COURT FILE NO.: FS-18-001735

DATE: 20201203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Pamela Ramoutar

Applicant

– and –

Aknath Ramoutar

Respondent

Katherine Robinson, for the Applicant

Adina Schild, for the Respondent

HEARD: August 4, 2020

REASONS FOR DECISION

NISHIKAWA j.

Overview and Procedural Background

1The Respondent, Aknath Ramoutar, brings a motion for summary judgment dismissing the Applicant’s claims for equalization, spousal support, and a freezing of assets.

2In 2018, the Applicant, Pamela Ramoutar, commenced an Application seeking equalization of the parties’ net family property, child support and spousal support. On the Application, Ms. Ramoutar stated that the date of separation was September 1, 2005. She did not seek an extension of the limitation period for equalization.

3At a case conference in November 2018, Gilmore J. granted Ms. Ramoutar leave to bring a motion to amend her Application. Gilmore J. also severed the divorce from the corollary issues and the parties were divorced by order dated March 11, 2019.

4In April 2019, Ms. Ramoutar brought a motion for leave to amend the Application to change the separation date from September 2005 to December 2012. In the alternative, the Applicant sought an order extending the limitation period for equalization. In her endorsement dated April 18, 2019, Kristjanson J. dismissed the Applicant’s motion to change the separation date: Ramoutar v. Ramoutar, 2019 ONSC 2448. Kristjanson J. held that the issue of extending the limitation period ought to be heard after Ms. Ramoutar served a draft Amended Application. The Respondent was granted $7,000 in costs to be paid within 30 days. The Respondent was also granted $1,000 in costs relating to the preparation of an Amended Answer in response to the anticipated Amended Application.

5The Applicant was granted an extension to August 19, 2019 to serve and file her Amended Reply. She has taken no further steps since serving and filing her Amended Reply.

6To date, Ms. Ramoutar has not brought a motion to extend the limitation period. In the meantime, Mr. Ramoutar brought this motion for summary judgment.

Issues

7The issues to be determined in this motion are as follows:

(a) Is there a genuine issue requiring a trial in respect of Ms. Ramoutar’s claim for equalization?

(b) Is there a genuine issue requiring a trial in respect of Ms. Ramoutar’s claim for spousal support?

(c) Is there a genuine issue requiring a trial in respect of the request that Mr. Ramoutar’s assets be frozen?

Factual Background

8The parties were married on July 19, 1980. They have three adult children, who are now 36, 32, and 30 years old.

9Ms. Ramoutar has a high school education and was 20 years old when the parties got married. During the first twenty years of the parties’ marriage, Ms. Ramoutar stayed at home and cared for the children. Mr. Ramoutar has been employed by the same business since 1979, although the ownership and name of the company has changed over time.

10In approximately 1999, Ms. Ramoutar began to work for Primerica Inc. In 2001 and 2002, she obtained licences to sell mutual funds and insurance. In 2005, the parties started an investment business known as Reswealth Financial Services Inc. (“Reswealth”). Both parties were registered as directors of Reswealth.

11On the day before the parties’ separation, Ms. Ramoutar purchased a property at 48 Cavalry Trail (the “Property”) for $428,000. The transfer documents show that an individual by the name of Michael Kistnen had a one percent interest in the Property.

12In May 2007, Ms. Ramoutar incorporated an entity known as Rezwealth Financial Services Inc. (“Rezwealth” as opposed to Reswealth). In addition to Ms. Ramoutar, the parties’ children were listed as the directors of Rezwealth.

13From 2009 to 2014, Ms. Ramoutar became embroiled in regulatory proceedings before the Ontario Securities Commission (“OSC”) in relation to Rezwealth’s business. Rezwealth, Ms. Ramoutar, and her son, Justin, were found to have engaged in acts, practices or courses of conduct relating to securities that they knew or reasonably ought to have known perpetrated a fraud on persons contrary to the Securities Act. Their conduct was found to have resulted in losses of over $2.2 million to investors. In the end, Ms. Ramoutar was ordered to pay an administrative penalty of $250,000 and to disgorge profits of over $547,000, jointly with the parties’ son, Justin, and an additional $547,000, jointly with Rezwealth.

