COURT FILE NO.: FS-17-89680

DATE: 2020 06 05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

T.C.M.W.

Paul S. Pellman, for the Applicant

Applicant

• and -

R.K.W.

Elliot Vine, for the Respondent

Respondent

HEARD: July 10, 11, 12, August 6, 2019

REASONS FOR JUDGMENT

McSweeney J.

Introduction

[1] These are my reasons for judgment following a family law trial to determine issues of income, child support, spousal support, s. 7 expenses and equalization following the parties’ 18-year relationship.

[2] The Applicant, Ms. T.C.M.W. (“wife”, “mother”) and the Respondent, Mr. R.K.W. (“husband”, “father”) started living together in September 1997 and married in September 1999, when the Applicant was 25 years old and the Respondent was 30 years old. They have three children, all boys, born in 1997, 1999 and 2003. For the sake of their privacy, I have referred to the parties by initials and will refer to the sons as the Oldest, Middle and Youngest Sons.

[3] The parties separated when the Applicant moved out of the matrimonial home on November 13, 2015. Her departure from the home followed what she describes as sexual violence and other frightening behaviour toward her by the Respondent, which he denies. Their sons were 17, 15, and 11 at that time.

[4] Ms. T.C.M.W. issued an Application on June 26, 2017 seeking a divorce, custody, child and spousal support retroactive to the date of separation, continuation of coverage for herself and the children under the Respondent’s employment benefits, and life insurance to secure support obligations

[5] In her property claims, the Applicant seeks to share in the post-separation increase in the value of the matrimonial home and advances a constructive trust claim for this purpose. She also seeks an equalization of net family properties.

[6] In his Answer, the Respondent agreed to the claim for divorce. He agrees that some spousal support is appropriate but only from the date of the Application. He has paid spousal support of $1,500 per month since November 2017 on a without prejudice basis.

[7] The Respondent counterclaimed against the Applicant for benefits for himself and the children, custody, child support retroactive to separation, contribution to the children’s s. 7 expenses, and equalization of net family properties. He opposes the constructive trust claim.

[8] By the date of trial, the parties’ sons were 21, 20 and 16 years old. The parties agreed that there were no issues regarding custody or access. They agreed that the Oldest Son ceased to be a child of the marriage as of the end of April 2018 when he completed his education. They agreed that the Middle Son started post-secondary education in September 2018.

[9] The parties have agreed to an order for joint custody (shared decision-making) of their Youngest Son. The evidence supports a finding that such an order is in his best interests.

[10] An issue did arise during the trial regarding the residence of the Youngest Son, who had recently chosen to live more of the time with the Respondent. To their credit, the parents were able to work out this issue shortly after the trial ended. The court was advised by parties’ counsel in the fall of 2019 that they had agreed on a shared residence schedule for the Youngest Son.

Issues

[11] The following factual and legal issues remain:

1. Parties’ income:

a. What is the income of each party?

b. Should annual income beyond $30,000 be imputed to the Applicant?

c. Should self-employment income be imputed to the Respondent?

2. Child support:

a. What child support is owing between the parties?

3. Spousal support:

a. On what basis, and in what quantum/duration, is the Applicant entitled to spousal support?

b. Should spousal support be retroactive?

4. Section 7 expenses:

a. Do any of the parties’ post-separation expenditures relating to the children qualify as extraordinary expenses?

5. Regarding the constructive trust claim:

a. Is the Applicant entitled to share in the post-separation increase in the value of the matrimonial home?

6. Regarding the equalization of net family properties:

a. What is the Applicant’s date of marriage debt?

b. What is the value of household contents?

c. Should the Applicant reimburse the Respondent for interest paid on her line of credit withdrawals?

Positions of the parties on the issues

Position of the Applicant

[12] The Applicant seeks spousal support retroactive to the date of separation. She argues that the Respondent had effective notice of her claim at separation and that the reason for her delay in advancing the claim was her fear of her husband and the trauma she experienced due to his violence. She seeks spousal support in the high range to reflect her contribution to the marriage and the fact that she raised the children at the expense of her own full workforce participation over the 18 years of the parties’ relationship.

[13] The Applicant asks that an income be imputed to the Respondent on top of his regular employment wages to include income from his DJ self-employment business.

Position of the Respondent

[14] The Respondent resists any imputation of income beyond his Bell Canada salary. He asks that the Applicant’s post-separation income be imputed at a higher level on the grounds that she was underemployed and should have made greater efforts to find more remunerative work. He submits that any spousal support payable should commence on the date of the Application because the Applicant had not sought spousal support from him prior to that date. He seeks retroactive child support from the Applicant for the time after separation when the children were living with him.

[15] With respect to the matrimonial home, the Respondent opposes the Applicant’s constructive trust claim. He submits that the equalization calculation fairly includes the Applicant’s contributions to the home during the marriage and that there is no unjust enrichment or unconscionability on which to base any trust remedy. The appropriate valuation date of the matrimonial home for equalization purposes is therefore the date of separation.

Issue 1: Income of the Parties for Support Purposes

Applicant’s Income for Support Purposes

[16] The Applicant did not file taxes for 2015, 2017 or 2018. She testified as to the jobs she had during those years. She submits that an income of $30,000 per year is an accurate reflection of her income from the separation in November 2015 until February 2018, when she started a higher-paying position with the City of Mississauga.

[17] The Respondent does not dispute that $30,000 describes the Applicant’s annual income over this period. The parties agreed as fact that her income was comprised of the $22,000 per year she earned in an administrative position at T-Rox Music Academy (“T-Rox”), plus income from part-time marketing work for organizations including the Ontario Turkey Farmers’ Association.

[18] The Respondent argues, however, that the Applicant was intentionally underemployed from November 2015 to January 2018. He submits that a higher income should be imputed to the Applicant because she should have looked harder and sooner for better paying work after their separation. If the Applicant had accepted positions that he believes were offered to her after separation, the Respondent submits that she likely would have earned additional income in the range of her City of Mississauga salary of $54,000 before February 2018.

[19] I have considered the evidence on this issue. The Applicant testified that after separation she had to rent and set up a new home and ready it to house herself and her sons. During this time, she was struggling to establish and support herself with no financial assistance from the Respondent and continued working at her existing position at T-Rox, which was described on her C.V. as General Manager.

[20] At T-Rox the Applicant was in a familiar environment, having worked there since 2012. She began with part-time work, but her hours then increased to 30+ hours a week in the years prior to separation. She had trained in vocal music through her childhood and adolescence and brought that musical background to her role. She also brought her marketing and sales experience to T-Rox. She testified that the position was enjoyable and that it “fed her soul” during the difficult post-separation period.

[21] She gave evidence that she had discussions with the owners of becoming a partner in the business, which she understood would increase her income. Unfortunately, the partnership offer did not materialize. The Applicant testified that she concluded near the end of 2017 that she would not become a partner at T-Rox.

[22] Evidence at trial confirms that the Applicant was actively looking and applying for other employment by the spring of 2017. She was ultimately successful in doing so and started her current City of Mississauga position in February 2018.

[23] In assessing the Respondent’s argument that the Applicant should have sought or accepted higher paying work sooner after separation, I must consider what was happening to the Applicant during that period. Although the children did not come to live with the Applicant after separation in the manner she anticipated, the Applicant continued to ensure that she was regularly available for the three boys after the separation. It was therefore not unreasonable, in my view, for her to continue working at T-Rox. The Applicant was well-suited to that employment and planning to join the ownership of the business.

[24] By contrast, the employment options that the Respondent claims she may have been offered or should have pursued during this time required either significant travel or significantly new skills, or both. For example, the Respondent testified that the Applicant was not willing to take a sales position for an air conditioning and heating company. In cross-examination, he conceded that the position would have required significant travel.

[25] In addition to applying for better-paying positions after the T-Rox partnership opportunity fell through, the Applicant testified that she looked to her personal networks to assist in her search. In fact, it was through a friend that she ultimately obtained her well-paying position with the City of Mississauga, for which she testified she had few formal qualifications.

[26] I find on the basis of the parties’ Agreed Statement of Facts that this position pays $54,000 per year, inclusive of a vacation pay percentage. I reject the Applicant’s argument that I should prefer her testimony that her salary is in fact $52,000.

[27] The Applicant testified that in this position she works for an elected official and is employed “election to election”, the next election being in 2022. The Applicant testified that a lower wage should be ascribed to her for the future because her employment is precarious. The basis for this position is her testimony that she had observed signs of job dissatisfaction in her boss, whom she fears may “move on” before the end of her elected term.

[28] I do not find the Applicant’s employment to be precarious on this basis. On her own evidence, she is employed until 2022.

[29] I accept the Applicant’s testimony that she experienced mental health issues (specifically anxiety) at and following separation. I also note that in her testimony, the Applicant referenced more than once being underqualified for her administrative position with the City of Mississauga and feeling at the beginning like she was “flying by the seat of her pants”. She clearly struggled with self-confidence in her new position. This observation is consistent with the Respondent’s testimony that in his view, the Applicant’s natural skill is with marketing rather than administration or financial matters.

Should income be imputed to the Applicant?

[30] The test for the imputation of income due to unemployment or under-employment pursuant to s. 19(1)(a) of the Federal Child Support Guidelines, SOR-97/175, was set out by the Court of Appeal for Ontario in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 219 D.L.R. (4th) 319 (Ont. C.A.), at para. 23. The trial judge is required to answer the following three questions:

Is the spouse intentionally underemployed or unemployed?

If so, is the intentional underemployment or unemployment required by virtue of the spouse’s reasonable educational needs?

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

[31] In this case, the Respondent alleges underemployment by the Applicant. On the totality of the evidence, the Applicant’s post-separation employment activity and searches were reasonable. I do not find that the Applicant was intentionally underemployed. The Respondent’s request to have income imputed to the Applicant therefore fails on the first branch of the test.

[32] As I have noted above, this was a period of significant upheaval in the Applicant’s life. She was transitioning to living alone and managing her own financial affairs for the first time in 18 years. It is notable that the Applicant nevertheless continued her employment steadily during this period and successfully positioned herself to earn significantly more by early 2018.

[33] I therefore decline to impute income to the Applicant. I find that the Applicant’s annual income from the date of separation to January 31, 2018 was $30,000. From February 1, 2018 forward, I find that the Applicant’s income for support purposes is $54,000 per year.

Respondent’s Income for Support Purposes

[34] During the marriage and after the separation, the Respondent had income from his full-time job at Bell Canada job and from self-employment. The parties’ dispute is over what income should be imputed to the Respondent for his self-employment.

Bell Canada Employment Income:

[35] It is undisputed that the Respondent receives annual income from Bell Canada in two parts: a base rate of $89,000 plus a bonus of about $12-14,000, which varies slightly from year to year.

[36] The Respondent’s evidence supports a finding that his annual income from Bell Canada, as summarized in his closing submissions, is as follows:

a. 2015: $113,058 (line 150)

b. 2016: $114,051 (line 150) - $2,233 (capital gains) = $111,818

c. 2017: $109,600 (line 150) - 1,043 (capital gains) = $108,557

d. 2018: $108,253 (line 150)

e. 2019: $108,253 (line 150) - 50% of $4,372 (half of dividend income after equalization of Respondent’s Bell shares) = $106,117 Income for Support Purposes for 2019

[37] The Respondent gave evidence that in the years 2016 and 2017, he sold some of his Bell Canada stocks to meet his extraordinary separation expenses. The stocks sold representing his property and savings resulted in a small capital gain income for each of those years. I agree that this income is not appropriately considered recurring income for support purposes, as the Respondent and his counsel confirmed that the value of the stocks at the date of separation is already accounted for in the equalization calculation.

Part-Time Self-employment Income

[38] The Applicant argues that significant income should be imputed to the Respondent for his self-employment. The Applicant asks that a total annual income of $125,000 be imputed to the Respondent, which equates to approximately $15,000-19,000 on top of his Bell Canada income. The Respondent argues that only $1,800 per year ($150 per month) of self-employment income should be considered income for support purposes, as the number should be net of business deductions and wages paid to Oldest Son.

[39] The parties agree that the Respondent’s self-employment income was made up of "DJing" and handyman work including cabling. The Respondent testified that he earns approximately $13-14,000 in gross revenue each year from these side business activities and had done so consistently during the marriage.

[40] The Respondent’s income tax returns were exhibits at trial. He testified that he reported all his self-employment income each year. A review of his returns filed for 2015 through 2018 shows he reported the following gross self-employment income:

a. 2015: $10,340

b. 2016: $18,438

c. 2017: $13,750

d. 2018: $14,111

[41] The Applicant testified that the Respondent earned more than the gross amounts that he reported on his income tax. Certainly, it is possible that the Respondent may not have reported all his cash income in full on his tax return. However, he denied doing so. The Applicant did not adduce any supporting evidence on which I could make a contrary finding on this point.

[42] I therefore accept the Respondent’s gross income figures as reported on his tax return as his gross self-employment income revenue for the purpose of this analysis.

[43] The next question is how much self-employment income should be added to the Respondent’s income for support purposes.

[44] In each of the tax returns put in evidence, the Respondent reduced his net business income to nil through business deductions. The Respondent asks the court to find that only $1,800 per year should be considered income for support purposes because the business expenses he claimed were permitted for income tax purposes and were not objected to by the Canada Revenue Agency.

