Berman worries that Ms. Diamond is not seeking spousal support because she actually needs it, but because she now plans to pursue a more materialistic lifestyle. He points to her post-separation purchases of a new bed and later, a new bike. He stated during his cross examination that he “hopes she stays on living with her mother after the trial because it would save us all money.” He has no regard for his post separation income being three times higher than that of his former spouse.
[70] I would not ordinarily devote significant reasons to the question of entitlement in a 27-and-a-half-year marriage in which the parties’ finances have been so inextricably intertwined. But this is a core issue for Mr. Berman and on instruction, counsels have provided extensive caselaw to me and devoted much of their submissions to the question of entitlement.
[71] I will begin with the Supreme Court of Canada decision in Moge v. Moge in which the Court summarized the goals of the support provisions of the Divorce Act as ensuring an equitable sharing of the economic consequences for both parties on marriage breakdown.
[72] In Bracklow v. Bracklow the Supreme Court of Canada furthered its analysis of entitlement, and created the now familiar three bases for support: compensatory, non-compensatory and contractual.
[73] Bracklow provides that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union (para. 1) while acknowledging that marriage by itself does not create an obligation to pay spousal support. The obligation for spousal support must “flow from the nature of the relationship” (para. 44) and the relative positions of the parties on marriage breakdown. Need alone may be enough to establish entitlement to support (para. 43) and a spouse’s lack of self-sufficiency need not be related to compensatory disadvantage.
[74] Since Bracklow, the caselaw has harmonized this basis for spousal support with the principles of economic merger over time and mutual obligation as earlier set out in Moge. As a result, compensatory support is no longer limited to a stereotypical spouse who has foregone economic opportunities, but instead, is a basis for support between all spouses who over time have developed an interdependency and merger of their economic lives. For example, the “with child” spousal support ranges bake in the concept of compensatory support because the family is operating as an interdependent unit to provide for the needs of their children.
[75] There can be no doubt that Mr. Berman and Ms. Diamond’s lengthy marriage was one of economic merger. They worked collectively, they raised a family, and they set joint goals. Mr. Berman was the primary income earner and meticulously managed their finances to maximize their after-tax income and savings. Ms. Diamond was the secondary income earner and covered off the additional child care, extended family and household needs that neither could do if working fulltime. In the early years they had additional assistance, such as a live-in nanny. As the children became more active, Ms. Diamond was able to take on more of the additional responsibilities. It worked well. They were able to afford private school for a period, to go out for dinner and they enjoyed occasional vacations. Ms. Diamond never objected to Mr. Berman’s self-appointed role as the family’s financial regulator and in fact, from time to time she expressed her appreciation. They were a successful, integrated family unit.
[76] But towards the latter stage of the marriage, that economic merger grew dysfunctional. Ms. Diamond's counsellor chronicled its descent in her evidence on the third day of trial.
[77] Over time, Mr. Berman’s careful financial management became financial control. Financial control slid into belittlement, [4] abuse, hypervigilance and domination. It permeated all aspects of their personal and public lives, not always at the forefront or visible to others, but ever present. Ms. Diamond’s ability to cope deteriorated. She had trouble concentrating, exhausted from always being alert to the next threat.
[78] When she began making progress with the psychologist, Mr. Berman insisted on his own appointment so that he could set the record straight. The counsellor related his charming presentation at the first meeting and a scary, baffling reversal at the next meeting. He demanded that his view of the family prevail and that his wife’s need for independence of thought and feeling be corrected.
[79] As he felt himself losing control, Mr. Berman began questioning their daughters’ affection for their mother, or even their need for her. He scared Ms. Diamond into believing that she could not manage on her own. He was antagonistic towards her social circle. He shamed her to her daughters and to others. He pulled their youngest daughter away from her mother. It was a very dark period.
[80] Mr. Berman was visibly unsettled by the counsellor’s evidence at trial. He was exceedingly anxious that the Court see him in a good light and recognize his unique qualities. Rather than cross examine the counsellor he spoke at length in unfiltered soliloquies. There was simply no room in his presentation for Ms. Diamond to peacefully exist independently of him. She was either a vision of romantic loss or a threat to his very being.