Analysis

The Applicable Legal Principles

14Pursuant to r. 16(1) of the Family Law Rules, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. If there is no genuine issue requiring a trial of a claim or defence, “the court shall make a final order accordingly”: r. 16(6).

15Rule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. Rule 16(4.1) states that the party responding to the motion “may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.”

16The Supreme Court of Canada has held that “summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 5 [Hryniak]. An issue should be resolved on a motion for summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial: Hryniak, at para. 49.

17On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before him or her, without using fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the following powers under rr. 20.04(2.1): (i) weighing the evidence; (ii) evaluating the credibility of a deponent; and (iii) drawing any reasonable inference from the evidence: Hryniak, at para. 66. See also: r. 16(6.1) of the Family Law Rules.

18The court is entitled to assume that the record on a summary judgment motion contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (9 July 2015). See also: Crescent Hotels and Resorts Canada Company v. 2465855 Ontario Inc., 2018 ONSC 5508, at para. 23; aff’d 2019 ONCA 268. It is a “well-established rule that both parties on a summary judgment motion have an obligation to put their best foot forward”: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.

19In Chao v. Chao, 2017 ONCA 701, at paras. 24 and 28, van Rensburg J.A. held that the principles laid out in Hryniak apply to summary judgment motions under the Family Law Rules. Specifically, parties are required to put their “best foot forward” and the motion judge is entitled to assume that the evidence before them is the best evidence available.

20On a motion for summary judgment, the moving party bears the burden of demonstrating a prima facie case that there is no genuine issue requiring a trial. If the burden is met, the onus shifts to the responding party “to set out specific facts that there is a genuine issue that requires a trial.”: Turk v. Turk, 2015 ONSC 5845, at para. 47.

Is There a Genuine Issue Requiring a Trial in Respect of the Claim for Equalization?

21Mr. Ramoutar’s position is that there is no genuine issue requiring a trial on Ms. Ramoutar’s claim for equalization of the parties’ net family property because her claim is statute-barred by the limitation period in s. 7(3) of the Family Law Act. This provision states that an application for equalization “shall not be brought after the earliest of” two years after the day the marriage is terminated by divorce or “six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation[.]”

22Ms. Ramoutar submits that the limitation period ought to be extended and that Mr. Ramoutar owes an equalization payment of $136,588. She argues that further disclosure is necessary, specifically in relation to Mr. Ramoutar’s pension and funds that he held in an investment account with TD Waterhouse.

Should the Limitation Period be Extended?

23There is no dispute that, unless the limitation period is extended, Ms. Ramoutar’s Application is statute-barred by s. 7(3). The parties’ separation date is September 1, 2005. Ms. Ramoutar did not bring the Application until almost 13 years later, in April 2018. The Applicant’s motion to amend the separation date to December 2012 was dismissed by Kristjanson J., who found no basis for her claim that the parties had reconciled or that there was a reasonable prospect of resuming cohabitation between 2005 and 2012.

24Pursuant to s. 2(8) of the Family Law Act, the court may, on motion, extend a time prescribed by the act if it is satisfied that:

(a) There are apparent grounds for relief;

(b) Relief is unavailable because of delay that has been incurred in good faith; and

(c) No person will suffer substantial prejudice by reason of the delay.

25In order to extend the limitation period, all three parts of s. 2(8) must be satisfied.

26Because Mr. Ramoutar brought the summary judgment motion, he bears the initial burden of demonstrating a prima facie case that there is no genuine issue regarding the extension of the limitation period. Once he has met the initial burden, the burden shifts to Ms. Ramoutar to demonstrate that there is a genuine issue requiring a trial as to whether the limitation period should be extended.

Apparent Grounds for Relief

27Under the first part of the test, the party seeking to extend the limitation period must demonstrate “an entitlement to the equalization payment”: Poirier v. Alie, [2007] O.J. No. 3798 (S.C.), at para. 10. The Applicant submits that she need only demonstrate prima facie grounds for relief: Massai v Massai, 2012 ONSC 6467, at para. 13.