[45] I agree with the parties that despite the Respondent’s reduction of business income to nil for tax purposes, some amount of income should still be added to his income for support purposes. That is, a nil net business income for tax purposes does not mean that the Respondent made no profit from self-employment at any time. If that had been the case, there would be no economic rationale for the Respondent to do any part-time work while raising a family. Both parties agree that during the marriage and following separation, the Respondent worked consistently at his self-employment and earned money that increased the household income.

[46] The Respondent testified about the business deductions claimed on his tax returns. These include significant claims for the costs of supplies, meals, equipment maintenance, vehicle use, and equipment rental. He confirmed on cross-examination that he writes off 20% of all expenses of the matrimonial home, including portions of all utilities, telephone bills, etc. He also confirmed that the use of the home for his DJ business is in fact only for storage of equipment “under the stairs” and use of a desk in the home.

[47] The Respondent also testified that in recent years he has asked the Oldest Son to assist him with the DJ work in order to help him “with his expenses and getting work experience”. He has paid the Oldest Son in the range of $3,000-$6,000 per year.

[48] The parties’ positions differ as to: (a) whether the gross income or income net of deductions should be added to the Respondent’s income; and (b) whether the income ascribed to the Respondent should be reduced if he gives his DJ work opportunities to the parties’ Oldest Son.

[49] I find on the evidence of both parties that the Respondent’s part-time DJ business was a significant part of his evening activities and social life during the marriage. When the children were younger, he spent several nights each week, end-week and weekend providing DJ services at local social events.

[50] I note that although the Respondent’s more recent tax returns list deductions for wages, he did not provide evidence to support this significant deduction. The court has no evidence on which to find that the business took deductions for the Oldest Son and paid him wages net of the required tax, nor that the Oldest Son reported the income.

[51] Further, on the Respondent’s evidence, the Oldest Son was living rent-free in his home. Both parties agreed as fact that their Oldest Son ceased to be entitled to support by May 2018.

[52] As a matter of income imputation, the Respondent is required to earn what he is capable of earning. The evidence establishes that over several years he earned significant income from his DJ and handyman activities. It is therefore reasonable for him to continue to do so, as he is obligated at law to continue to contribute to the support of his minor children and to such spousal support as may be ordered by the court. The Oldest Son lives with his father. By allocating income to him, whether he earned it or not, the Respondent is engaging in a form of income splitting. This is advantageous to the Respondent, as the funds are then taxed in the Oldest Son’s hands.

[53] I do not agree that paying business income to the Oldest Son should reduce the Respondent’s income for support purposes. On the evidence, the Respondent is providing free room and board to the Oldest son and giving away remunerative DJ opportunities to him. He has no legal obligation to do so; he does so in order to help his son. While that is understandably something the Respondent may choose to do, the legal priority for this allocation of income is to his child and spousal support obligations. Put another way, the court cannot condone a payor’s post-separation decisions to reduce his income for support purposes from what he is capable of earning.

[54] I should also note for the purpose of this analysis that the Respondent did not testify that by giving DJ work to his son, he was able to earn telephone cabling or other income at the same time. Nor would his gross self-employment income figures support such an argument in any event, as they do not reflect an increase in self-employment gross revenue in the years, he claims deductions for wages paid to the Oldest Son. I therefore find on the evidence that any wages paid to the Oldest Son were wages for performing work that the Respondent could have performed himself.

[55] Let me summarize this point. In a post-separation context, the Respondent’s decision to allocate up to $6,000 of income each year to an adult child under his roof, whether by giving him his own DJ work or by income splitting, is not a choice that should reduce the income imputed to him for support purposes. Neither party is required in law to support the Oldest Son.

[56] Yet by giving money to the Oldest Son and permitting him to live rent free, the Respondent has effectively reduced the money he has available to pay support to the Applicant. Once the children are no longer children of the marriage, the Respondent’s priority must be to pay child support as required for the remaining children of the marriage and to pay spousal support to the Applicant.

[57] Having found that not all of the Respondent’s business deductions were reasonable in the context of determining his income for support purposes, the next question is how much self-employment income should be imputed to the Respondent.

[58] I have reviewed the evidence of the business deductions claimed by the Respondent. Some of these deductions are supported by other documentation or are reasonable as out-of-pocket costs necessary to perform the work: rental and maintenance of equipment, for example. However, I find that the majority of costs incurred for meals, supplies, communications, car use and 20% of the matrimonial home carrying costs, would have been incurred regardless of the Respondent’s DJ business and therefore should not be deducted from his income for support purposes.

[59] Based on the evidence, I find that an annual deduction of $4,500 for business expenses is reasonable, if not on the generous side. This amount should be subtracted from the gross income reported by the Respondent for the years 2015-2018. The resulting figure must then be grossed up to reflect the fact that the Respondent received this income without paying income taxes on it. The resulting imputed self-employment income amounts for the years 2015-2018 are as follows:

a. 2015: $10,319

b. 2016: $24,628

c. 2017: $16,344

d. 2018: $16,982

[60] I must also consider what income to impute to the Respondent for 2019 and going forward.

[61] The Respondent has college training in electrical engineering. He worked as a phone technician and on crews “running cable” in downtown Toronto before moving to positions of increasing responsibility at Bell Canada and then Bell Mobility over the course of the parties’ marriage. At the time of trial, his work was described as designing cellular networks for Bell Mobility.

[62] The Respondent testified that cable and related technical work continues to be part of his self-employment income each year. In years in which there is less work on the DJ side of his business, it is reasonable for the Respondent to focus his time on his cabling work

[63] For 2019 and on a go-forward basis, the figure of $14,000 in gross self-employment income, less $4,500 for business expenses, and the difference grossed up, shall be imputed and added to the Respondent’s annual income for support purposes each year. This is the amount which the Respondent testified that he has consistently been able to earn from his self-employment activities over the years.

[64] That number shall be a minimum and is to be adjusted upward as necessary to reflect actual gross business revenue in any year the Respondent reports a higher figure on his income tax. The $4,500 for business expenses is to be a standing annual deduction for the reasons referenced above.

[65] In fixing the imputation figure going forward, the court takes into account the reality that if future imputed income were derived solely from the Respondent’s reported business income and deductions, facts known only to himself, the parties would likely become annually embroiled in disagreements about under-reported income and the reasonableness of the Respondent’s business deductions. A fixed imputed income recognizes the importance of predictability for both parties with respect to spousal support and proportionality in terms of the annual requirement to exchange documentation in order to calculate their respective child support obligations.

Issue 2: Child Support

Retroactivity of child support

[66] At trial both parties asked the court to make any orders for child support retroactive to the date of separation. The record in this case is not clear that either party gave the other effective notice at the time of separation that they were seeking child support. However, given that child support is the entitlement of the children and that neither party objects to my doing so, child support will be calculated retroactive to the date of separation for all three children.

[67] Both parties seek child support orders based on my findings with respect to their incomes as well as the residence schedule and the dependant status of each child since the date of separation. They agreed that the Oldest Son ceased to be a child of the marriage in April 2018 and that the Youngest Son has been a child of the marriage since separation.

[68] I have identified the incomes of the parties since separation above. The only further factual findings I am required to make to resolve the parties’ child support claims are (a) the date on which the Middle Son ceases to be a child of the marriage; and (b) whether the sons lived with the Applicant, the Respondent, or both, after their parents’ separation.

Evidence and Findings Regarding Each Son After Separation:

(i) The Oldest Son

[69] The parties agree that the Oldest Son ceased to be a child of the marriage at the end of April 2018. The longest potential time period for him for child support purposes, should I find that retroactive support is appropriate, is from December 1, 2015 to April 30, 2018, a period of 2 years and 5 months, or 29 months.

Oldest Son’s residence after separation

[70] The Oldest Son was 17 years old when his parents separated. The Applicant acknowledged in her evidence that while she expected all three sons to live with her after she left the matrimonial home, that is not what happened. She agrees that the Oldest Son continued to live in the matrimonial home with his father for at least the first year after separation. She testified that the Oldest Son visited her regularly during this time. When he started at Humber College in September 2017, she recalls that he started staying with her “more frequently” and that she would give him rides to Humber. Her recollection was that during that year, the Oldest Son maintained an equal schedule between his parents’ homes starting in September 2017.

[71] The Respondent agreed that the Oldest Son transitioned during the 2017-2018 academic year to spending about half his time at the Applicant’s by January 2018. However, he testified that from September to December 2017, the Oldest Son’s residence schedule was sporadic, and he was still living with the Respondent the majority of the time.

[72] In support of his position, the Respondent filed a schedule showing the number of nights per month that the Oldest Son stayed at the home of each parent. The Respondent testified that he developed and maintained this spreadsheet, and a similar one for each of his other sons, soon after separation on the advice of a friend.

[73] The spreadsheet indicates that the Oldest Son stayed overnight at his mother’s home a few nights each month after separation. From the separation in November 2015 to August 2017, he stayed at his mother’s sporadically, about 50 nights over a period of 22 months, or 2-3 nights per month on average. In the fall of 2017, the frequency of the Oldest Son’s nights at his mother’s increased, but he did not stay close to 40% of the month with the Applicant until January 2018.

[74] I have looked at the Respondent’s evidence, keeping in mind that he created the spreadsheet himself and that there was no independent evidence introduced by either parent to confirm where the Oldest Son slept on which night in those years. The Applicant asks that I give the spreadsheet little weight as it is self-serving.

[75] The spreadsheet data confirms both the Applicant’s testimony that the Oldest Son stayed with her more often once he started at Humber in the Fall of 2017 and the Respondent’s testimony that the Oldest Son’s residency was not equally split between his parents’ homes until January 2018. To that extent, the evidence in the Respondent’s chart is consistent with both parties’ evidence. I find it to be reliable.

[76] Therefore, the evidence at trial supports a finding that for the purposes of child support, the Oldest Son was resident with the Respondent father full time from the date of separation until December 31, 2017. From January 1, 2018 to April 30, 2018, a period of 5 months, he resided equally with both parents. As of May 1, 2018, the parties’ Agreed Statement of Facts confirms that he ceased to be a child of the marriage.

(ii) Middle Son

[77] The parties agree that, although he spends some time with the Applicant, the Middle Son has continuously resided with his father since separation for child support purposes. The parties agreed that the Middle Son took an extra year to finish high school and started post-secondary school in September 2018, at the age of 19.

[78] I find on the evidence that the Middle Son qualifies for the Table amount of child support until August 2018. Given that he has resided with the Respondent since separation, the Applicant is to pay child support to Respondent for the Middle Son from December 1, 2015 to August 31, 2018.

[79] However, I must also determine what support is payable after the Middle Son started his post-secondary education.

[80] The Respondent takes the position that the Table amount of child support should continue to be paid until the Middle Son finishes his four-year post-secondary program in 2023. The Applicant argues that the Middle Son will no longer need support while completing his post-secondary education because he will have his own self-employment income and access to the Ontario Student Assistance Program (“OSAP”) and monies from a Registered Education Savings Plan (“RESP”).

[81] The Respondent testified as follows about the Middle Son’s activities since separation. He did not “fail” grade 12, but he took an extra year to graduate as he was playing football and missed some credits. He started a four-year program at Centennial College in Media and Communications in September 2018. He lived on campus in residence. He spent significant time off campus during the school year. The Respondent maintained a home for the Middle Son during that academic year.

[82] The Middle Son did not complete the academic requirements for his program that year and withdrew from the Centennial College program after the 2018-2019 academic year. The Respondent testified that at the time of trial, the Middle Son had enrolled in a different four-year program, this time at Sheridan College. He planned to attend this program starting in September 2019 while living at home with his father.

[83] The evidence indicated that during the 2018-2019 academic year, the Middle Son had received approximately $12,000 from OSAP. The Respondent testified that the Middle Son obtained more money from OSAP by using the Applicant mother’s address on his application. The Respondent did not file the application, nor did he provide details about the terms of the OSAP funding.

[84] The Respondent gave evidence that the parties had put aside $5,000 for each of their sons’ education in RESP accounts. The evidence supports a finding that this was done prior to separation.

[85] The Respondent testified that in the 2018-2019 year, the Middle Son had access to $1,500 of his RESP and will have a further $1,500 for each of the next two years of study.

[86] The Respondent testified that the Middle Son also had a regular weekend part-time job through the 2018-2019 academic year but did not file evidence of the Middle Son’s earnings. It was not until the Respondent was in the witness box that he agreed to return the next day with such evidence. He then testified that the Middle Son’s Line 150 earnings were $12,743.91 in 2017 and $14,163.55 in 2018.

[87] Regarding the Middle Son’s decision to withdraw from Centennial College after the first year and to switch to a different program at Sheridan College, the Respondent testified that his son was “stubborn”. He testified first that his son was taking a “four-year diploma program in sports management”. Later in his testimony, the Respondent called it a “four-year program in film and video” so that the Middle Son could become a “sports broadcaster”.

[88] The court was given no information about the specific requirements or costs of the Sheridan College program, nor was a budget filed showing the Middle Son’s contributions to the costs of his education. The Respondent confirmed at trial that the Middle Son will be living with him and commencing the Sheridan College program in September 2019. He did not introduce evidence of the anticipated costs, budget or funding sources of the Middle Son’s studies.

[89] I note that an RESP established during the marriage represents family property belonging equally to both parents, held for the ultimate benefit of a child. As such, the portion of a child’s education costs paid with RESP funds is a contribution that the law views as made equally by both parents, regardless of how the contributions were made during the marriage.