[81] I can accept Mr. Berman’s self-characterization as a devoted father and a “complete and co-equal participant in the children's upbringing and care.” I can and I do accept that he contributed to the household chores both inside and out, that he did the vehicle maintenance and that he was completely committed to family life. I applaud his statements in court that his former spouse was “also a hands-on and caring mother” who was a “great parent,” who also contributed to the home and that “[they] had different skills and different roles; and that [they] complemented one another wonderfully.”
[82] These admirable characterizations stand Mr. Berman in good stead and at the same time, stand in stark contrast to the vicious attacks made on Ms. Diamond’s character and capabilities since separation. Loss and threat were the inescapable twin themes throughout this trial. It is in this context that Mr. Berman resists to the end any entitlement to spousal support despite there being no legal basis whatsoever to deny entitlement. To the contrary, there is a legal imperative to find entitlement: the Bracklow principle that the economic consequences of the end of a marriage should be equitably distributed so that they never fall disproportionately on the shoulders of one spouse.
[83] When I take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time they were married, their interdependent functions and their complementary contributions, I find that Ms. Diamond is entitled to spousal support on both a needs/non-compensatory basis and a strong compensatory basis.
[84] I further find that the objectives of the Divorce Act are best met with an award of spousal support in the high range as provided by the Spousal Support Advisory Guidelines.
Award of Spousal Support
Start date
[85] Mr. Berman asks that I make an Order that there be no spousal support prior to the January 2019 sale of the home. He provides a number of cases supporting the position that support not be payable while the spouses continued to cohabitate in the same home: Brownstein v. Hanson, NTS v. KJB, 2007 BCSC 1895, Henderson-Jorgensen v. Henderson-Jorgenson, 2013 ABQB 213, Hardayal v. Asrula, 2018 ONSC 6948 and Henry v. Boyer, 2018 ONSC 6858.
[86] If granted, it would vacate four months of spousal support per my July 4, 2018 temporary Order that Mr. Berman pay spousal support of $2,400 [5] starting September 1, 2018.
[87] Since separation, Mr. Berman has been obsessively exact about financial matters. No detail has escaped his attention. Line of credit statements, bank statements, and credit statements were put to Ms. Diamond on cross-examination. She acknowledged that she had accrued over $40,000 in personal legal expenses on the parties’ CIBC credit card, and that from that card and the joint bank account, she had been able to maintain herself and some modest expenses. It was also confirmed that Mr. Berman had been depositing and withdrawing his pay from the joint account for a period prior to December 2017, and thereafter, only half of his pay, some of the time.
[88] It had been the practise of the parties to deposit the whole of their pay into the joint account. Ms. Diamond continued to do so after separation, until the January 2019 sale of their home. Mr. Berman began withdrawing his pay when he observed Ms. Diamond’s use of the credit card (which had always been paid off monthly from the joint account) to pay for legal fees.
[89] The effect was to shelter Mr. Berman’s income from the payment of joint household expenses which he considered justified by Ms. Diamond’s unauthorized [6] use of the credit card.
[90] At no time did Mr. Berman consider his approach unhelpful or improper. He actually thought that it was admirable because he never prevented Ms. Diamond from using family monies. Instead, he tracked every expense she made, right down to the dollar. He fully expected that his audit would be the basis for eventually putting the expenses right. He saw no relationship between the post-separation payment of expenses and spousal support because in his view, his spouse had no entitlement.
[91] Having now found entitlement, the decision left to the Court is the start date for spousal support, and the amount to be paid. The start date has a relationship with how the parties managed their finances during the period from after separation until the sale of their home.
[92] For most of this post-separation period the parties continued to deposit their respective incomes to the joint account and to pay their expenses in the same manner as they had prior to separation. This appeared to change when Ms. Diamond realized that they were running a monthly balance on their line of credit – which had never been the case previously. In large measure, this was the reason that she moved for spousal support.