28Mr. Ramoutar’s position is that when the parties separated, he understood that they left the marriage on a “roughly equal footing.” The parties jointly owned the matrimonial home and a joint bank account. The parties sold the matrimonial home to the Applicant’s brother in 2007, after their youngest child finished high school. After discharging the mortgage, they divided the proceeds, with the Applicant receiving $97,458 and the Respondent receiving $57,000.

29In addition, Mr. Ramoutar states that he transferred his interest in Reswealth to Ms. Ramoutar for no value.

30Ms. Ramoutar alleges that Mr. Ramoutar has failed to disclose assets, specifically, his employee pension and an investment account with TD Waterhouse. Ms. Ramoutar’s position is that if those assets were included, she would be owed an equalization payment. In support of her position, Ms. Ramoutar has produced a September 2006 pension statement valuing the Respondent’s pension at approximately $51,000. She has also produced a September 2001 statement for a TD Waterhouse account holding approximately $42,000. Ms. Ramoutar’s net family property statement also shows Reswealth, valued at $150,000, as an asset belonging to Mr. Ramoutar. Ms. Ramoutar estimates that she is owed an equalization payment of $136,588 when these assets are included.

31Mr. Ramoutar’s evidence is that there was a pension “closeout” in 2002 when his employer sold its business to another entity. In 2010, the pension was wrapped up and the amount was transferred into a locked-in retirement account (LIRA) at Alterna Savings, as reflected in a declaration of transfer. The amount, $55,959.18, is consistent with the pension value in 2006. He has included the amount in the LIRA account in his financial statements and NFP statement. As a result, I find that Mr. Ramoutar has not failed to disclose a pension, as Ms. Ramoutar alleges.

32In respect of the TD Waterhouse account, Mr. Ramoutar states that the funds were used to support the family when Ms. Ramoutar started working in the financial services field and when they started the Reswealth business. He states that Ms. Ramoutar had signing authority over all of their investment accounts, including the TD Waterhouse account. He has been unable to obtain records relating to the account because the bank does not keep records for such a lengthy period of time. Ms. Ramoutar has not provided further proof of the existence of this account.

Reswealth

33On his net family property statement, Mr. Ramoutar has valued Reswealth at $150,000, split equally between the parties. On her net family property statement, Ms. Ramoutar has valued Reswealth as the Respondent’s asset, with a value of $150,000.

34Neither party has provided any proof of Reswealth’s value or assets. Its registration was cancelled in 2010. At the time, both parties were listed as directors.

35Mr. Ramoutar states that Ms. Ramoutar was the directing mind of Reswealth and that she has all of its documents. As noted above, he states that he transferred his interest in Reswealth to the Applicant when they separated but did not receive any payment in return. Ms. Ramoutar denies this. She states that she incorporated Rezwealth because she was unable to use Reswealth. There are no documents reflecting a transfer.

36Given the absence of any documents regarding Reswealth and its cancellation in 2010, it is unlikely that Reswealth had any value or assets that would be taken into account for equalization.

37Ms. Ramoutar also claims that she did not receive the proceeds of two rental properties that the parties jointly owned and sold before their separation. Mr. Ramoutar’s evidence is that as a joint owner, Ms. Ramoutar’s consent was necessary to sell the properties. He further states that the proceeds were used to pay the mortgage on the matrimonial home and to fund Reswealth. Because the properties were sold during the marriage, they would not be included in an equalization calculation.

38In addition, Mr. Ramoutar alleges that Ms. Ramoutar has failed to include in her net family property statement the value of the Property that she purchased with Michael Kistnen the day before the parties’ separation. The documentary evidence shows that, on the day before the separation, Ms. Ramoutar purchased the Property with Mr. Kistnen. Ms. Ramoutar had a 99 percent interest in the property and Mr. Kistnen had a one percent interest. Ms. Ramoutar claims that she was holding the 99 percent interest in trust for Mr. Kistnen. However, there are no documents to support the existence of a trust. To the contrary, neither Ms. Ramoutar nor Mr. Kistnen were designated as trustees in the land transfer tax statements at the time of the transfer. Ms. Ramoutar subsequently transferred the Property to Mr. Kistnen for $2.00 in March 2010. Mr. Ramoutar’s position is that while he is not seeking equalization, if the Property were included in Ms. Ramoutar’s NFP statement, she would owe him an equalization payment.