[90] I must consider what duration of post-secondary support is reasonable for these parties. The Respondent explained in his testimony that the $5,000 RESP saved for each of their children could be used in one lump for the first year of post-secondary education, as their Oldest Son chose to do, or could be withdrawn in two or three parts to assist with the cost of a two- or three-year program. The Middle Son chose the three-year option.

[91] Section 3(2) of the Guidelines provides that if the child support that a child over the age of majority would otherwise be entitled to is inappropriate, the court may order another amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[92] The Respondent asks the court to order the Applicant to contribute table support for the previous 2018-2019 Centennial College year. He bases the request on his testimony that even though the Middle Son had paid room and board in residence on campus, he still returned to his father’s home during the academic year, particularly after sustaining a finger injury in 2019.

[93] On the evidence, I cannot conclude that the resources available to the Middle Son were insufficient to meet his costs during his 2018-2019 year in residence at Centennial College.

[94] Nor do I consider it reasonable for the Applicant to pay table support when the Middle Son had chosen to apply for and live in residence, and the RESP and other funds available to him had been put toward that cost. It is unclear on the evidence what costs were “thrown away” by the Middle Son’s decision not to stay in residence for the full year. I cannot find that the Middle Son’s part-time earnings were insufficient to enable him to contribute to the Respondent’s additional meal or other costs when he chose to stay with his father rather than on campus.

[95] For the foregoing reasons, the evidence does not support the Respondent’s position that the resources available to Middle Son did not meet his needs for his 2018-2019 Centennial College year. I therefore decline to order the applicant to pay support for Middle Son between September 1, 2018 and April 30, 2019.

[96] With respect to the remaining months of 2019, the evidence indicated that the Middle Son was living with the Respondent. The Respondent testified that the Middle Son would also be living with him during his four-year college program starting September 2019.

[97] During his testimony, the Respondent acknowledged that the Oldest and Middle Sons took a vacation to the Dominican Republic with the Middle Son’s girlfriend in July 2019. He testified that the Middle Son paid for his own trip, and had a part-time job.

[98] In the summer of 2019, the Middle Son had his own paid employment and sufficient income to fund a vacation to the Dominican Republic. I find that it is not necessary for the Applicant to pay child support for the Middle Son for the summer of 2019.

[99] It is fair and reasonable, however, that the Applicant pay support to assist Middle Son during his full-time post-secondary studies starting in September 2019.

[100] In considering the quantum and nature of support Applicant should contribute for Middle Son, it is relevant to consider the significant lack of communication between the parties with regard to expenditures, schedules, and other information related to their children. I do not anticipate a change to that reality, which began during the marriage and has varied little since their separation.

[101] As a practical matter, therefore, it is preferable for the court to make an order, which will which depends to a minimal amount on further communication or document exchange between the parties. That said, there is always an onus on a party requesting support to provide such updated information as needed to identify their continuing entitlement.

[102] In considering the post-secondary education support appropriate for the Middle Son, therefore, I must take into account the fact that he will be living with the Respondent full time.

[103] It was clear throughout the Applicant’s testimony that she had hoped all her sons would live with her after separation, including the Middle Son. Unlike his brothers, the Middle Son has stayed living with the Respondent. It was also clear that the Applicant places a high value on post-secondary education and wants to help her sons succeed in meeting their career goals.

[104] With respect to their Middle Son, both parents expressed pride in his athletic abilities and hope that he would pursue some post-secondary education. Each also conceded that academic achievement was not the Middle Son’s overall strength. Both referenced his habit of PlayStation video gaming, and the Respondent testified to his “24/7” attention to YouTube late into every night.

[105] The Middle Son’s withdrawal from Centennial College after failing to complete the first year would support the parents’ characterization of the Middle Son’s priorities at the time of trial.

[106] The Court may take judicial notice that young people mature at different rates, and that for some, perhaps for Middle Son in this case, the maturity required to persevere in achieving educational and career goals may not develop until their 20’s.

[107] I have considered all the above factors, as well at the evidence of the Applicant’s own income and circumstances. I note the Respondents’ testimony that the RESP funds saved for each child could be spread across one, two or three years. It is reasonable to infer from this that the parents wanted to be able to provide support for each of their children to help them attend programs up to three years’ duration. Such a plan is consistent with their own educational backgrounds. I conclude that it is also reasonable given the less academic and more applied nature of the Middle Son’s educational interests.

[108] I have already ruled that the Applicant is not required to pay additional support to the Middle Son for his 2018-2019 post-secondary studies. The Applicant is also not required to pay child support to the Middle Son for the summer of 2019.

[109] I consider it reasonable in the circumstances of this separated family for the Applicant to support at the table rate for the Middle Son for the first two years of his Sheridan program, commencing September 1, 2019, while he is residing with the Respondent. By doing so, the Applicant will be contributing to the Middle Son’s support through to the end of a third year of post-secondary studies in an amount and for a duration which I find on the evidence to be fair and reasonable.

[110] In order to be entitled to continue to receive this support from the Applicant for the Middle Son, the Respondent is directed to give the Applicant documentation of the Middle Son’s successful completion of his 2019-2020 course of study and enrollment confirmation for the upcoming year commencing in September 2020.

[111] Where a court order is requested seeking payments on behalf of a child of the marriage, it is the receiving parent’s obligation to substantiate entitlement as directed by the court. In this case, it is the Respondent, not the Middle Son, who is asking for support from the Applicant to help him meet the costs of housing the Middle Son during post-secondary education.

[112] To be clear, it is the Respondent’s responsibility to obtain and share these documents with the Applicant, not the Middle Son’s. The Respondent may explain to the Middle Son that the court has ordered proof of his continued enrollment and advancement in his Sheridan program before the Applicant is required to contribute to his support for those years.

[113] In conclusion, table support is payable by the Applicant for the Middle Son from December 1, 2015 until August 31, 2018 and from September 1, 2019 until April 30, 2021.

[114] Should the Middle Son cease to reside with the Respondent, withdraw from the Sheridan program, or be denied enrollment in the coming academic year, the Respondent shall advise the Applicant within 30 days. Upon any of those events occurring, the Applicant’s support obligation to the Middle Son shall cease.

(iii) Youngest Son

[115] The parties agreed that the Youngest Son resided equally with both of them after separation, with the exception of a period during which he had a disagreement with his mother and stayed with his father. They seek a consent order for joint custody and shared residence of Youngest son. I so order.

[116] The evidence supports a finding that from March 1 to August 31, 2019, the Youngest Son lived more than 60% of the time with the Respondent. This is a period of six months.

[117] For that six-month period from March 1 to August 31, 2019 only, full table support for the Youngest Son is payable by the Applicant to Respondent.

[118] From December 1, 2015 to February 28, 2019, and from September 2019 forward, however, child support payable by the parties for the Youngest Son is to be calculated on the basis of his shared residence.

Method of Calculation of Child Support

[119] Both parties’ child support calculations and submissions are based on DivorceMate calculations in which the set-off calculations relating to each son’s residence are factored automatically into the resulting numbers.

[120] Having taken the same methodological approach, the parties child support figures differ because they have input different figures into DivorceMate. The facts in dispute which affect the resulting calculations are (a) the income of each parent for support purposes; (b) whether spousal support is payable and in what amount; (c) the applicable residence schedule for each son; and (d) the eligible period of post-secondary education entitlement for the Middle Son.

[121] I am satisfied that the child support set-off approach taken by both parties, using DivorceMate calculations based on the income of each parent and the residence of each child, is appropriate and reasonable in the circumstances. In reaching this conclusion, I have reviewed the Guidelines and also considered the Supreme Court of Canada’s decision in Contino v. Leonelli‑Contino, [2005] 3 S.C.R. 217, 2005 SCC 63.

Issue 3: Spousal Support

Entitlement, Quantum and Duration:

[122] The Applicant asserts a compensatory and non-compensatory spousal support entitlement. She pleads that she suffered significant economic disadvantage as a result of the marriage and that an indefinite award in the high range is appropriate.

[123] The Respondent does not dispute the Applicant’s entitlement to spousal support but asks that it be set at the mid range and either terminated after 13 years or made reviewable after a fixed period. In this regard he points to the Applicant’s social personality, her strengths and the fact that he supported her return to the workforce in the later years of the marriage by assuming after-school responsibility for their sons several evenings each week so that she could work.

Legal Framework

[124] Relevant purposes of an award of spousal support include recognition of a spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse, promotion of self-sufficiency and relief from economic hardship.

[125] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at para. 33, the Supreme Court of Canada confirmed that for married spouses, consideration must be given to all the purposes of a support order set out in s. 15.2(6) of the Divorce Act, clarifying that an order providing for the support of a spouse should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[126] In Moge and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada held that a compensatory order for spousal support may be awarded where a spouse's education, career development, or earning potential have been impeded as a result of the marriage.

[127] Compensatory support is premised on marriage being a joint endeavour, and it seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the marriage. It is concerned with an equitable sharing of the benefits of the marriage: Poirier v. Poirier, 2010 ONSC 920, at para. 47.

[128] The legal considerations for the entitlement to compensatory support were reviewed by Chappel J. in Thompson v. Thompson, 2013 ONSC 550, at para. 55:

The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

[129] The Applicant also seeks non-compensatory support. Entitlement on this basis is found where the evidence establishes a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life: Department of Justice Canada, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), at p. 6.

Findings and Analysis

[130] The Applicant’s work history is summarized in the parties’ Agreed Statement of Facts filed at trial. Further evidence was provided by the Applicant in her testimony.

[131] The Applicant testified to graduating with honours from high school but being unable to go to university due to her family’s financial difficulties. Instead, she started working in clothing retail in 1992 shortly after she turned 18. While working, she obtained a business certificate from Algonquin College. By the age of 20, she was given responsibility for merchandizing for a large area of Southern Ontario for a chain clothing retailer.

[132] By the age of 23, the Applicant had been promoted to Assistant Manager by a clothing retailer in one of its larger mall locations. She worked in this position until the birth of the parties’ Oldest Son in 1997. She returned to work from maternity leave after five months in order to take a promotional position as full Manager. That position lasted from April 1998 to the store’s closure in the fall of that same year. At that point the Applicant was pregnant with the parties’ Middle Son.

[133] In 1999, the parties decided that it was more economical for the Applicant to stay home with their two children than to pay for daycare. In 2003, she gave birth to the parties’ Youngest Son.

[134] The Agreed Statement of Facts indicates that the Applicant was active as a volunteer at the boys’ school and in taking them to an extensive list of lessons from the time they were very young. The Oldest Son had health problems requiring a further year at home before kindergarten, until shortly before the Youngest Son was born.

[135] As homemaker and primary caregiver for the children, the Applicant was responsible for shopping, meal preparation, laundry and taking the children to doctor appointments and most lessons.

[136] The Applicant was resourceful at finding part-time remuneration opportunities while she stayed home with the children. She became quite animated describing her enjoyment of the range of part-time and casual job opportunities she was able to find or create for herself while raising the children.

[137] By 2012, when the youngest was nine years old, she obtained an administrative job at T-Rox, where her sons took music lessons. This position evolved from three to five days a week by the time of separation, at which time she was earning $22,000 per year.

[138] On the basis of this evidence, I find that the Applicant’s strengths are that she enjoys working, is highly motivated to succeed, and is able to develop new skills and subject matter expertise quickly. She has particular natural talent in communication and persuasion, which has assisted her in sales and marketing roles in the past. On the challenges side, she carries significant self-doubt based on her lack of formal qualifications and the time she spent out of the workforce and economically dependent on the Respondent. With respect to her current position with the City of Mississauga, she expressed repeated doubt that she was qualified for the job or would ever, if it ended, find another like it.

[139] To summarize, during the approximately 15 years she was out of the full-time workforce, the Applicant was occupied on a full-time basis with responsibility for the house and children, including having primary responsibility for shopping, cooking, cleaning, gardening, scheduling and coordinating attendance at several sports and activity lessons for each child and scheduling and taking all three children to dentist, doctor and other health appointments.

[140] I accept that for the last approximately one to two years of the marriage, the Applicant had returned to full or almost full-time work at T-Rox.

[141] I find on the evidence that the Applicant had worked hard in the retail industry for five years and been promoted twice by the time she put her career on hold for the sake of the family at age 25. She was out of the full-time workforce for over 15 years, until the age of 40, in order to provide care for the children and the home and support the Respondent as the primary income earner.

[142] Per the Spousal Support Advisory (SSAG) Revised User Guidelines, I must consider where the Applicant would have been, in terms of income and self-sufficiency, if she had continued in the labour market during those years of her life.

[143] Considering the evidence of the Applicant’s energy, drive and interest in retail sales and working with people prior to leaving the workforce in 1998, and her early return from maternity leave in 1998 to take a managerial promotional opportunity, it is reasonable to predict that she would have continued along this path if she had not left the workforce, obtaining for herself more promotional opportunities as she gained skills and experience.

[144] To the Applicant’s credit, she returned to work before the end of the marriage and in 2018 obtained a well-paying contract job. This position is not in the retail, marketing or sales area, but it does draw on some of her administrative and people skills. It is a four-year contract.

[145] The evidence supports a finding that the Applicant is not as well placed, in either training or work experience, to move into more economically remunerative work or retain a position at her current income level as she would have been if she had stayed in the paid workforce instead of focusing on raising her family.