[93] However, Mr. Berman made a compelling case at trial that the balances carrying forward on the line of credit were primarily Ms. Diamond’s legal fees, which have now been adjusted in the consent below.
[94] There is a case to be made for spousal support during the periods in which Mr. Berman was withdrawing his paycheque. The parties’ incomes have a consistent ratio range of 75% (Mr. Berman) and 25% (Ms. Diamond). When he withdrew his pay, that ratio shifted so that Ms. Diamond was paying in excess of her proportionate share for common expenses, which included their daughters’ expenses and the joint use of the home. That disproportion could draw a payment of spousal support.
[95] At the same time, there is an intertwining of finances that despite Mr. Berman’s audit continues to cloud the calculation. Mr. Berman was not consistent in his withdrawal of his earnings. There were many months in which he did not withdraw his paycheque. And it is correct that at all times Ms. Diamond was able to access funds that she needed. None of the household bills went unpaid.
[96] Having reviewed the evidence, the agreement for post-separation adjustments and the cases provided by Mr. Berman’s counsel, I have decided to start spousal support as of January 1, 2019, being the month in which the sale of the house closed, the joint savings were divided, and the joint debts closed. In my view, it is at this point that the parties were clearly financially separated and the need for spousal support crystallized.
[97] There may be some minor inequity in this to Ms. Diamond, but I am satisfied that it is offset by the post-separation adjustment, her post-separation use of the jointly owned vehicle (paragraph 114 below) and the provision that no interest be paid on her 2018 advance of $28,800 (paragraph 144).
Quantum of Spousal Support
[98] Ms. Diamond’s counsels have provided me with Spousal Support Advisory Guideline calculations. In all calculations the high range is limited to a 50/50 split of net disposable income:
(a) The calculation for 2019 using the incomes of $116,924 and $40,000 is “without child support” formula. The resulting range is Low: $2,404, Mid: $2,805 and High: $3,153 with corresponding net disposable income splits of (Berman/Diamond) 55.2/44.8, 52.5/47.5 and 50/50; (b) The calculation for 2020 using the incomes of $119,502 and $40,000 is “without child support” formula. The resulting range is Low: $2,484, Mid: $2,899 and High: $3,260 with corresponding net disposable income splits of (Berman/Diamond) 55.3/44.7, 52.5/47.5 and 50/50; (c) The calculation for 2021 using the incomes of $121,295 and $40,000 is “without child support” formula. The resulting range is Low: $2,540, Mid: $2,964 and High: $3,334 with corresponding net disposable income splits of (Berman/Diamond) 55.4/44.6, 52.5/47.5 and 50/50. The high range is limited by a range split of 50/50; (d) The calculation for 2022 using the incomes of $123,115 and $40,000 is “without child support” formula. The resulting range is Low: $2,597, Mid: $3,030 and High: $3,410 with corresponding net disposable income splits of (Berman/Diamond) 55.4/44.6, 52.6/47.4 and 50/50.
[99] I am prepared to make an Order in the high range because of the complete economic integration between the parties and Ms. Diamond’s strong compensatory claim for spousal support. For over 27 years (and the two years post-separation) the parties pooled all their earnings and took steps to maximize their after-tax income on a year to year basis.
[100] Limiting their taxable income has had long term consequences for Ms. Diamond. While Mr. Berman has been able to maximum his earnings potential as a CRA tax auditor, Ms. Diamond’s earning potential has been limited by the decision that she not return to school, not exceed certain annual earnings and the nature of her secondary income. A high range award of spousal support will equitably distribute the consequences of the end of the marriage, leaving neither party in a position of economic disadvantage relative to the other.