39Ms. Ramoutar has failed to provide this court with evidence to show apparent grounds for relief, that is, that she would be entitled to an equalization payment on the basis of the pension or the TD Waterhouse account. There is no basis upon which this court could value Reswealth. In any event, the parties would each have had an equal share in the business. Moreover, she failed to include a substantial asset, the Property, in her net family property statement. Based on the foregoing, I find that there are no apparent grounds for relief.

Delay Incurred in Good Faith

40In El Feky v. Tohamy, 2010 ONCA 647, at para. 34, Rosenberg J.A. explained the “good faith” requirement of s. 2(8)(b) of the Family Law Act as follows:

I believe, to establish good faith, it must be shown that the moving party acted honestly and with no ulterior motive. It does not appear to me that the Legislature… intended that a mere failure to make enquiries should necessarily negate “good faith,” provided that the absence of enquiry does not constitute willful blindness or does not otherwise, in all the circumstances, fall below community expectations.

41In Poirier v. Alie, Parfett J. further stated that a lack of good faith “can be demonstrated by indifference or careless disregard for one’s obligation to act with reasonable dispatch”: at para. 15.

42The Applicant relies on Quackenbush v. Quackenbush, 2013 ONSC 7547, in which MacKinnon J. granted interim spousal support despite the Applicant’s 23-year delay in seeking support. That case, however, dealt only with interim spousal support. Moreover, MacKinnon J. found the Applicant had a permanent disability and was unable to maintain employment. She was also unable to work during the parties’ marriage because she was the caregiver to the parties’ son, who suffered from muscular dystrophy until his death. Because of the lengthy delay, and the fact that the Respondent had restructured his financial affairs, the interim support ordered was less than half the amount that would be mandated by the Spousal Support Advisory Guidelines.

43Ms. Ramoutar’s states that she was unable to pursue her claims for equalization and support for the following reasons:

• Ongoing health issues, including a 1999 diagnosis of Lyme disease;

• Her role as the children’s primary caregiver after the separation;

• The death of her father in 2005 and her mother in 2014;

• The lack of financial support from Mr. Ramoutar leading to her inability to retain counsel; and

• The OSC proceedings against her from 2009 to 2014.

44Ms. Ramoutar has not provided sufficient evidence to support that her health issues precluded her from pursuing her claim. She has provided an October 2019 note from her doctor, Dr. Marcia Joseph, which states that she has been under stress for the last few years and “has a number of medical issues that affect her concentration and energy level.” The note appears to have been provided to help Ms. Ramoutar obtain an extension to prepare her case and provides no specific diagnosis. A letter dated September 2010 from Dr. Gorguy, a psychiatrist, indicates that Ms. Ramoutar was suffering from depression. The letter further states that she failed to attend a follow up appointment.

45Similarly, the alleged lack of financial support from Mr. Ramoutar and the Applicant’s role as the primary caregiver to the children, who were 15, 17 and 21 after the parties separated, do not justify her failure to pursue her claim. She has adduced no evidence to demonstrate that she sought support from the Respondent. If she needed support for herself and/or the children at the time, it would be reasonable to expect that she would have pursued or at least requested it. Yet, she did not bring an application until almost 13 years later.

46Moreover, the evidence is that Ms. Ramoutar left the matrimonial home to live at the Property with Mr. Kistnen while the two younger children continued to live with Mr. Ramoutar in the matrimonial home from the date of separation until 2007. After the matrimonial home was sold in 2007, Ms. Ramoutar received $90,000 of the proceeds but did not use the funds to bring an application for support.

47While Ms. Ramoutar claims that a lack of financial resources precluded her from pursuing her claim, the OSC found that Ms. Ramoutar received over $200,000 from Rezwealth’s account in 2009 alone. In addition, according to her own affidavit, Ms. Ramoutar borrowed over $300,000 from others, including a total of $60,000 from two of the three children, presumably after they were adults, and $250,000 from an ex-fiancé. Ms. Ramoutar has provided no evidence as to what the money was used for. It does not appear to have been used to pay the administrative penalty or disgorgement ordered by the OSC or legal fees of that proceeding, where she was self-represented. It is clear that the funds were not used to retain counsel and pursue a family law application.