[146] I further find that by putting her own career on hold, the Applicant contributed to the Respondent’s career development and to the economic and social success of the family. The parties’ decision to have the Applicant remain at home when the children were young enabled the Respondent to enjoy an uninterrupted career and devote time and energy to his full-time employment and part-time businesses.

[147] As the secondary earner in the marriage, the Applicant made decisions to stop and to re-start part-time work when her child care and other family responsibilities permitted her some time to do so, not when it was optimal for her own career trajectory. As a result, she was out of the full-time workforce from her mid-20’s and throughout her 30’s. These are important career development years, during which she otherwise would have been able to work in order to position herself for higher income opportunities for the remainder of her working life.

[148] I therefore conclude that the Applicant’s career development and earning potential have been impeded as a result of her marriage.

[149] In this regard, the following analysis of Chappel J. in Thompson v. Thompson, at para. 59, applies to the Applicant’s circumstances:

… A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse or from adopting a less lucrative career path in order to accommodate the needs of the family.

[150] To his credit, the Respondent did assume more responsibility for early-evening care for the children in their teen years in the last few years of the marriage so that the Applicant could work outside the home. Nonetheless, the Applicant’s ability to support herself and maintain a lifestyle close to that enjoyed by the parties’ during the marriage is significantly reduced because of her 15 years out of the paid workforce.

[151] On my findings and conclusions above, the Applicant has a strong compensatory claim for spousal support. While she is entitled to support on compensatory as well as needs bases, I must emphasize that the primary ground on which I base the spousal support entitlement is compensatory.

[152] I conclude that the evidence supports the Applicant’s entitlement to a spousal support award at or near the high end of the range.

[153] In reaching this conclusion I have also considered the following factors which are relevant to the duration and amount of support:

1. the length of parties’ relationship, which I find on the evidence to be 18 years;

2. the parties’ age at separation, with the Applicant being 41 and the Respondent 47;

3. the children’s residence being shared between the parties, with the Middle Son residing exclusively with the Respondent since separation; and

4. the parties’ incomes, which are set out above.

[154] In setting the appropriate amount of spousal support, I have taken into account the amount of child support being paid. Given the changes in ages and residence of the three children in the more than four years since separation, and the increase in the Applicant’s income in 2018, the child support owing changes as to payor and quantum over that period. Those changes affect the spousal support payable over that period.

[155] In arriving at an appropriate quantum for spousal support, I have also considered that since separation, the Respondent payor has always had more of the children living in his home than the Applicant. I have therefore considered the net disposable income of each household and considered a ratio of 45%:55% NDI between Applicant:Respondent.

[156] In determining the appropriate duration for spousal support in the case before me, I must consider the evidence relevant to the circumstances of the parties in this case.

[157] Application of the SSAGs, and input of the parties’ “data points” into DivorceMate, can be a useful “cross-check” for spousal support: see Poirier v. Poirier, 2010 ONSC 920, at para. 116. Doing so produces a suggested duration of support near the cusp of the definite/indefinite support duration.

[158] For the reasons that follow, I find that an indefinite award is appropriate in this case.

[159] I have found that the Applicant has a significant compensatory entitlement to spousal support. She has experienced demonstrable economic disadvantage as a result of the roles assumed by the parties during their 18 years together.

[160] To her credit, the Applicant has worked full time since separation. In the context of the spousal support analysis, however, she has not achieved self-sufficiency. The Court of Appeal for Ontario has emphasized that in the spousal support analysis, self-sufficiency is a relative, not a free-standing concept. It must be assessed in the context of the standard of living previously enjoyed by the parties: see Reisman v. Reisman, 2014 ONCA 109, 118 OR (3d) 721, at para. 28.

[161] The parties in this case maintained a traditional long-term relationship for 18 years. In doing so their economic lifestyles merged, creating a standard of living that the Applicant cannot hope to replicate on her own, but to which both parties became accustomed over the course of the marriage. As described above, the Applicant’s left the paid workforce in order to raise the parties’ three children. This absence took place during her key learning and career development years.

[162] As such, it is highly unlikely that she will ever earn enough on her own to a achieve a standard of living close to that enjoyed and maintained by the parties during the economic partnership of their marriage: see Fisher v. Fisher, 2008 ONCA 11, 2002 ONCA 11, 88 OR (3d) 241, at para. 55.

[163] I find further support for my conclusion in the evidence of the Respondent’s income and of the parties’ lifestyles since separation.

[164] The evidence indicated that during the marriage the family’s leisure time included vacations taken by the parties together as a couple, including a trip to St Martin/Maarten a few years prior to separation.

[165] The Applicant testified to significant indebtedness after separation and to requiring financial support from her mother. The only travel she did was in relation to Youngest Son’s dance activities.

[166] By contrast, the Respondent conceded that since separation, he had enjoyed several trips himself and paid for others for the children. The Respondent’s vacation trips included:

a) Christmas 2018 in the Dominican Republic with the parties’ children, the Respondent’s girlfriend, and her two children;

b) a spring 2019 a trip with his girlfriend to Machu Picchu, Peru

c) a trip to Mexico with his parents

[167] During his testimony the Respondent acknowledged that Oldest Son and Middle Son were away that week on vacation in Dominican Republic with Middle Son’s girlfriend. He testified that Middle Son paid for his own trip, and that he gave his Oldest Son $1000 for the trip.

[168] The Respondent’s testimony that he lived “paycheck to paycheck” after separation was not consistent with discretionary expenditures he described during this period. In addition to the above vacation costs, these included: $1,500 loans to the two older sons to purchase used cars; paying $1982 for repairs for Middle Son’s car, $10,000 for Middle Son to participate in an elite football program; and a planned large expenditure for Middle Son’s 21^st birthday in 2020.

[169] In reaching a conclusion on the spousal support issues in this case, I have also considered the result of the parties’ relative positions in their property settlement issues. In this case the result, while not unjust nor unconscionable, is significantly more favourable to the Respondent, who retains the post-separation increase in value of the matrimonial home. He also benefits as property owner by having his housing costs contribute to his equity. By contrast, the Applicant has been in rental accommodation since separation and is less likely to be able to afford to buy a home on her own without incurring significant debt, if she is able to afford property at all.

[170] For the reasons above, I conclude that spousal support is payable to the Applicant for an indefinite duration at or near the high end of the range.

Spousal Support Retroactivity

[171] The Applicant seeks spousal support retroactive to the date of separation. It is common ground that the parties separated in November 2015, but the Applicant did not issue her claim until late June 2017, approximately 20 months later. The Applicant argues that she gave the Respondent effective notice of her spousal support claim through counsel at the time of separation. The Applicant also submits that a retroactive award is appropriate in this case because, in any event, her delay in bringing a claim was due to her fear of the Respondent and the fact that she was focused on rebuilding her life after the separation.

[172] The Respondent argues that the Applicant did not give him notice of her spousal support claim until she commenced her application in June 2017. Spousal support should therefore be retroactive only to the date of the application.

Legal Framework:

[173] The general framework for retroactive spousal support is set out in the Supreme Court of Canada’s decision in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, which held that the framework for retroactive child support outlined in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, also applies to retroactive spousal support, although there are some important modifications.

[174] The D.B.S. factors – namely, (i) the needs of the recipient, (ii) the conduct of the payor, (iii) the reason for the delay in seeking support and (iv) any hardship the retroactive award may occasion on the payor spouse – must be weighed and considered in the context of the different legal principles and objectives that inform spousal support.

[175] Unlike child support, there is no presumptive entitlement to spousal support and a spouse is generally not under any legal obligation to look out for the other separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see Kerr, at para. 208.

[176] Having established that a retroactive award is due, the general rule is that the commencement date for support is the date of effective notice: D.B.S., at para. 118. The court may therefore make an order for retroactive spousal support that predates the issuing of a claim.

[177] In considering a claimant’s alleged unreasonable delay in seeking support, there are two important concerns. The first is the payor’s interest in certainty of their legal obligations. The possibility of a retroactive order makes it more difficult to plan one's affairs and a sizeable retroactive award for which the payor did not plan may impose financial hardship. The second concerns placing proper incentives on an applicant to proceed with their claims promptly: see Kerr, at para. 209, citing D.B.S., at paras. 100-103.

[178] In assessing the Applicant’s claim for retroactive spousal support, I have considered the legal principles and particular concerns regarding spousal support as outlined by the Supreme Court of Canada and summarized above.

Evidence re delay in advancing claim

[179] The Applicant testified that she was feeling increasingly unsafe around the Respondent in the months prior to separation. During this time, they were having marriage problems. The Respondent testified that he believed the Applicant was cheating on him with a co-worker. The Applicant denied this.

[180] The Applicant testified that in July or August 2015 she noticed an unfamiliar app on her Bell cell phone. When she showed it to the Respondent, he took the phone from her. When he returned it to her later, the app was gone. After this incident, the Applicant researched the app online and discovered it was “spyware” which would capture and record the user’s keystrokes when installed on a phone. She then found emails confirming the Respondent’s recent purchase of this spyware product.

[181] The Respondent admitted purchasing the spyware after a co-worker encouraged him to secretly track his wife to obtain more information about the Applicant’s movements. He testified that at this time he wanted to “know where [the Applicant] was” when she was not at home. He testified that he did not ultimately install the app on the Applicant’s phone as it did not work well and because he decided doing so would be “crazy”.

[182] The Applicant testified that on the evening of September 15, 2015, the Respondent sexually assaulted her. He forced himself on top of her and had intercourse with her while the children were asleep.

[183] After the assault, the Applicant moved to the living room and slept there at night. The Respondent then brought his mattress into the living room and slept on the floor next to her, positioning the mattress so that she could not leave the house, or even go to the bathroom, without stepping over him.

[184] The Respondent denied sexually assaulting the Applicant. He did not offer a reason for the Applicant moving to the living room in September 2015. He did agree, however, that when she did so, he moved his mattress to the living room. He testified that he did so in order to be “closer” to her but agreed on cross-examination that “perhaps” this was intimidating to her.

[185] The Applicant testified that she contacted a women’s shelter after September 15, 2015. A shelter worker helped her access support and make plans to move out of the matrimonial home. On November 13, 2015, the shelter arranged a truck and movers to move her belongings out while the Respondent was at work. The moving process ended when a neighbour alerted the Respondent, who came home from work shortly thereafter.

[186] The parties both testified that the Applicant’s moving process ended shortly after the Respondent arrived, that she returned her house keys to him because he asked for them, and that the Respondent changed the house locks some time later.

[187] The Applicant retained counsel before she moved out. Exhibit 1 at trial was the Applicant’s original counsel’s letter to the Respondent. Although dated November 12, 2015, it was not given to the Respondent until November 13, 2015, after the Applicant had moved out.

[188] In this first letter, counsel advises the Respondent that her client has moved out of the matrimonial home, has brought all three children with her, has moved to an undisclosed address, and asks the Respondent to contact the Applicant’s lawyer to arrange an access schedule.

[189] Counsel also writes that the Applicant “seeks to settle your family law issues by way of a separation agreement”, and that if she did not hear from him by November 30, 2015, she “will seek instructions from [the Applicant] about commencing court proceedings”.

[190] Trial Exhibit 2 is two emails from the Applicant’s counsel to the Respondent’s counsel. Her email of November 18, 2015 states in its entirety: “Thank you for speaking with me over the phone earlier today. Please confirm your client’s position on the family law issues (e.g., custody, support) so I can discuss them with my client.”

[191] Applicant counsel’s follow-up two weeks later, on December 3, 2015, forwards her November 18, 2015 email and states only, “As I am scheduled to meet with [the Applicant] next week, I would like to follow-up on [the Respondent’s] formal proposal so I can discuss them with my client.”

[192] Trial Exhibit 3 was a letter dated March 2, 2016 from the Applicant’s counsel to the Respondent’s counsel, stating, “Following our phone conversation sometime on February 9, 2016, I wish to follow-up on [the Respondent’s] full financial disclosure so that I can discuss them with my client. Among others, please provide his updated financial statement, income tax returns and notices of assessment/re-assessments for the past 3 years, 3 most recent paystubs, statements from all of his bank accounts from January 2015 up until the present, statements for all RRSP’s, pensions, term deposit certificates, GICs, stock accounts, and other investments.”

[193] During cross-examination, the Applicant was asked whether she was seeking spousal support when she first retained counsel at separation. She replied, “I don’t know, I was pretty traumatized. There may have been communication between my lawyer and [the Respondent’s], I don’t know.”

[194] No other correspondence predating the application issued in June 2017 was put into evidence.

[195] When asked in cross-examination why she did not advance her claim between March 2016 and June 2017, the Applicant testified “I don’t know. I know I retained [her trial counsel, Mr. Pellman] because [the Respondent] was not responding to [Applicant’s first counsel].” Mr. Pellman was her counsel in 2017 when she started her application.

[196] With respect to spousal support, the Respondent testified that he did not know that the Applicant was claiming spousal support until 2017 when she started her application. He recalled receiving the one letter [Exhibit 1] directly from the Applicant’s counsel on the day she moved out of the house; all other communications went to his counsel.

[197] The Respondent testified further that he recalled that his lawyer simply asked him to collect pay stubs and other income documentation. He delivered this information to his lawyer in early 2016. After that, the Respondent testified that he understood from his lawyer that the Applicant’s counsel had not taken further steps. The Respondent thought at the time that this was a good thing, as it might mean that the Applicant was interested in reconciling.