[101] Final Order to issue that:
(1) My July 4, 2018 temporary Order that Mr. Berman pay monthly spousal support of $2,400 from September 1, 2018 is set aside for the months of September, October, November and December. The parties may refile their 2018 Income Tax Return or calculate the after-tax adjustment of monies to be repaid to Mr. Berman from Ms. Diamond; (2) Commencing January 1, 2019, Mr. Berman shall pay monthly, tax deductible spousal support to Ms. Diamond of $3,153. The monthly amount of $2,400 paid by Mr. Berman will be a credit to this Order; (3) Commencing January 1, 2020 Mr. Berman shall pay monthly, tax deductible spousal support to Ms. Diamond of $3,260. The monthly amount of $2,400 paid by Mr. Berman will be a credit to this Order. (4) Commencing January 1, 2021 Mr. Berman shall pay monthly, tax deductible spousal support to Ms. Diamond of $3,334. (5) Commencing January 1, 2022 Mr. Berman shall pay monthly, tax deductible spousal support to Ms. Diamond of $3,410. (6) Support deduction Order to issue.
[102] The amount of spousal support may be varied if there is a material change in circumstances, such as a change in income, the youngest daughter returning to school or Mr. Berman’s retirement.
[103] To minimize future legal fees, should either party bring a Rule 15 Motion to Change the amount of spousal support in this final Order, upon close of pleadings the parties may directly schedule a Case Conference before a Justice (rather than a Dispute Resolution Officer) who may then organize the matter for a focussed trial.
Material Change Related to the Pension
[104] Mr. Berman asks me to set a termination (or variation) date for spousal support by imputing to Ms. Diamond the lifetime income available to her from the division of his pension at source as calculated by Mr. Jocsak, using the weighted average retirement date. I decline to do so. The parties have agreed to divide the pension at source, and my reasons on the amount to be transferred follow at paragraphs 116 to 132.
[105] Counsels provided very helpful and engaging analyses of Boston v. Boston, 2001 SCC 43 and numerous variation applications in which the equalization of a pension, or the division of a pension at source was relevant to a variation of spousal support. For example, in Dishman v. Dishman, 2010 ONSC 5239, Justice Nolan found that the support recipient was entitled to plan on receiving support until the retirement date identified in the pension valuation, linking the retirement date to the expected duration of spousal support. In Rothschild v. Sardelis, 2015 ONSC 5572, Justice MacKinnon undertook a similar analysis with a pension that had been valued using the average weighted age. She was able to calculate the portion of the payor’s income that was not included in equalization of net family properties by comparing it to the actual retirement date.
[106] In all the variation cases tendered, the actual retirement triggered the variation. Here, Mr. Berman’s pension is not in pay and his actual retirement date is presently unknown. A Section 17 Divorce Act Order for variation, rescission or suspension cannot be made unless the court is “able to satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order” see section 17(4.1) [emphasis added].
[107] Because the Divorce Act requires that I be satisfied that the change has already occurred, and that I assess the objectives of a variation Order at the time of the variation, (section 17(7)) I am unable to predetermine a future variation. Neither is the nexus certain between the Family Law Act imputed value of the pension and the date of separation. Only the Justice hearing the variation will be in a position to determine whether there has been a material change in circumstances, and if so, the appropriate Order to be made from that date forward.
Life Insurance
[108] Mr. Berman is not opposed to providing an appropriate amount of life insurance to secure any financial obligations for support. I am unclear whether the amount proposed by Ms. Diamond’s counsel matches the amount available through Mr. Berman’s employment benefits or relates to a private policy. I do not recall that information being in the evidence. It was not proposed that Mr. Berman obtain additional insurance, or what the cost of such coverage would be. I order that Mr. Berman maintain Ms. Diamond as the sole beneficiary of his employment benefits life insurance until such time as he retires. If there is a dispute as to the formal terms for such an Order, or the face value of the insurance, it may be addressed in the submissions for costs.
Equalization
[109] There is only one issue to decide in the calculation of the equalization payment because I have earlier decided that Ms. Diamond’s vacation pay and Mr. Berman’s retroactive pay will be treated as income in the year received. That issue is the ownership and value of their vehicles on the date of separation: a 2013 Subaru and 2007 Honda Civic. It is agreed that the Subaru has a date of separation value of $16,500 and the Civic was worth $5,600. The Subaru is owned jointly and the Civic is owned by Mr. Berman.