48In this case, the six-year limitation period expired in September 2011. The delay is substantial and cannot be sufficiently explained by inadvertence or a mere failure to make inquiries. Rather, the lengthy delay reflects a careless disregard for one’s obligation to act with reasonable dispatch. Ms. Ramoutar’s affidavit implies that at certain times, she made a conscious decision not to deal with her equalization claim so that she could focus on the OSC proceeding. Furthermore, because Ms. Ramoutar had access to significant funds at various times during the relevant period, the delay cannot be attributed to inadequate financial resources to obtain legal advice.

49Moreover, when Ms. Ramoutar brought her Application in 2018, she made no allegation that the parties reconciled or resumed cohabitation after their separation in 2005 and sought no extension of the limitation period. It was only after receiving Mr. Ramoutar’s Answer, which raised the six-year limitation period, that she alleged that the parties had reconciled and that there was a reasonable prospect of cohabitation. Ms. Ramoutar states that neither her counsel at the time nor a subsequent counsel advised her of the consequences of the 2005 separation date. While she blames her previous counsel for her failure to bring a viable claim, Ms. Ramoutar has not produced their files or any other evidence to support her allegations.

50Ms. Ramoutar further states that in 2011 and 2012 she consulted two different duty counsel at the courthouse, neither of whom was able to “give her information about a limitation period for an equalization claim.” She states that they both advised her that there was no need to rush to commence a claim if the parties “had not yet separated with no prospect of reconciliation.” It is unlikely that four different lawyers failed to advise Ms. Ramoutar about the statutory limitation period.

51Even after amending the Application in 2019, Ms. Ramoutar failed to take further steps or to bring a motion to extend the limitation period. Ms. Ramoutar claims that Mr. Ramoutar refused to schedule her motion until she paid the costs of the motion before Kristjanson J. Mr. Ramoutar admits that he did not agree to Ms. Ramoutar’s proposal to pay the costs order at a rate of $50 per month because this meant that it would take 13 years for the costs order to be paid. His alternative plan was rejected by the Applicant. Ms. Ramoutar has made no attempt to pay any amount of the costs order, despite being required to pay within 30 days. Ms. Ramoutar had been granted leave to bring her motion and there was no impediment to her doing so.

52The lengthy delay in bringing the application was more than a mere failure to make inquiries and was therefore not incurred in good faith. Indeed, it lends credence to the Respondent’s position that the parties had resolved the matters between them. If the parties had resolved the financial issues between them, the Applicant’s attempt to pursue equalization and support 13 years latter reflects a lack of good faith.

Lack of Substantial Prejudice

53Mr. Ramoutar states that he has been prejudiced by the delay because he has organized his financial affairs on the understanding that Ms. Ramoutar would not be pursuing an equalization claim against him. See Poirier v. Allie, at para. 28.

54As described above, Mr. Ramoutar’s position is that the parties arranged their financial affairs when they separated in 2005 and sold the matrimonial home in 2007. Ms. Ramoutar received a larger payment from the net proceeds of the sale.

55Mr. Ramoutar further states that given the thirteen years that passed before Ms. Ramoutar brought her application, he has organized his financial affairs on the understanding that she would not be bringing a claim for equalization. In addition, as a result of the passage of time, Mr. Ramoutar will be prejudiced by the inability to obtain documents. Specifically, Mr. Ramoutar has verified that he is no longer able to obtain documents regarding the TD Waterhouse account at issue because the bank does not retain documents for such a lengthy period of time.

56I find that Mr. Ramoutar would suffer substantial prejudice as a result of the delay.

57Accordingly, I find that Mr. Ramoutar has established that there is no genuine issue requiring a trial on the issue of extending the limitation period. Moreover, Ms. Ramoutar has failed to satisfy me, through specific facts, that there is a genuine issue requiring a trial. It is insufficient to argue, as Ms. Ramoutar has, that further disclosure is required. The court is entitled to expect that all evidence that would be adduced at trial would be available for the summary judgment motion. Despite Ms. Ramoutar’s vague allegation of insufficient disclosure, at no time has she brought a motion for disclosure.