[198] The parties agreed as fact that the Applicant took $93,280.00 from the parties’ joint line of credit post separation. She testified that most of these funds were taken from the account around the time she moved out of the matrimonial home and moved into her rental accommodation. She did not tell the Respondent she was taking the funds, but he knew she had done so. He did not take steps to get her to return the funds.

Analysis re: Date of Effective Notice

[199] The documentary Exhibits 1-3, on their own, do not amount to notice to the Respondent of the Applicant claiming spousal support. The reference to “the family law issues (custody, support)” refers to the children (i.e. custody of the children) and some type of “support”. When she moved out of the matrimonial home, the Applicant had planned to take all three boys with her. The reference to support, therefore, would logically refer to child support.

[200] The evidence does not support the Applicant’s argument that the Respondent had effective notice of her claim for spousal support at the time of separation. Neither on the basis of her own testimony, nor on that of the Respondent, can I conclude that the parties were concerned with anything other than where their three sons would be living after their mother moved out. The exchanges between counsel were referenced in their brief communications, with no evidence of what, if any, reference was made to spousal support.

[201] As referenced below in my discussion of the parties’ s. 7 claims, the lack of communication between the parties after separation, particularly the Applicant avoiding contact with the Respondent, is consistent with how she behaved with him toward the end of their marriage. There is no dispute that the Applicant funded her moving out from the joint line of credit, which the Respondent did not know about in advance but also did not object to afterward.

[202] Before trial, the parties had agreed that this amount would simply be deducted from her ultimate equalization payment. This supports a finding that the parties both knew that the Applicant was financing her new home set-up with their joint line of credit without communicating with each other directly. That is, she borrowed against their shared assets.

[203] Put another way, although the Respondent could infer that the Applicant needed money when she moved out of the matrimonial home, she did not need to ask him for it. He was content to have her take what she needed from their line of credit, subject to future adjustment.

[204] The Respondent’s acquiescence to the Applicant’s use of joint funds does not constitute effective notice of a spousal support claim. As discussed earlier, there is no presumptive entitlement to spousal support. There was no legal obligation on the Respondent to inquire about or look out for the Applicant’s legal interests.

[205] My conclusion that the Respondent did not have effective notice of a spousal support claim until June 2017 is also consistent with the evidence of his spending behaviour post separation.

[206] Specifically, the Respondent spent significant amounts of money on his three sons after the Applicant moved out. Although I conclude below that these are not allowable as s. 7 expenses, the evidence shows that the Respondent paid for used cars for the older boys, purchased a game system, and continued to enrol them in costly “rep” level sports and other expensive sports training. To the extent that he could afford to do so at all, the Respondent used funds to pay for these expenditures which would otherwise have been allocated to payment of spousal support.

[207] When the Applicant claimed spousal support as part of her application in the summer of 2017, however, the Respondent started paying her monthly amounts shortly thereafter.

[208] These started with a payment of $5,000. I have reviewed the evidence regarding this payment. Based on the timing of this payment and the fact that it was closely followed by interim support payments and then by the order of Seppi J., I find that this payment is properly characterized as spousal support.

[209] I conclude for the foregoing reasons that the Respondent did not have notice of the Applicant’s spousal support claim until she started her application.

Where Delay Due to Trauma

[210] The date of effective notice is generally the commencement date for spousal support. While spousal support may be ordered retroactively, factors such as notice, delay, and misconduct carry more weight in the context of spousal support than in child support.

[211] The Applicant submits that her delay in seeking spousal support in this case is justified in part on the grounds that she was fearful of the Respondent, and that her actions were focused on rebuilding her life after the separation. She relies in particular on two cases: Petrie v. Lindsay, 2019 BCSC 371, and Wilson v. Bedard, 2017 ONSC 4517.

[212] In Petrie, the husband physically and mentally abused and emotionally manipulated the wife consistently. She turned to drugs and alcohol, primarily as a coping mechanism, and became addicted to both at times. She suffered from post-traumatic stress disorder, anxiety and depression, panic attacks, flashback and nightmares. The court awarded spousal support retroactive to the date of separation on the grounds that it was not unreasonable for the wife to delay in claiming spousal support because she was debilitated by the addiction and trauma she had suffered as a result of the husband’s abuse. The court concluded, at para. 111, that “To suggest that she would have the wherewithal or capacity to directly contact him in any way for the express purpose of seeking money from him after separation is unreasonable.”

[213] Further, the husband in that case was under bail conditions and then a peace bond prohibiting him from contacting the wife. The court noted, at para. 112, that if the wife tried to contact the husband directly for the purpose of asking for support, it could be interpreted as an invitation to the husband to breach his bail conditions or peace bond.

[214] The court found it reasonable that the claimant needed legal counsel in order to give the respondent notice of her claim to spousal support. Therefore, the issue was whether she had a reasonable excuse not to seek legal representation sooner in order to put the husband on notice that she was seeking spousal support. The court ultimately found that it was reasonable that the wife, due to trauma and addiction issues, “would have been substantially incapacitated for some time and would have been unable to take the step of seeking legal counsel”: Petrie, at para. 115.

[215] In Wilson, the wife’s delay in seeking spousal support was found to be reasonable on the basis of the significant childcare demands placed upon her after separation. She was tasked with the care of two young children aged three and one, one of whom was recently diagnosed as being on the severe end of the autism spectrum. The court found that she was engaged “day and night” trying to care for her child with autism. In addition, the parties had pursued lengthy periods of marriage counselling in the hope of reconciliation, the wife feared the husband, and she “lacked any kind of personal financial resources to pursue formal process”: at para. 91.

[216] In the present case, I have no difficulty believing the Applicant that she felt intimidated by the Respondent and fearful of him at the time she moved out. Her actions of working with a shelter to plan her move and executing it with careful planning when the Respondent was not home are consistent with her testimony in this regard.

[217] I accept that after she moved out, the Applicant did not want to deal with the Respondent and was concerned about how he might respond to her leaving the marriage.

[218] However, the evidence is that the Respondent’s intimidating behaviours did not continue after the Applicant moved out. The Oldest and Middle Sons chose to stay in the matrimonial home, and the parties began sharing parenting time with the Youngest Son. The Applicant drove regularly to the matrimonial home to pick up the Youngest Son. There is insufficient evidence to support the Applicant’s assertion that she was so fearful of the Respondent that she could not pursue a claim for spousal support.

[219] Furthermore, even assuming that the Applicant was so fearful that she could not reasonably be expected to contact the Respondent for spousal support directly, the Applicant did not have to do so as she had retained counsel. The Applicant’s counsel wrote to the Respondent at the time of separation and signalled an interest in negotiating a separation agreement.

[220] Therefore, I find that the cases of Petrie and Wilson can be distinguished. In Petrie, having found that it was not reasonable to expect the claimant to contact their separated spouse for support directly and that it was reasonable for the claimant to require the assistance of counsel, the court found that the issue then became whether the claimant’s delay in seeking counsel was reasonable. In this case, there was no such delay by the Applicant in seeking counsel. She in fact retained counsel at the time of separation and counsel had contacted the Respondent about negotiating a separation agreement. As I have found above, the Applicant’s counsel did not give the Respondent notice of a claim for spousal support in this initial letter. The parties were focused on their children.

[221] Furthermore, this is not a case like Wilson where the claimant’s child care responsibilities were so significant that they could justify a delay in seeking spousal support. While the Applicant expected the children to live with her, the children were mostly residing with the Respondent. Neither of the parties has submitted that the children had any extraordinary needs that would be particularly time consuming.

[222] On all the evidence, I find that the Respondent did not have effective notice of the Applicant’s claim for support until he received her application. The Applicant’s delay in advancing her spousal support claim is not justified in this case by her fear of the Respondent or focus on other activities immediately post-separation. The evidence demonstrates, to the contrary, that the Applicant had found support and help from a local and was able to retain counsel prior to leaving the matrimonial home.

[223] The Applicant’s claim for retroactive spousal support is dismissed. The appropriate date for commencement of spousal support is July 1, 2017.

Spousal support order:

[224] Giving the required priority to child support during the years in which there remain children of the marriage, the Respondent is ordered to pay the following amounts of spousal support to the Applicant:

From July 1, 2017 to December 31, 2017: $ 1,950 x 6 = $11,700

From January 1, 2018 to January 31, 2018: $1,950 x 1 = $1,950

From February 1, 2018 to April 30, 2018: $1,100 x 3 = $3,300

From May 1, 2018 to August 31, 2018: $1,475 x 4 = $5,900

From September 1, 2018 to December 31, 2018: $1,475 x 4 = $5,900

From January 1, 2019 to February 28, 2019: $1,475 x 2 = $2,950

From March 1, 2019 to April 30, 2019: $1,475 x 2 = $2,950

From May 1, 2019 to August 31, 2019: $1,475 x 4 = $5,900

From September 1, 2019 to May 31, 2020: $1,400 x 9 = $12,600

From June 1, 2020 until April 30, 2021: $2,000 per month

On an ongoing basis after May 1, 2021: $1,740 per month

[225] The Respondent shall be given credit for the following payments to the Applicant:

$5,000 paid in the summer of 2017;

$738.00 on September 1, 2017;

$738.00 on October 1, 2017; and

Court-ordered payments of $1,500 per month beginning November 1, 2017, a period of 31 months, for a total of $46,500.

[226] In total, the Respondent owes the Applicant $53,150 in spousal support from the date of separation to May 31, 2020. After deducting the appropriate credits, the Respondent owes the Applicant an additional amount of $174 in spousal support.

Issue 4: Section 7 claims

[227] Both parties seek an order that the other to contribute to extensive expenditures they incurred after separation relating to their children.

[228] The Respondent claims to have incurred a total of $40,609 in extraordinary expenses since separation. He requests an order that the Applicant contribute her share of these expenses retroactively.

[229] The Applicant seeks reimbursement from the Respondent toward over $10,000 per year in Irish dance costs she claims she spent after separation, particularly in 2016 and 2017. mostly relating to Youngest Son dance lessons, training and elite competition attendance.

[230] In this unusual case, and for the reasons that follow, I decline to order either party to contribute to the expenditures they characterize as “s. 7’s” incurred between separation and the start of trial. The parties are responsible for their own expenditures.

Pre-separation spending patterns re children’s extracurriculars

[231] The evidence is clear that all three sons were engaged in extensive extra-curricular music and athletic activities. During the marriage, each party supported some of the children’s extracurricular activities. The Applicant supported them by assisting with driving and organizing for athletics, and for doing all parenting related to Irish dance for Youngest Son. The Respondent, as soccer player himself, was particularly engaged in coaching the boys’ soccer teams.

[232] In terms of expense sharing during the marriage, the Respondent paid for soccer and other sports for all three children. These expenditures were significant, as the children were enrolled in competitive, “rep” level sports in gymnastics when younger and in soccer from a young age.

[233] By the time of separation, the major extracurricular activity for all the boys was competitive soccer. The Respondent was a soccer player himself, and his own father had played professionally. The Respondent knew what these costs were as he paid them himself, and he fit them into the family budget. He also prepared and filed both parties’ taxes each year, including applying for applicable tax credits based on the children’s athletic activities.

[234] The Applicant paid for the Youngest Son’s Irish dance expenses. She had done Irish dance in her youth, and got Youngest Son started at age 7. With his mother’s support, he was competing at an international level by the age of 10. Mother testified that dance expenditures were significant, requiring extensive training, membership in Irish dance organzations as well as domestic and international travel and registration costs to attend competitions and Irish dance gatherings. When he travelled to international competitions, the Applicant went with him.

[235] During the marriage, the Applicant funded these extensive dance costs, with her own income from part-time jobs and financial help from her mother. She testified that she never told the Respondent the extent of the Irish dance costs. Specifically, she testified that he never asked, and she never told him.

[236] The Applicant testified to the work and the enjoyment involved with her taking Youngest Son on trips to competitions. She testified that Respondent was not supportive of Irish dance and that she did not welcome his interest in joining her and Youngest Son on their trips to the UK and USA for international competitions. The one time he attended with her not long prior to separation, she testified that they argued, and that the Youngest Son’s dance performance suffered due to the stress of his father being in attendance.

[237] Respondent’s testimony corroborated the Applicant’s view that he was not involved in Youngest Son’s Irish dance activities. During his cross-examination, the Respondent acknowledged that he was coaching Youngest Son’s soccer team, and was also “encouraging [Youngest Son] in his fairly new pursuit of dance”. It is not disputed that Youngest Son had started Irish dance, as well as soccer, about 8 years earlier, at the age of 7. In calling it a “fairly new” pursuit, the Respondent’s words and manner of testifying communicated both a dismissive ignorance of, and disrespect for, his Youngest Son’s talent and accomplishments in dance.

[238] For her part, the Applicant was dismissive in her testimony of the time and effort the Respondent invested in all three sons’ soccer playing and skills development. In cross-examination on the issue of the Respondent’s involvement in parenting duties, she was asked to confirm that he coached the children’s soccer teams. She replied, “he was always their soccer coach. That doesn’t mean he was a parent”.

[239] Consistent with their attitudes, the evidence shows that the parties involved themselves primarily with supporting and paying for their children’s activities on which they themselves placed value.