[110] The vehicles were used interchangeably during the marriage with Ms. Diamond primarily driving the better vehicle: the Subaru, because she more frequently drove the children to their activities. After separation, Mr. Berman took the keys to the Subaru and left her with the car registered in his name.
[111] Efforts to resolve ownership of the vehicles over the past three years have failed. Mr. Berman has not been willing to transfer ownership of the Civic without a payment of “occupation rent” for her use of his vehicle, or as trial approached, a lesser value than at date of separation value because of its subsequent decrease in value. Neither has he been willing to purchase Ms. Diamond’s part ownership of the Subaru or accept a transfer of ownership to his name alone.
[112] In October 2019 Ms. Diamond left the Civic in his (parent’s) driveway and purchased a pre-owned vehicle in her own name, leaving Mr. Berman with both vehicles.
[113] I order that Ms. Diamond transfer her part ownership of the Subaru to Mr. Berman at no cost. I make no Order for the value of her use of the Civic, nor Mr. Berman’s use of her part ownership of the Subaru, nor an Order compensating Mr. Berman for any decline in the value of either vehicle since the date of separation.
[114] If the value of the vehicles’ post separation use is unequal, I find that it falls into the offsets of income and expenses incurred from the date of separation to the sale of the home. There is no jurisdiction to use a current date value for either vehicle and I place the whole of the Subaru date of separation value in Mr. Berman’s possession as he appropriated its beneficial ownership. I find the date of separation values to be $16,500 for the Subaru and $5,600 for the Civic in accordance with Ms. Diamond’s evidence, which is accepted by Mr. Berman in his evidence-in-chief affidavit.
[115] Having the benefit of an otherwise agreed Net Family Property Statement (from which I have deducted the vacation pay and retroactive pay amounts) I calculate the equalization payment owing from Ms. Diamond to Mr. Berman to be $73,351.77. Order to issue accordingly.
Division of Pension at Source
[116] Pensions are assets that are included in a spouse’s net family property on the date of separation. Until the enactment of the Family Law Statute Amendment Act, 2009, there was no regulatory scheme to allow for the division at source of an Ontario pension. Although federal pensions had been divisible for many years under various federal statutes, until 2009 no similar mechanism existed for pensions administered by the Ontario Pension Benefits Act. [7] The legislation now allows for an immediate pay-out from a spouse’s provincial pension to a pension-like vehicle [8] held by the pension holder’s former spouse.
[117] Mr. Berman’s counsel made an early proposal that s. 10.1(1) of the Family Law Act does not apply to this case as it is in reference to Ontario-based pensions only; but the argument overlooks the nexus of entitlement between the provincial and the federal legislation. There is no stand-alone entitlement to share in a spouse’s federal pension, but for the right to an equalization payment pursuant to section 5 of the Family Law Act, which may be satisfied by the transfer of property to a spouse pursuant to section 9 (1)(d)(i) FLA. In other words, the transfer of federal pension moneys is in satisfaction of the provincial right to an equalization payment - as it relates to the imputed value of his pension on the date of separation.
[118] Section 10.1 into the Family Law Act references to s. 67.2 of Regulation 287/11 which prescribes the formula to be used when calculating the value of the pension for purposes of equalization, referred to as the “imputed value,” specifically:
Imputed value for family law purposes
10.1 (1) The imputed value, for family law purposes, of a spouse's interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 of that Act. 2009, c. 11, s. 26.
Same
(2) The imputed value, for family law purposes, of a spouse's interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 of the Pension Benefits Act with necessary modifications. 2009, c. 11, s. 26.
[119] The value is “imputed” because it is not the actual retirement date value (being the retirement date intended during the marriage or now anticipated), but by a prescribed formula that weighs the value of the pension as of three defined dates: the termination date, the early unreduced retirement date, and the normal retirement date. The actual retirement date of the pension holder is irrelevant to the Family Law Act value of the pension.