58Moreover, I find that it is Ms. Ramoutar who has failed to make full and frank disclosure. She failed to provide an updated financial statement before bringing her motion for leave to amend, as required by the order of Gilmore J. No updated financial statement has been provided to date. In response to this motion, she provided an unsworn and undated net family property statement, which, as noted above, disclosed no value for the Property.

Is there a Genuine Issue Requiring a Trial in Respect of the Claim for Spousal Support?

59Ms. Ramoutar seeks an order for spousal support under s. 15.2(1) of the Divorce Act. The objectives of an order for spousal support include: (a) recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportioning 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) relieving any economic hardship of the spouse arising from the breakdown of the marriage; and (d) in so far as practicable, promoting the economic self-sufficiency of each spouse within a reasonable time period: s. 15.2(6).

60Unlike the Applicant’s claim for equalization, there is no limitation period for seeking spousal support.

61In awarding spousal support, the court shall take into consideration the means, needs and other circumstances of each spouse, including: (a) the length of time the spouses cohabitated; (b) the functions performed by each spouse during cohabitation and (c) any order, agreement or arrangement relating to the support of either spouse: s. 15.2(4). The court must first determine if there is an entitlement to support before turning to the issues of quantum and duration.

62Mr. Ramoutar submits that Ms. Ramoutar’s claim for spousal support raises no genuine issue requiring a trial. His position is that the Applicant’s need for support does not arise from the marriage or its breakdown, but rather, her own troubles with the OSC.

63Ms. Ramoutar’s position is that she is entitled to spousal support on both a compensatory and non-compensatory basis. She alleges that the parties had a lengthy, traditional marriage in which the Respondent was employed throughout and she stayed home to raise the children. Ms. Ramoutar claims that this enabled the family to accumulate assets, including the matrimonial home and two investment properties. She is now 60 years old and relies on the Ontario Disability Support Program (ODSP) for income, as well as support from the parties’ adult children. She owes significant sums to third parties and because of the OSC order.

64In Ryan v. Ryan, 2017 ONSC 1377, at para. 211, Wilson J., drawing on the principles outlined in Fyfe v. Jouppien, 2011 ONSC 5462, as well as Peters v. Peters, 2015 ONSC 4006, summarized the relevant principles in assessing entitlement to support for circumstances arising post-separation as follows:

(a) The question is whether, taking into account all of the circumstances of the particular case, and the objectives underlying a spousal support award it is reasonable on an objective analysis to expect the parties to continue to be responsible for each other in the event of post-separation need, and if so, for how long.

(b) Economic hardship in light of the new circumstances must be in the reasonable contemplation of the parties at the time of the breakdown of the marriage. Marriage is not a lifetime future guarantee for support.

(c) The starting point is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. If there is not, it may be reasonable to expect that the parties will support each other for a reasonable period of time for need arising post-separation.

(d) The passage of time may or may not be an important consideration in assessing entitlement.

(e) Time will be less important if the parties have not made a clean break and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, the conclusion may be that the expectation of mutual support and dependency arising from the marriage relationship has continued.

(f) The presence of ongoing shared responsibility for the raising of children post separation is very relevant to the question of continued mutuality and interdependence.

(g) However, where the parties both take steps post-separation to unravel their interdependencies, effect a clean break, and do not have children in their care, then the objective of promoting self-sufficiency within a reasonable time post separation becomes more important.

(h) If the situation giving rise to need is a medical problem, then the timing of the onset is important. If a disability arises out of a pre-existing known condition that existed during the marriage or at the time of breakdown of the marriage, there would exist a connection between the disability and the marriage or its breakdown.

(i) If the marriage is short-lived, the objective of promoting self-sufficiency will be given greater weight in assessing entitlement to support.