Section 7 expenses Legal Framework:

[240] In awarding s. 7 special and extraordinary expenses, the trial judge first determines each party’s income for child support purposes and determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines. In awarding s. 7 expenses, the court must consider whether the expense is:

1. Necessary “in relation to the child’s best interests”; and

2. Reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.

[241] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 and that the expenses are necessary and reasonable, having regard to the parents’ financial circumstances: see Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.).

[242] Section 7 of the Guidelines requires that the expense be reasonable in relation to the means of the parents and those of the child and to the family's spending pattern prior to the separation. In Correia v. Correia, 2002 MBQB 172, 165 Man. R. (2d) 134, at para. 19, Allen J. summarized a number of factors to be taken into account in determining the reasonableness of a s. 7 expense, namely:

• The combined income of the parties;

• The fact that two households must be maintained;

• The extent of the expense in relation to the parties' combined level of income;

• The debt position of the parties;

• Any prospects for a decline or increase in the parties' means in the near future; and

• Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.

[243] Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount: L.H.M.K. v. B.P.K., 2012 BCSC 435; Ludmer v. Ludmer, 2013 ONSC 784, at para. 195, aff’d 2014 ONCA 827, at para. 39.

[244] There is a significant difference between table child support, which is presumptively payable pursuant to the Guidelines, and s. 7 expenditures.

[245] In contrast to table child support, an award of s. 7 child support is not automatic. An order for such payments involves the exercise of judicial discretion as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009 (Toronto: Irwin Law, 2009) at 227, 231.

Analysis

[246] I have reviewed the parties’ testimony and the documents filed at trial in support of their claims. My difficulties with each are best analyzed under the categories of notice, proof and reasonableness, though the reasons at times overlap and are related.

Lack of Notice

[247] During the marriage, the parties did not discuss these expenses with each other, either before or after they were incurred. As a result, it was evident at trial that neither had an understanding of what the other’s extracurricular expenditures were prior to separation. Each therefore viewed the other’s expenditures after separation as larger than during the marriage. The court was unable, on all the evidence, to determine whether either parent’s perspective was accurate in this regard.

[248] I find on the evidence that on only two occasions post-separation did the parties discuss s. 7 expenditures One was a year or so after separation, when the Applicant asked the Respondent to contribute $2,000 toward the costs of the Youngest Son’s participation in upcoming international Irish dance competition. He said yes, and paid her the requested contribution. This contribution does not form part of either parties’ claim at trial, as it was paid.

[249] The other occasion was in 2016, when Middle Son asked the Respondent to enrol him in an elite football training program, which cost $10,000 or more. The Respondent asked the Applicant to join him one evening to learn about the program before he made a decision. This invitation took place at a time described elsewhere in Respondent’s testimony as a period in which he was hopeful for reconciliation with the Applicant.

[250] The parties agreed that the Applicant encouraged the Respondent to enrol Middle Son. In particular, the Applicant told him that to pay for the football program would be supportive to Middle Son in a manner equivalent to an expenditure the father had made in the past for their Oldest Son – that is, “to be fair to [Middle Son]. The Respondent did not ask the Applicant to contribute to the cost of the program when he sought her opinion. He testified that “I thought she would contribute”, but did not ask her to at that time.

[251] Applicant testified that in 2016 she was setting up her new home and earning $30,000 to the Respondent’s income of over $100,000.

[252] I find on the evidence that the Respondent did not ask the Applicant to contribute to what the parties agreed was an extensive expense. It was reasonable for her, in her circumstances, to assume that he would pay for the program himself, as he gave no indication otherwise.

[253] Further, the evidence is that in 2016, the Applicant could not afford such a contribution. She was living on credit cards, the parties’ line of credit, help from her mother and her own modest employment income.

[254] After separation, the parties continued to incur their respective expenses without any other discussion of contribution from the other.

[255] My first concern with both parties’ s. 7 claims is therefore that neither gave the other notice in a timely way that they were seeking contribution from the other

[256] This is not surprising: on the evidence summarized earlier, it is clear that this family was unusually “siloed” in their practices during the marriage; each ensured the continuance of specific activities without informing the other parent.

[257] The Applicant confirmed in cross-examination that she did not tell the Respondent how much she was spending on dance after the separation. After separation, I find on the Applicant’s evidence that she continued to be the parent paying for Irish dance and that she continued her pre-separation behaviour of not telling the Respondent how much she was spending on dance. I also find that during the marriage, high Irish dance costs were managed within the family’s overall budget whether or not the Applicant shared expenditure details with father.

[258] Similarly, the Respondent did not tell the Applicant details of the soccer and other sport expenses during the marriage, nor did he do so after marriage. He testified that he wanted her to contribute to the elite football program for Middle Son post separation, but did not ask her to do so.

[259] The parties’ claims for contribution run counter to their practices during their marriage. The Applicant seeks contribution from the Respondent for expenses that she ordinarily would have paid during the relationship, and the Respondent similarly claims contributions for expenses he ordinarily paid during the relationship. These expenses were ordinarily paid without notice to the other party and without sharing the information in advance of payment. The parties spending patterns after separation reflect the same pattern of division of expenses that the parties used during the marriage.

[260] Based on this pattern, I find that it was not unreasonable for the parties to continue to operate on a similar basis after the separation. In other words, the parties reasonably assumed that the other party would not request a contribution from them towards an expense that was historically not their responsibility during the marriage. The parties did not have much communication about these expenses during the marriage, and their communication continued in the same way after separation; if anything, it worsened.

[261] In these circumstances, clear notice that a contribution would be sought had to be signalled; it could not be inferred.

Lack of Proof

[262] Second, I have concerns regarding the lack of proof supporting the claims of both parties. Many of the expenses said to have been incurred by the Applicant were claimed to have been paid as cash payments, such as door fees for competitions. The Applicant also admitted that her mother helped her with many Irish dance expenses. Other expenses have no receipts or other proof of payment.

[263] While the Respondent filed more documentary evidence at trial, several claimed expenses lacked adequate proof of payment. Other payments were intermixed, according to his testimony, with funds from other sources. For example, he testified to giving Oldest Son his own RESP funds to pay tuition at Humber. Instead the Oldest Son spent the money on a car. The Respondent did not produce a budget with supporting documentation for either the Oldest Son nor the Middle Son’s post-secondary expenses.

[264] As a result, I have significant concerns about my ability to adequately quantify the expenses claimed by each party under s. 7 of the Guidelines on the record before me. As noted above, the onus is on the party seeking the contribution to prove that the expenses were made as claimed, and then that they fall within s. 7 and are necessary and reasonable. The court is left in the difficult position of trying to assess these claims without adequate proof that the payments were made, by whom, from what funds, or in what amount.

Lack of Reasonableness

[265] Lastly, I find that many of the expenses are simply not reasonable in light of the post-separation reduced means of the parties, specifically the high Irish dance costs incurred by the Applicant and the $10,000 elite football program incurred by the Respondent.

[266] Other expenses cannot reasonably be viewed, by their nature, as s. 7 expenses, such as the PlayStation game system and car repairs included in the Respondent’s claims.

[267] There is no doubt in my mind, having listened closely to the testimony of both parents, that neither wanted their sons’ activities or lifestyle to suffer any more than was economically required after separation. The parties each spent money to maintain their sons’ activities and lifestyles after the separation.

[268] That said, the evidence indicates that each party paid money they could not afford to keep the children in the expensive activities which were important parts of their parenting relationships with the children. While many of these expenses were affordable for the family before separation, regardless of whether the parties shared the details of these expenses with the other, the majority of these expenses were no longer reasonable after separation in the context of a separated family supporting two households.

[269] It was not reasonable for the Applicant to incur more than $20,000 in s. 7 expenses without notifying the Respondent first. When asked in cross-examination to agree that the parties’ separated family could not afford such expenditures, the Applicant stated first, “we are not a family”. When asked to explain, she then replied, “if your child is in the Olympics, you don’t say no”. By this she explained that she felt that the Youngest Son’s ability to dance at a World Championship level meant that there was no option for her but to find a way to pay for the dance. She confirmed that as of the trial, the Youngest Son was no longer involved in dance.

[270] I recognize that it may be disruptive to remove children from activities they have devoted time or energy to: see McCombe v. McCombe, 2014 ONSC 2399, at para. 65. However, in the reduced economic circumstances of both parents’ households after separation, it would have been reasonable to consider lower-cost sports for the children and some reduction in expenditures was required (Watt v. Watt, 2011 ONSC 1279 at paras 45-49. This separated family simply could not afford the significant expenditures each now asks the other to contribute to

Conclusion

[271] In short, neither party wanted to stop the activities their sons seemed to enjoy, even when they could not afford it. Neither party asked the other for contribution after separation or put the other on notice prior to the commencement of the application that they would be seeking post separation sharing of what they now claim as s. 7 costs.

[272] Indeed, if they had done so, the other likely would not have agreed as their separated family could not longer afford such levels of expenditure.

[273] I find on the evidence that each party chose to continue their pre-separation “don’t ask, don’t tell” approach to spending a lot of money out so that the children had the things they wanted – and that the paying parent valued. For the Applicant mother, this meant participation in the Irish dance community for herself and the talented Youngest Son. For the Respondent father, this meant coaching rep soccer while his sons were on the teams; and helping the older two buy used cars they didn’t require, but which they wanted.

[274] The court does not intend to criticize the parents in this case: each was clear on their testimony that their goal post-separation was that their children be happy. Each made that decision in their capacity as a parent in a separated family.

[275] In law, however, for the reasons above, I exercise my discretion to dismiss both parties’ claims. The outcome of so doing is, on all the evidence, fair and reasonable.

[276] To the extent that the Respondent may be viewed as having some arguable s. 7 compensable costs for the three children, such as transit passes or public school fee levies during the school year, I note the following. Specifically, Respondent submitted that he would pay some contribution to the Applicant’s Irish dance costs if those were offset from her contribution to his.

[277] In the alternative, therefore, were the court to be found to have erred in its conclusion on the s. 7 issue, I find on the evidence that such portions of the claims as may arguably be viewed as necessary and reasonable by either party, constitute a “wash”, or full offset (proportionate to each parties’ income), in this case.

[278] Both parties’ claims for s. 7 contributions to date of commencement of trial are dismissed.

Section 7 expenditures incurred for the Youngest Son since trial

[279] From commencement of trial forward, I order as follows regarding s. 7 expenditures for Youngest Son:

(i) The parties are to share s. 7 expenditures for the Youngest son proportionate to their incomes.

(ii) For the period July 10, 2019 to June 30, 2020, the Applicant shall contribute 31% of the cost and the Respondent shall contribute 69% of the cost.

(iii) From July 1, 2020 forward, the parties shall contribute in proportion to their 2019 incomes calculated in accordance with these reasons.

(iv) Unless the parties agree otherwise, the parties’ responsibility to contribute to s. 7 expenditures incurred by the other shall be restricted those expenditures falling within the categories listed in s. 7(1)(c) and (d) of the Guidelines.

[280] My restriction of s. 7 expenditures to the categories above is based on the parents’ trial testimony with respect to their Youngest Son and his interests and needs. The educational expenses may include tutoring for Youngest son.

[281] It is acknowledged that both parents have paid for extensive extracurricular activities for Youngest Son in the past, although they have not agreed on the relative priorities or value of such activities. If they wish to do so going forward, and have the other parent contribute, they must reach agreement. In the absence of agreement, each party shall bear such costs without contribution from the other.

[282] The parties are to give each other timely notice of proposed expenditures, and support any reimbursement requests with proof of payment.

Issue 5: constructive trust claim

[283] Although the matrimonial home is in the Respondent’s name only, the Applicant seeks to share in the post-separation increase in its value. The Applicant submits that the Respondent would be unjustly enriched if he were permitted to retain the benefit of the increased value of the property since separation, that a constructive trust should therefore be imposed on 50% of the property in her favour, and that the present-day value of the property should be used in calculating the equalization payment.

[284] In her pleadings, the Applicant claims an equalization of net family properties pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), but she does not seek an unequal division of property under s. 5(6).

[285] The Applicant’s position that she should share in the present value of the home is based on three assertions: (a) she always believed she was an equal owner of the home; (b) she did work over the years which maintained and improved the house and the garden; and (c) her name was added to the mortgage in 2008.

Legal Framework re: Constructive Trust

[286] The application of the doctrine of unjust enrichment to married spouses was considered by the Court of Appeal for Ontario in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, and more recently by Petersen J. in Botcharova v. Kamstra, 2018 ONSC 7204. A constructive trust will rarely be an appropriate remedy in cases involving married couples: Botcharova, at para. 82.

[287] An express purpose of the equalization regime under the FLA is to address unjust enrichment that would otherwise arise from marriage breakdown: see FLA, s. 5(7); Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 63. In the “vast majority” of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of these equalization provisions: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66; Martin, at para. 64.

[288] Furthermore, the court has jurisdiction under s. 5(6) of the FLA to vary a spouse's share of equalized net family properties on the basis of unconscionability. As Petersen J. noted in Botcharova, this variation will in most cases provide an adequate remedy for any unjust enrichment.

[289] To make out a claim for unjust enrichment, the claimant bears the onus of establishing three elements: (1) an enrichment of the respondent, (2) a corresponding deprivation of the claimant, and (3) the absence of a juristic reason for the enrichment: Kerr, at paras. 30-31; Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at paras. 35 and 37.