[120] Mr. Berman is a Group 1 member [9] of a federal pension governed by the Public Service Superannuation Act. The parties have agreed to divide his pension at source, but they disagree on the amount to be transferred and (as above) the consequences to future spousal support when Mr. Berman retires and/or when Ms. Diamond is in receipt of payments. Each retained his and her own expert to assist the Court in determining the imputed value of Mr. Berman’s federal pension.
[121] The transfer is subject to certain restrictions:
Restrictions re certain pension plans
(7) If the Pension Benefits Act applies to the pension plan, the restrictions under sections 67.3 and 67.4 of that Act apply with respect to the division of the spouse's interest in the plan by an order under section 9 or 10. 2009, c. 11, s. 26.
[122] The restriction relevant to this proceeding is the maximum percentage which prevents the pension holder from transferring more than 50% of the imputed value of the pension. I received helpful evidence on how the one half of the imputed value on date of separation may be less than the amount available for transfer as of the transfer date. The parties have now agreed that if this occurs, Mr. Berman will pay the balance owing to Ms. Diamond from his share of the net sale proceeds of the matrimonial home subject to a notional disposition cost of 21%.
[123] Ordinarily I would not be asked to decide the imputed value to be transferred from Mr. Berman’s pension to Ms. Diamond’s pension-like vehicle. The imputed value of a pension, and the costs of case-specific valuations were intended to be removed from litigation by the FLSAA. Pension plan administrators neutrally prepare a statement of imputed value using the prescribed formula.
[124] The obstacle in this case, is that the third value to be weighed: the normal retirement date is not defined in the Public Service Superannuation Act. The parties ask me to decide this issue. My jurisdiction to do so comes from section 10.1(2) of the Family Law Act which allows a court to determine the imputed value “where reasonably possible, in accordance with section 67.2 of the Pension Benefits Act with necessary modifications.” [10]
[125] Both parties called experts to testify. Neither expert took any significant issue with the other’s valuation of the pension, or the nature or operation of the pension but for the differences resulting from the determination of the “normal retirement date.” Ms. Diamond’s expert, Mr. Wolgelerenter used a “normal retirement date” of age 60 resulting in a value of $1,033,324 blended with a “termination value” of $1,033,324 and an “early unreduced retirement age value” of $1,128,783 for an imputed value of $1,088,126. Mr. Berman’s expert, Mr. Jocsak did not disagree with the valuation of $1,088,126 but offered an alternative calculation using a “normal retirement date” of age 65 resulting in a value of $799,951 blended with a “termination value” of $1,030,921 and an “early unreduced retirement age value” of $1,129,684 for an imputed value of $999,198.
[126] The difference between the two approaches is $88,928, one half of which is $44,464.
[127] The evidence in support of a “normal retirement” age of 60 is persuasive. It can be found throughout government publications and its website. The latter states clearly:
The normal age of retirement for new employees who become plan members on or after January 1, 2013 is increased from 60 to 65 and all other age-related benefit thresholds are also increased by five years. Plan members subject to the post-2012 plan provisions are referred to “internally” as Group 2 members, while those who remain covered under the pre-2013 plan rules are referred to as Group 1 members. [11]
[128] Mr. Wolgelerenter pointed out these resources, with emphasis on the employee guide for the pension and online videos, which state the “normal retirement date” for Group 1 members to be age 60. [12] He referenced similar federal pension plans, such as the Nav Canada plan which does define the normal retirement date as age 60. Anchoring his opinion that the “normal retirement date” could not be any date other than 60 was his summary of the Group 1 eligibility terms for a reduced pension under the PSSA that allow an early reduced pension 10 years prior to the age of 60.