65In Albert v. Albert, 2007 CanLII 29972 (ON SC), [2007] O.J. No. 2964 (S.C.), at para. 112, the wife’s application for spousal support was dismissed because she delayed for 14 years in bringing her application, despite having multiple counsel through the years. Similarly, in Nobrega v. Nobrega, [2007] O.J. No. 1134 (S.C.), at para. 22, the wife’s application was dismissed because she failed to bring it within a reasonable time after the divorce. In both cases, the court found that because of the delay, it was reasonable for the respondents to assume that no claim for support would be made.

66In my view, there is no genuine issue requiring a trial as to the Applicant’s entitlement to spousal support.

67First, Ms. Ramoutar has provided insufficient evidence of her inability to work. As noted above, Ms. Ramoutar’s health concerns are vague and unsubstantiated. As found by the court in Rea v. Rea, 2013 ONSC 7548, at para. 7, only the person who alleges that they are medically unable to work can put forward evidence of their medical condition. “Proof should include the report of a specialist or occupational therapist verifying his or her ailments and inability to work.” That has not been done here. The note from Dr. Joseph contains no diagnosis and does not describe her limitations. The note from Dr. Gorguy was written in 2010.

68Instead, Ms. Ramoutar states in a conclusory manner that the fact that she is receiving ODSP is evidence of her disability. She did not, however, provide her application for ODSP or the medical documents that were used to support it. There is no medical evidence before the court of a continuing disability or health issue that precludes her from working.

69Ms. Ramoutar has also failed to provide evidence as to the onset of her medical condition. The only date provided is her statement that she was diagnosed with Lyme disease in 1999. The illness does not appear to have affected her ability to work, because she was able to carry on the Rezwealth business until 2009. There is no information as to when she was diagnosed with depression, although she claims to have suffered a “mental breakdown” in 2012. There is no apparent connection between her disability and the marriage or its breakdown.

70Second, there is no compensatory basis for spousal support. The evidence is that Ms. Ramoutar was able to become self-sufficient during the parties’ marriage. She pursued training and became licensed to sell mutual funds and insurance. The parties started Reswealth during the marriage. Because Mr. Ramoutar continued to work full time throughout, it appears to have been primarily Ms. Ramoutar’s business. After their separation, she continued the business on her own and with her son. As a result, she did not suffer any economic disadvantages from the marriage or its breakdown, nor were there financial consequences arising from the care of the children.

71Ms. Ramoutar’s financial difficulties did not result from the breakdown of the parties’ marriage in 2005 but, rather, because of the OSC proceedings against her. As a result of the OSC proceedings, Ms. Ramoutar lost her licence and had to close her business. She was also subject to a hefty administrative penalty and disgorgement order.

72In this case, given that Ms. Ramoutar was running her own financial advising business and had purchased a house with a third party, economic hardship was not within the parties’ reasonable contemplation.

73Notably, Ms. Ramoutar’s affidavit states that she did not work during the course of the parties’ 25-year relationship. She fails to acknowledge ever having been employed or having run the Rezwealth business. Ms. Ramoutar mentions the OSC proceeding only to explain why she was unable to pursue her claim for support. However, she does not dispute the Respondent’s evidence that she worked for Primerica or that she ran a financial advising business. Ms. Ramoutar’s failure to disclose basic facts about her work history significantly undermines the claim for support.

74Similarly, Ms. Ramoutar states that the children resided exclusively with her after the separation. However, Ms. Ramoutar does not dispute Mr. Ramoutar’s evidence that she went to live with Mr. Kistnen after the separation or that she was in a relationship with Mr. Kistnen from 2005 to 2010. She does not explain the police reports attached to her affidavit indicating that she attempted to return to the matrimonial home, where the children were living with Mr. Ramoutar.¹

75The passage of time is a significant consideration, given that Ms. Ramoutar sought no support until 13 years after the separation. The parties made a clean break and their relationship post-separation was not characterized by mutuality or interdependence. The parties had separated their financial affairs by selling the matrimonial home and by Mr. Ramoutar transferring his share of the business to Ms. Ramoutar.

76While she claims that she received an unequal distribution of the sale of the matrimonial home because she had been paying the carrying costs, the only evidence of such costs is a demand notice on behalf of TD Canada Trust for $9,890. She denies that the Respondent transferred his interest in Reswealth to her, and values the business at $150,000 on her net family property statement. However, she provided no documents pertaining to Reswealth or supporting the $150,000 valuation.