[290] A monetary award is generally a sufficient remedy for unjust enrichment and the onus is on the claimant to demonstrate that a monetary remedy would be insufficient: Kerr, at paras. 47, 52. Where the claimant can demonstrate a substantial and direct link between her or his contributions and the acquisition, preservation, maintenance or improvement of the property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in their favour: Kerr, at para. 50.

[291] In the context of married couples, the Court of Appeal in Martin explained that where unjust enrichment as a result of the marriage has been found, the court should then consider whether a monetary award would suffice. If so, the aggrieved party's entitlement under the equalization provisions of the FLA should first be calculated. Where appropriate, s. 5(6) of the FLA, which provides for an unequal division of net family properties where equalization would be unconscionable, should be invoked. The court “[left] for another day the question of what should be done in those rare cases where monetary damages for unjust enrichment arising out of marriage cannot be adequately addressed by the equalization provisions of the FLA”: see Martin, at paras. 66-67.

[292] Therefore, the first question I must decide is whether the Applicant has made out a claim for unjust enrichment and, if so, whether monetary damages are sufficient. This involves consideration of her equalization payment and a possible unequal division of net family properties under s. 5(6) of the FLA.

[293] In setting out the equalization framework, the legislature chose the date of separation as the valuation date. The equalization regime recognizes the equal contributions parties make to a marriage. After the date of separation, this reasoning no longer applies: what happens to the value of an asset after separation is no longer related to the parties’ contributions to the marriage: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 77. However, a market-driven post-separation change in the value of the home could in some cases be a relevant factor in determining whether an equal division of property would be unconscionable under s. 5(6) of the FLA: Serra, at para. 64. An order for an unequal division of net family property is exceptional, however, and may only be made (i) where the circumstances giving rise to the change in value relate (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)); and (ii) where equalizing the net family property would be unconscionable, having regard to those circumstances, taken alone or in conjunction with other factors mentioned in s. 5(6): Serra, at para. 46.

Evidence re constructive trust:

[294] The following facts are not in dispute:

The matrimonial home was purchased in 1999 a few months prior to the parties’ marriage.

The Respondent has been solely on title since that time.

The Respondent paid the downpayment at the time of purchase.

Both parties testified that they did not discuss putting the Applicant on title at the time of purchase, nor any time thereafter.

In 2008 on the advice of their banker, the Applicant was added to the mortgage as a named mortgagor.

The value of the home at the date of separation was agreed to be $410,000, and the value by June 2019 and was $625,000.

The Applicant made no post-separation contributions to the costs or maintenance of the home. Such costs were paid exclusively by Respondent.

[295] For the purpose of this analysis, I accept the Applicant’s summary of the maintenance and renovations discussed by the parties and done in the home during the marriage:

Laminate flooring;

Home Depot kitchen;

Renovated bathroom;

Replaced flooring throughout the house (selected by Applicant, laid by Respondent);

Brick patio in the backyard;

Furnace replaced;

Installed air conditioning;

[296] I also accept the Applicant’s evidence that she did all of the gardening, put in annuals and perennials, and extended the front garden to the sidewalk to deter people from walking on the lawn.

[297] The Applicant conceded in her evidence that she did not discuss the issue of who was on title to the home with the Respondent. She testified that she always assumed that she was an equal owner of the home and trusted the Respondent to manage the finances in their mutual interests.

Findings:

[298] The Applicant’s belief that she was always on title to the matrimonial home as a co-owner was not reasonable. She agrees that it was not discussed with the Respondent at the time of purchase and that he made the down payment as she was still paying off debt prior to marriage. During the marriage, she made no inquiries of the Respondent, nor of the bank at the time she was added to the mortgage, nor at any other time.

[299] I note further that the Applicant does not allege, nor does the evidence support any finding, that the Respondent deceived the Applicant with respect to title of the home or concealed information from her. To the contrary, the Respondent testified to encouraging the Applicant to take over the process of paying household bills at one point during the marriage. The Applicant did not dispute this testimony.

[300] I observe further that although the Applicant clearly relied on and trusted the Respondent to manage the family finances, she herself had at least some experience in business matters prior to marriage. Specifically, she had worked in retail clothing management and had earned a college business certificate.

[301] With respect to the Applicant’s position that being listed as a mortgagor for the last seven years of the marriage entitled her to a constructive trust, counsel filed no authority in support of this proposition. This evidence, at best, supports the Applicant’s evidence that when she signed on to the mortgage as a mortgagor in 2008, she did so on her continuing assumption that the house was equally hers.

[302] I now turn to the contributions the Applicant made to the home during the 16 years of the marriage. Those contributions included some improvements, such as a renovated bathroom and new kitchen from Home Depot, as well as maintenance such as furnace replacement. The Applicant was clearly proud of her work planting and maintaining the garden, which the Respondent did not dispute.

[303] All the Applicant’s contributions were made during the marriage. After separation, she did not do further gardening work or make any other contribution to the home.

Analysis:

[304] Although she has framed her claim in constructive trust, the Applicant is essentially arguing for an unequal division of property. That is, the Applicant is arguing that the application of the net family property regime in the FLA, which is based by statute on the date of the parties’ marriage and separation, leads to a result that unjustly enriches the Respondent. That enrichment is quantifiable and in her submission is equal to half of the post-separation increase in the value of the matrimonial home.

[305] Such an argument is not a true constructive trust argument for a few reasons. First, the Applicant does not allege a unique connection to the property such that a monetary award would be inadequate to recognize her contributions to its increase in value. In fact, she seeks a monetary remedy. The Applicant therefore does not really seek a constructive trust at all; she seeks a monetary payment equal to half of the increased value of the matrimonial home since separation. Further, in her submissions she links quantification of her alleged constructive trust interest to the equalization regime, arguing that the present-day market value of the home should be used in the net family calculation instead of its value at the date of separation.

[306] While a monetary remedy may be an appropriate award for unjust enrichment, in this case the Applicant is clearly using unjust enrichment principles to argue for a different monetary award under the equalization regime rather than seeking a constructive trust over the property. The Applicant relies on the increased value of the property to argue for a different equalization calculation on the basis that an equal division would be unconscionable because it would unjustly enrich the Respondent. This is properly dealt with as a claim for an unequal division of property under s. 5(6).

[307] To be follow the analytical approach set out by the Court of Appeal in Martin, however, I must first assess whether the Applicant has made out a claim for unjust enrichment. If she has done so, I must then determine whether this is one of those “rare cases” where the equalization provisions of the FLA do not adequately address the unjust enrichment.

[308] The Applicant relies on the decision in Kofman v. Melfi, 2018 ONSC 3917, in support of her claim for a constructive trust. In that case, Di Tomaso J. found that the property was in “an extreme state of disrepair” and was unliveable when the parties first purchased it and that the claimant had invested funds and spent “countless hours” maintaining the home and performing considerable work to make it a suitable place to live. Her contributions included major landscaping work, laying gravel, renovating eight rooms, sanding, painting, and finishing work. The claimant paid all of her earned income towards the renovations and the mortgage.

[309] While I accept the Applicant’s evidence that she performed considerable gardening work, this work was done during the marriage. I also note that the Applicant’s submission is that the modest renovations she described were performed by the parties together. While her contributions were likely of some value to the property, I find that this case is distinguishable from Kofman, where considerably more work was done over an extended period of time, taking several months to simply make the house liveable. In that case, the work was done almost entirely by the claimant.

[310] While the Respondent may have benefitted from the Applicant’s contributions to their renovations and from her landscaping work, the Applicant would also have benefitted from her own contributions. These contributions are of the normal sort that one might expect from a couple living and raising a family together. I do not find that there is a corresponding deprivation to the Applicant. Therefore, she has not made out a claim for unjust enrichment.

[311] However, even were I to have found that the Respondent has been unjustly enriched, I find that it is adequately addressed by the application of the equalization provisions under the FLA.

[312] In reaching this conclusion I observe that first, the Applicant will share in the increased value of the home up to the date of separation. Second, a post-separation increase in the value of a spouse’s assets may be considered under s. 5(6) as a reason for granting an unequal division of property. Thus, unjust enrichment flowing from a post-separation increase in value, which is not ordinarily caught by the equalization regime, can be considered under s. 5(6). In other words, the FLA has a means of addressing this sort of unjust enrichment.

[313] The threshold requirement for such a constructive trust remedy is a finding of an “unconscionable” deprivation of one party to the benefit of the other. This is an “exceptionally high” evidentiary threshold: see Serra, at paras. 46-47.

[314] Framed either as a claim for a constructive trust or an unequal division of property, the Applicant’s claim must fail for the following reasons. First, her argument that she should be treated as if she were on title to the home because she really thought she was, cannot assist her. The Applicant filed no authorities in support of this proposition.

[315] Second, the Applicant substantially agrees with the equalization calculation. By statute, she will share equally in the increase in the parties’ net worth over the course of their marriage, including the increase in value of their matrimonial home, up to the date of separation, which is the valuation date chosen by Parliament.

[316] Third, the Applicant’s contributions to the property were all completed prior to separation. She conceded that she has contributed nothing to the cost or maintenance of the home since separation. A constructive trust is only available where the claimant can demonstrate a substantial and direct link between her or his contributions and the acquisition, preservation, maintenance or improvement of the property: Kerr, at para. 50.

[317] Further, none of the Applicant’s contributions to the matrimonial home were beyond the type and nature of maintenance and modest improvement that a couple raising a family together in a home frequently make. These circumstances do not rise to the level of unconscionability required to depart from the regime of equal division under the FLA.

[318] My conclusion is consistent with the Court of Appeal’s observation in Serra that the FLA equalization regime recognizes the equal contributions parties make to a marriage. What happens to the value of an asset after separation is no longer related to the parties’ contributions to the marriage: Serra, at para. 77.

[319] While in the current real estate market the Applicant is the one arguing for a share in a post-separation increase in value, in a different market one could envision a responding party arguing that a post-separation decrease should reduce his or her equalization obligation. The reasoning in Serra, applied in such a case, would benefit the Applicant party by preserving the separation date value.

[320] In other words, in choosing the separation date as the statutory valuation date, the legislature set the date after which asset value changes would not impact family property division calculations. The Applicant has not discharged the significant legal onus of demonstrating unconscionability in the application of the statutory scheme to the parties’ circumstances.

[321] For the foregoing reasons, I conclude that the Applicant has failed to establish a claim for a share in the post-separation increase in value of the matrimonial home either through a constructive trust or by means of an unequal division or property under s. 5(6) of the FLA.

Issue 6: EQUALIZATION calculation

[322] By the time of their final submissions, the parties had reached agreement on all but three values relevant to their equalization calculations. The most significant was which date to use for the relevant value of the matrimonial home. Having rejected the Applicant’s submission that she is entitled to share in the post-separation increase in value of the matrimonial home, I find that the value of the matrimonial home for equalization purposes is the agreed date of separation value of $410,000.

[323] The other two issues requiring a finding of fact were the Applicant’s date of marriage debt and the value of household contents.

The Applicant’s date of marriage debt

[324] The Applicant asks that a figure lower than $10,000 be used for her date of marriage debt based on the parties’ testimony at trial.

[325] The Respondent relies on the Applicant’s date of marriage debt deduction figure of $10,000, which was agreed upon between counsel prior to trial. He denies that the parties retained an unequal amount of their shared home contents after separation.

[326] Regarding the Applicant’s date of marriage debt, in her testimony in chief, the Applicant acknowledged having debts at the time she met the Respondent. She took steps to reduce those debts over time including seeking credit counselling. In cross-examination, she was asked whether she agreed that her date of marriage debt was $10,000. She replied, “I honestly don’t know”.

[327] The Respondent tendered a letter between counsel dated April 8, 2018 in which the Applicant’s counsel agreed to a figure of $10,000 for his client’s date of marriage debt.

[328] In arguing for a lower date of marriage debt, the Applicant’s submissions seek to rely on a concession by the Respondent in his evidence that Applicant’s date of marriage debts were somewhere between 0 and $10,000.

[329] I find on the evidence that the Applicant’s date of marriage debts were $10,000. Neither she nor the Respondent had a clear recollection of, or documents to support, any other figure. This is hardly surprising, as the parties married twenty years before trial.

[330] This court is always appreciative of counsel’s efforts to narrow the issues in dispute before trial, particularly on smaller items such as this. Correspondence put in evidence confirms the Applicant’s agreement in 2018, via counsel, to the figure of $10,000. On that basis alone, this is the figure which should be used. For the court to find otherwise would be to cast unhelpful uncertainty on the evidentiary value of parties’ pretrial agreements as to facts.

[331] For the sake of thoroughness, I note further that this figure is not inconsistent with either the Applicant’s evidence (that she did not know) or the Respondent’s evidence, as he agreed the number could be $10,000.

Value of household contents

[332] The Applicant asks that a larger value be used for the Respondent’s share of the matrimonial home contents. Her evidence was her own testimony. She did not file any list or appraisal of the shared contents retained by each party after separation. She asked the court to ascribe to the Respondent “approximately $10,000” more value for contents than for herself in the parties’ NFP calculation.

[333] The Respondent takes the position that the evidence does not support differing values for each party and that the contents should be ascribed an equal value for both parties in their NFP calculation.

[334] The Applicant’s argument is based on her testimony that she left behind more than half of the shared household furnishings when she moved hastily out of the matrimonial home.

[335] The Applicant testified that when she moved, she took with her items she had brought into the marriage and furnishings given to her during the marriage. Specifically, she testified that she took the piano, the dining room table, the Youngest Son’s bed, and her dresser and clothes.