[129] I note that the legislation itself (PSSA R.S.C., 1985, c. P-36) reflects a distinction between the end of employment date for Group 1 and Group 2 contributors in determining how their annuities should be computed. For example:
Group 1 contributors with less than two years of pensionable service
(1) The following provisions are applicable in respect of any contributor described in subsection (2): (a) if the contributor ceases to be employed in the public service, having reached 60 years of age, or ceases to be employed in the public service by reason of having become disabled, he or she is entitled, at his or her option, to (i) an immediate annuity, or (ii) either a cash termination allowance or a return of contributions, whichever is the greater;
Group 2 contributors with less than two years of pensionable service
(2) The following provisions are applicable in respect of any contributor described in subsection (3): (a) if the contributor ceases to be employed in the public service, having reached 65 years of age, or ceases to be employed in the public service by reason of having become disabled, he or she is entitled, at his or her option, to (i) an immediate annuity, or (ii) either a cash termination allowance or a return of contributions, whichever is the greater;
[130] The evidence in support of a normal retirement date of age 65 was presented by Mr. Jocsak. He agreed that for most pension plans in which the term is defined, the early unreduced retirement age is the “normal retirement date,” but that such treatment is not universal. For example, the Healthcare of Ontario Pension Plan (HOOPP) has an unreduced early retirement age of 60 like the PSSA, but a defined “normal retirement date” of age 65. Further in support of a normal retirement age of 65 he referenced the actual plan experience of over 40% of plan-holders retiring after the age of 60, suggesting that if given a plain English reading, “normal retirement age” would be closer to age 65. Ultimately, it was his view that either age 60 or 65 could be appropriate as the question is a legal one.
[131] I find that “normal retirement date” for the purpose of a section 67.2 of the Pension Benefits Act valuation of a Group 1 PSSA employee is age 60. It better accords with how the government represents the plan terms to its members and the manner in which the pension is administered. The amount to be transferred from Mr. Berman’s pension to a pension-like vehicle held by Ms. Diamond shall therefore be $544,063; being 50% of $1,088,126.
[132] Mr. Berman shall complete any and all forms required to effect the division of his pension at source, including but not limited to Form PWGSC-TPSGC 2486 and Form PWGSC-TPSGC 2484.
Pre-judgment Interest on the Equalization and the Pension
[133] Mr. Berman asks for, and Ms. Diamond opposes a payment of prejudgement interest on the equalization. Ms. Diamond asks for, and Mr. Berman opposes a payment of prejudgment interest on the pension. For the reasons set out below, I decline to grant Ms. Diamond any prejudgement interest on the pension; and I grant Mr. Berman interest on the equalization payment.
[134] Prejudgement interest is a discretionary award provided for in section 128 and 130 of the Courts of Justice Act. Prejudgement interest is generally used in family law to redress inequity caused by the action of a spouse who has delayed a payment or received a benefit from the withholding of an asset or payment to the detriment of the entitled spouse. The availability of prejudgement interest acts to encourage the timely settlement of equalization claims: Heon v. Heon (1989) at p. 302.
[135] There are exceptions. The Ontario Court of Appeal in Burgess v. Burgess, 1995 CarswellOnt 896 sets out at paragraph 25 that the discretion not to award prejudgement interest will be exercised in circumstances in which, “for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial.”
[136] Mr. Berman’s PSSA pension is a defined benefit plan. When a defined benefit pension is divided at source, the date of separation value is the value of the future income stream, not its current value (as would be the case with a defined contribution pension). The pension is not an asset on which the holding spouse can realize, nor does he have the use of it prior to trial – or anytime prior to it going into pay. No action on Mr. Berman’s part has delayed receipt of the future income.
[137] I find that a pension divided at source is an exception to the assets on date of separation for which the court has discretion to award prejudgement interest.
[138] Mr. Berman asks for prejudgement interest on the equalization payment of $73,351.77.
[139] He is owed a payment primarily because the savings held by Ms. Diamond on the date of separation exceeded his own, once the pension is divided at source. As above, prejudgment interest should not be awarded as a matter of course and there is a basis for denying the interest on the equalization payment: the significant delay occasioned by Mr. Berman’s efforts to forestall the sale of the home.
[140] At the same time, Ms. Diamond has had the ability to realize on the savings that give rise to the equalization payment, (not the house sale proceeds which are held in equal shares) and she has had the use of her savings, and the ability to generate income on those assets. I am prepared to grant Mr. Berman interest on the equalization payment at the prescribed rate in the Act, commencing February 1, 2017.