77In Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074, at para. 76, Lococo J. found that where the wife had been self-sufficient for a number of years after the parties’ separation, her current need for support had nothing to do with the roles adopted by the parties during their marriage.

78In this case as well, Ms. Ramoutar was self-sufficient for a number of years after the parties’ separation and her current need is not related to the roles adopted by the parties during their marriage. Moreover, given the passage of time, it was reasonable for Mr. Ramoutar to understand that no claim for support would be made. Taking into account all of the circumstances of the particular case, and the objectives underlying a spousal support award, it would not be reasonable on an objective analysis to expect the parties to continue to be responsible for each other based on post-separation need.

79Accordingly, the application for spousal support raises no genuine issue requiring a trial.

Child Support

80At the hearing, Ms. Ramoutar withdrew her claim for child support for the children, who are now 36, 32 and 30 years old.

Is There a Genuine Issue Requiring a Trial Freezing of Assets?

81Because I have found that there is no genuine issue requiring a trial, there is no basis for an order freezing the Respondent’s assets.

Summary

82The Respondent has satisfied the evidentiary burden of demonstrating a prima facie case that there is no genuine issue requiring a trial on the issues of equalization and spousal support. The Applicant has failed to set out specific facts to support a genuine issue requiring a trial. The Application is dismissed.

Is the Applicant Entitled to Costs?

83The Respondent seeks costs on a full indemnity basis.

84The Court of Appeal has identified the four fundamental purposes that modern family cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

85The exercise of judicial discretion in awarding costs is guided by Rule 24 of the Family Law Rules, both in terms of a party’s entitlement to an award of costs as well as to the quantum of that award. The considerations in determining the appropriate quantum of a costs award are found in Rule 24(12), which reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) and legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expense properly paid or payable; and

(b) any other relevant matter.

86In assessing the success of a party, the court looks to the positions taken by the parties at trial: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (S.C.).

87Rule 18(14) provides that, unless the court orders otherwise, a party is entitled to costs to the date the offer was served and full recovery of costs from that date subject to certain conditions being met. One of the terms to be met is that the party who made the offer must have obtained an order that is as favourable or more favourable than the offer. To trigger the potential of full recovery costs pursuant to r. 18(14), a party must do as well as or better than all of the terms of an offer (or a severable section of an offer). See Chomos v. Hamilton, 2016 ONSC 6232, at para. 19.

88Rule 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: Chomos v. Hamilton, at para. 43.

89Other than as provided in rr. 24(8) or 18(14), there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para 11.

90The Respondent seeks full indemnity costs of $15,028.64. His partial indemnity costs are $10,618.42. The Applicant did not retain counsel until shortly before the motion. Her costs are $10,755.27 on a full indemnity basis and $5,404.16 on a partial indemnity basis. All amounts include disbursements and HST.

91In my view, there is no basis for full indemnity costs. While I found, in the context of the test for extending the limitation period, that the Applicant failed to demonstrate that the delay was incurred in good faith, this does not meet the high threshold of bad faith or egregious behaviour in the conduct of the proceeding.

92Mr. Ramoutar is entitled to costs on a partial indemnity basis. Based on the issues, complexity and the number of appearances required, I find the amount to be generally proportionate. His counsel’s hourly rate, $375 per hour for a 2016 call, is at the high end. The hourly rate of Applicant’s counsel, $345 for a 2012 call, is lower. Accordingly, I fix the Respondent’s partial indemnity costs of the Application, including disbursements and HST, at $9,500.00.

Conclusion

93Accordingly, the Application is dismissed. The Applicant shall pay the Respondent’s costs of the application in the amount of $9,500.00.

Nishikawa J.

Footnotes

1. 1At the hearing, I asked for clarification of the dates during which the children were living with Mr. Ramoutar after the separation. I received letters from both parties’ counsel that sought to detail further facts regarding the children’s residence after the separation. For the purposes of clarity, my request was for clarification of the dates, and not an invitation to provide unsworn evidence that neither party included in their affidavits. My findings are based solely on the evidentiary record on the motion.