[336] She testified in some distress that, in particular, she had not been able to take with her, nor to retrieve, personal possessions of significance to her. She testified that these included the following: a Rubbermaid box full of Christmas ornaments; an avocado green sewing machine; crystal trifle/truffle bowl; camping and boy scout gear belonging to her father; and a wine decanter.

[337] The Applicant also testified that in the years since separation she and her counsel have asked the Respondent to return these items to her. He has not done so.

[338] The Applicant also argues that the fact that she had to buy new furnishings should be taken into account in ascribing to her a smaller portion of the value of the matrimonial home household contents.

[339] The Respondent disagreed that he retained more of the value of household contents. He testified that what shared furnishings are in the matrimonial home are second hand, not new, and have little commercial value.

[340] I also note that in addition to the Respondent, the parties’ three sons continued to live in the matrimonial home post separation. As of trial, none of them had lived full time with the Applicant. The bedroom furnishings and other household items used by the children were therefore presumably left in the home as belonging in whole or in part to the children. Neither party addressed nor quantified the value of household items owned by their sons.

[341] I have reviewed the parties’ evidence carefully on this issue. I find that their evidence is insufficient to enable the court to ascribe a value, let alone a differential between values, to the household goods retained by each on separation. Nor does the evidence enable me to distinguish between the items left by the Applicant in the matrimonial home because they belonged to the children who still resided there, from the items owned jointly by the parties and retained by the Respondent.

[342] In conclusion on this point, the Applicant has not met her onus of proving that the Respondent retained a greater value of household goods on separation. The household contents shall therefore be listed as equal on the NFP statement.

[343] The equalization calculation in the Comparison NFP statement at Schedule F of the Respondent’s final submissions includes the values as found by me on the disputed issues. Accordingly, the Respondent shall pay to the Applicant an equalization payment of $192,872.93.

Interest on Applicant’s post-separation use of line of credit

[344] Both parties borrowed funds from their joint line of credit post separation. They agreed that the funds borrowed by the Applicant will be deducted from the equalization payment owing to her. I find on the evidence that the amount she borrowed is $93,280.00.

[345] The parties do not agree, however, on whether and at what rate interest is payable on the amount borrowed. The Applicant has not made any payments on the line of credit for the money borrowed. The Respondent submits that he should be reimbursed for the interest he has paid on the amount she borrowed, at the rate levied per the terms of the line of credit.

[346] As I understand counsel’s submissions, the Applicant argues essentially that requiring her to pay the interest is not fair to her. The reason is that she has not to date received from the Respondent the part of the equalization payment to which he agrees she was entitled. If he had paid her earlier, she could have paid off her post-separation line of credit much earlier and avoided accruing interest. Since the line of credit funds, she borrowed could be seen as an advance on her equalization payment, it should be he, not she, who carries any interest.

[347] Analysis: The Respondent has had the benefit of the equalization payment since separation. The value of the asset in his name, as referenced earlier, has also risen with the real estate market. Whether the Respondent had sold the matrimonial home to pay the Applicant’s equalization payment, or taken out a loan or further mortgage in order to do so, he would have been responsible for any interest owing on the funds borrowed to pay out the Applicant.

[348] With respect to the Respondent’s knowledge of the equalization of net family property which takes place on separation of married spouses, the evidence confirms that the Respondent retained counsel immediately after separation. He had the opportunity to obtain advice as to the obligations at law of each spouse following marital breakdown. Equalization of net family property is a central statutory entitlement at the end of a marriage. It is reasonable to infer that he was made aware of the Applicant’s entitlement as part of the “separation agreement” proposed in her counsel’s correspondence immediately following separation.

[349] In the circumstances of these parties, specifically the benefit to the Respondent of owning the appreciating matrimonial home asset, I consider it fair and just to consider his retention of the Applicant’s equalization payment for five years since separation, without payment of any interest to her for so doing, to be fairly offset by his payment of interest on amounts borrowed by the Applicant from the line of credit post-separation.

[350] For the foregoing reasons I direct that the amount of $93,280.00 shall be deducted, without interest, from the equalization payment owing to her.

Return of Applicant’s personal items

[351] I am, however, prepared to make a finding regarding the Applicant’s personal items left in the home when she moved out. She described those items in her testimony as: a Rubbermaid box full of Christmas ornaments; an avocado-green sewing machine; a crystal trifle/truffle bowl; camping and Boy Scout gear belonging to her father; and a wine decanter. She testified that the Respondent has been asked to return the items but had not yet done so.

[352] In his responding testimony, the Respondent did not dispute the Applicant’s personal ownership of the named items nor the fact that she left them in the home. When asked by his counsel about returning the items, he testified, “yes I am agreeable to returning her stuff”. He confirmed her evidence that he had failed to do so to date.

[353] I therefore order that, as he agreed to do, the Respondent shall within four weeks of the date of this decision, or as otherwise agreed by the parties, return the Applicant’s specified personal items to her directly or via her counsel, as she may determine. Fragile items shall be packaged carefully to avoid breakage.

ORDER:

[354] For the reasons set out above, I make the following orders.

[355] Either party may move for a divorce, in writing, unopposed and without costs, when regular court operations resume.

[356] The parties shall have joint custody of their Youngest Son, born […] 2003.

[357] The parties’ Youngest Son, born […] 2003, shall have a shared residential schedule with both parties.

[358] The Respondent’s Bell pension shall be divided at source in accordance with the pension valuation of John Melvin Norton.

Parties’ income for support purposes

[359] The Applicant’s annual income for support purposes is as follows:

From 2015 until January 2018: $30,000

From February 2018 to December 31, 2019: $54,000

[360] The Respondent’s annual income for child and spousal support purposes is as follows:

2015: $123,377

2016: $136,446

2017: $124,901

2018: $125,235

2019: $122,903

[361] For 2019 and on a go-forward basis, the figure of $14,000 in gross self-employment income, less $4,500 for business expenses, and the difference of $9,500 grossed up, shall be imputed and added to the Respondent’s annual income for support purposes each year. For any year the Respondent reports a gross revenue exceeding $14,000, actual gross business revenue shall be used, grossed-up after deduction of the fixed amount of $4,500 for business expenses.

Child support

[362] For the period December 1, 2015 to May 31, 2020, the Respondent shall pay to the Applicant the sum of $20,383, reflecting net child support owed to her for this period.

[363] From June 1, 2020 until April 30, 2021, the Respondent shall pay to the Applicant set-off child support in the amount of $267 per month, based on the Middle Son’s continued enrollment in his post-secondary program and his continued residence with the Respondent, and on the Youngest Son continuing a shared residence with both parents.

[364] Should the Middle Son cease to reside with the Respondent, withdraw from his college program, or be denied enrollment in the coming academic year, the Respondent shall advise the Applicant within 30 days. Upon any of those events occurring, the Applicant’s support obligation to the Middle Son shall cease.

[365] From May 1, 2021 forward, child support for the Youngest Son only shall be payable between the parties on a set-off basis in accordance with their disclosed incomes, with the Respondent’s income to be calculated as ordered.

[366] Past child support in the amount of $23,371 shall be paid by the Respondent to the Applicant, calculated as follows:

From December 1, 2015 to December 31, 2015: $472 x 1 = $472

From January 1, 2016 to December 31, 2016: $571 x 12 = $6,852

From January 1, 2017 to December 31, 2017: $485 x 12 = $5,820

From January 1, 2018 to January 31, 2018: $1,159 x 1 = $1,159

From February 1, 2018 to April 30, 2018: $720 x 3 = $2,160

From May 1, 2018 to August 31, 2018: $286 x 4 = $1,144

From September 1, 2018 to December 31, 2018: $611 x 4 = $2,444

From January 1, 2019 to February 28, 2019: $592 x 2 = $1,184

From September 1, 2019 to May 31, 2020: $267 x 8 = $2,136

For a total of: $23,371

[367] Past child support shall be payable by the Applicant to the Respondent as follows:

a. From March 1, 2019 to August 31, 2019: $498 x 6 = $2,988

[368] The child support owing by Applicant to Respondent may be set off against the child support amount Respondent owes to the Applicant. The Respondent shall therefore pay to the Applicant the sum of $20,383 in child support, which is the net amount owing to the Applicant up to May 31, 2020.

Spousal Support

[369] As of May 31, 2020, the Respondent owes the Applicant a net amount of $174 in spousal support.

[370] Spousal support is payable by the Respondent as follows:

• From June 1, 2020 until April 30, 2021, the Respondent shall pay to the Applicant spousal support in the amount of $2,000 per month.

• After May 1, 2021, and on an ongoing basis, the Respondent shall pay to the Applicant spousal support in the amount of $1,740 per month.

[371] A support deduction order shall issue accordingly.

[372] Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[373] The Applicant and Respondent shall exchange annual confirmation of income information, including complete copies of their income tax returns with all supporting receipts and schedules, and any requested information which is specified in the Federal Child Support Guidelines. Such exchange to occur in 2020 by July 1^st, and in all subsequent years by June 1^st. These amounts will be used to calculate table offset support for the Youngest Son and the applicable contribution ratio for shared s. 7 expenses for the coming year.

[374] For as long as their Middle and Youngest sons remain eligible, both parties shall enrol and maintain coverage for them on any employment benefit plans available to them. Each party must provide the other, on an annual basis, with details of the coverage and claims and coordination of benefits procedures for their plans.

[375] If the terms of his workplace benefit plan permit it, the Respondent is directed to enrol and maintain coverage for the Applicant while he is paying her spousal support. It is the Respondent’s obligation to obtain information, and to confirm to whether such coverage is available. He is directed to provide it to the Applicant within 30 days of the release of this decision, or such other date as the parties may agree.

[376] The parties are directed to secure their support obligations on a prospective basis by obtaining life insurance as follows:

a) To secure his child and spousal support obligations, the Respondent shall obtain a life insurance policy, with a face amount no less than $200,000, in which the Applicant is named the irrevocable beneficiary. Proof of this policy shall be provided to the Applicant within 60 days.

b) To secure her child support obligations, the Applicant shall obtain a life insurance policy, with a face amount no less than $20,000, in which the children who are entitled to child support are named as the beneficiary or beneficiaries, with the Respondent named as the trustee for the children with respect to life insurance benefits. Proof of this policy shall be provided to the Respondent within 60 days.

c) Either party may apply for a reduction in the specified security upon any variation of his or her support obligations.

Section 7 Expenses:

[377] Both parties’ claims to the date of commencement of trial for reimbursement of s. 7 expenses are dismissed.

[378] With respect to the Youngest Son born […] 2003 only, the court orders as follows regarding s. 7 expenditures:

(i) The parties are to share s. 7 expenditures for the Youngest son proportionate to their incomes.

(ii) For the period July 10, 2019 to June 30, 2020, the Applicant shall contribute 31% of the cost and the Respondent shall contribute 69% of the cost.

(iii) From July 1, 2020 forward, the parties shall contribute in proportion to their incomes calculated in accordance with these reasons.

(iv) Unless the parties agree otherwise, the parties’ responsibility to contribute to s. 7 expenditures incurred by the other shall be restricted to those expenditures falling within the categories listed in s. 7(1)(c) and (d) of the Guidelines.

Property and Equalization

[379] The Applicant’s constructive trust claim is dismissed.

[380] The Respondent shall pay to the Applicant the sum of $192,872.93 to equalize their net family properties. From that amount shall be deducted the sum of $93,280.00 which the Applicant borrowed from the joint line of credit post-separation.

[381] For clarity, the Respondent shall pay to the Applicant a net equalization payment of $99,592.93. This amount to be paid within 60 days unless otherwise agreed by the parties.

[382] This amount is subject to post-judgment interest in accordance with the Courts of Justice Act.

[383] The Respondent shall within 30 days of the date of this decision, or as otherwise agreed, return to the Applicant or to her counsel, as she may direct, her personal items listed above in the section entitled “Issue 6: Equalization Payment”. Fragile items shall be packaged carefully to avoid breakage.

COSTS

[384] Both parties were partially successful. Overall, the Applicant was more successful on the income and support issues, and the Respondent was more successful on the property issues.

[385] They are therefore encouraged to agree on costs. By doing so they will accelerate certainty as to what is payable to whom and when. They will also eliminate the additional time and legal costs associated with preparation of cost submissions.

[386] If they are unable to reach agreement on costs, both parties are to file written submissions to my attention by email to the Brampton SCJ Trial office by July 31, 2020. Parties’ submissions not to exceed four pages, double spaced, exclusive of cost outlines and relevant offers to settle Responding submissions from either party are limited to two pages and due by August 14, 2020.

DIRECTION DURING SUSPENSION OF REGULAR COURT OPERATIONS

[387] The parties have leave during the suspension of regular court operations to serve each other by email without proof of service.

[388] The parties may on consent extend the timelines I have specified for filing of cost submissions. In case of disagreement, the timelines herein shall apply.

[389] Upon the courthouse reopening to the public, each party shall file with the SCJ Brampton Trial Office a copy of all the material he or she delivered electronically during the suspension of regular court operations, with proof of service, and pay the appropriate fees.

“Original signed by”________

McSweeney J.

Released: June 5, 2020

COURT FILE NO.: FS-17-89680

DATE: 2020 06 05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

T.C.M.W., Applicant

• and -

R.K.W., Respondent

REASONS FOR JUDGMENT

McSweeney J.

Released: June 5, 2020