Mr. Berman’s claim for damages resulting from a failure to pay out the house sale proceeds
[141] The net house sale proceeds were placed in an interest savings account pending an agreement between the parties or a court Order for their dispersal. Mr. Berman asks for an Order for the difference between a deemed high interest savings account at 3% interest rates and the 0.90% which was actually earned. This is not an Order available under the Courts of Justice Act, or any other statute brought to my attention.
[142] At no time during the litigation did Mr. Berman bring a motion for distribution of the sale proceeds. I have no evidence with respect to the savings vehicle proposed. The claim is dismissed.
Post Separation Adjustments
[143] On consent, it is agreed that Ms. Diamond will pay Mr. Berman $18,875 from her share of the net sale proceeds of the matrimonial home as a full settlement of all post-separation accounting issues owed by either party to the other. It is also agreed that there shall be no prejudgement interest on the payment. Costs on the issue of the post separation accounting will be decided at the oral hearing, (paragraph 146.)
Credit of $28,800
[144] My July 4, 2018 temporary Order provided for a payment of $28,800 as an uncharacterized advance to be later credited. Given the decisions above with respect to support, it is an amount to be now repaid to Mr. Berman as a capital amount. There shall be no interest payable on the $28,800.
Divorce
[145] The claim for divorce is severed from these corollary issues. Either party is free to apply for an Order for Divorce.
Costs
[146] This decision is being released on the day prior to a court wide shut down due to Covid-19; so I will separate the timeline for the service of costs submissions from the date by which they are to be filed. All submissions are limited to five pages in length, exclusive of Bill(s) of Costs and Offer(s) to Settle. No case book is required – only the citations.
[147] The applicant shall serve her submissions by April 24, 2020, the respondent shall serve his responding submissions by May 29, 2020 and reply shall be served by June 15, 2020. All submissions to be filed by June 30, 2020 and may be filed together.
Madam Justice H. McGee
Released: March 16, 2020
Footnotes
[1] I was advised during Closing submissions on February 4, 2020 that the drawers had been returned.
[2] The portion of Ms. Diamond’s 2018 payout for accrued vacation pay that accrued prior to the date of separation should be a date of separation asset per the analysis above, but I was not given any details on when the entitlement arose. Given its relatively small value, and counsel’s request to treat the retroactive pay and the vacation pay in the same manner, I have included it in Ms. Diamond’s 2018 income.
[3] It does not appear that in creating his Exhibit Books of “thousands of job postings,” in the GTA that Mr. Berman took any notice of Ms. Diamond’s particular employment profile or the rate of pay associated with the position. He remains frustrated that she did not apply to any of his collected opportunities, many of which he would leave in plain view in the home.
[4] There were numerous displays of this long-standing treatment in the post-separation correspondence. For example, in an email dated July 8, 2019 he writes to her “...really getting tired of dealing with your incompetence on every single matter.”
[5] As set out in my Motion endorsement, being the mid-range on incomes of $103,977 for Mr. Berman and $40,740 for Ms. Diamond.
[6] That is, a use for which he did not agree.
[7] The regulations giving form to the FLSAA came into force over time, with the most significant changes to the treatment of pensions enacted through regulations that came into force on January 1, 2012.
[8] Section 27 of the regulation sets out the prescribed retirement savings arrangements available as: a “life income fund” that is governed by Schedule 1.1 of the General Regulations [which means a RRIF that meets the requirements set out in Schedule 1.1 of R.R.O. 1990, Reg. 909 ]; and a “locked-in retirement account” [which means an RRSP that meets the requirements set out in Schedule 3 of R.R.O. 1990, Reg. 909].
[9] Group 1 are those members who entered the pension prior to January 1, 2013.
[10] However, the proper remedy is an amendment to the legislation so that “normal retirement date” is defined.
[12] The government’s guide for members hired before January 1, 2013 can be found at http://psacunion.ca/sites/psac/files/attachments/pdfs/psac-group-1-retirement-tips-en.pdf
