KINGSTON COURT FILE NO.: 220/18

DATE: 20200207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lynne Baribeau

G. Edward Lloyd, for the Applicant

Applicant

• and -

Marc Baribeau

Edward C. Castle, for the Respondent

Respondent

HEARD: October 30, 31, 2019 and January 27 and 28, 2020

REASONS FOR DECISION

SWARTZ, J.

Family history

[1] Lynn Baribeau and Marc Baribeau were married on April 3, 1999.

[2] They separated on October 18, 2017. They were together for 18 1/2 years.

[3] The applicant is employed full-time at a nursing facility and works nights. She earns approximately $56,000 annually. The respondent is a full-time addictions counsellor and earns approximately $95,000 annually. The applicant Lynn Baribeau is 14 years younger than the respondent Marc Baribeau. She is now almost 46 years of age and he is 59 years old.

[4] They have two children. Carolyn was born January 12, 2000 and Natasha was born September 7, 2001. Carolyn attends St. Lawrence College. Natasha is in her last year of high school and has been accepted at Queens. Both girls live with their mother.

[5] Carolyn and Natasha do not have a good relationship with their dad. They have in the past. They do not speak often, rarely contact each other, and in general have very limited interaction. This dates from the separation and continues today.

[6] Their relationship and interaction has been marked by hostility, frustration and anger. They are aligned with her mother and support her in her difficulties with the father. They have made this very clear to the respondent father.

[7] The relationship between Lynn and Marc Baribeau is also marked by hostility and anger. The police have been called. There are allegations of theft of cash and groceries. There are allegations of neglect of parenting. There are allegations of financial deception. There are allegations of email hacking. There are allegations of break and enter of the family home. There are allegations of dishonesty and self-interest.

Court Process, Legal Issues and Positions

[8] The applicant started this court proceeding in May 2018. She claimed a divorce, child and spousal support and custody of the children. She also requested equalization of property, exclusive possession of the matrimonial home, freezing of assets and sale of family property. Costs and interest were also requested along with continuation of medical benefits, life insurance, accounting of chattels removed from the home, appraisal of chattels and disclosure.

[9] The respondent answered the application. He agreed with the request for divorce, equalization of property and sale of property. He disputed the balance of the claims made by the applicant. He also made claims for equalization and sale of property, support for and custody of the children, appointment of the OCL, post separation adjustments to equalization, and proportional sharing of section 7 expenses after reasonable contribution from the children and utilization of the RESP.

Property and Spousal Support

[10] The respondent has consistently stated that he is agreeable to the applicant buying his interest in the home. This is conditional on him obtaining his equity in the home and her assuming the mortgage. The applicant wishes the respondent's equity in the home to be applied against her equalization entitlement. She is prepared to accept payment of any shortfall by way of a pension transfer. The respondent wants the entire equalization payment effected by way of a pension transfer. Essentially, both parties wish to foist on the other by way of court order what they themselves do not wish to experience. They each want their equity in the home and to avoid having their assets substantially tied up in a locked in pension. The applicant wishes to remain in the family home. She does not want to buy out the respondent. She simply wants his equity transferred to her as a credit against her equalization entitlement. The respondent wants his equity in the home, does not want to pay the equalization with those funds and wants his obligation to be discharged by way of a pension transfer only.

[11] The applicant seeks spousal support in the midrange of the SSAGS and asserts that it should be for an indefinite period of time subject to review in the event of a material change in circumstance. She requests spousal support from January 1, 2019 in the amount of $551 per month along with a further $500 in back spousal support for the last five months of 2018.

[12] The respondent asserts that there is no entitlement to spousal support and that he should not have to pay it. He also asserts that he has no ability to pay spousal support.

[13] This was a relationship of over 18 years duration. The applicant was the primary caregiver for the children. She took substantial periods away from employment to care for the children and also agreed to a number of moves of the family to accommodate the respondent’s career. Her career path was interrupted and negatively affected by the marriage and separation. She is now working night shifts in a full-time capacity and while it is full-time work, it is night shifts and a compromise in what she was hoping for herself. It is clear to the court that entitlement has been established and that spousal support is owing by the respondent.

[14] Considering the factors set out in the Family Law Act, R.S.O. 1990, c. F.3, and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), it is clear that the choices made by the parties during the relationship, the roles the parties adopted including those in parenting and the patterns of dependency that were engendered have created a clear entitlement to spousal support by the applicant. The applicant has need and the respondent has an ability to pay. I have reviewed the objectives of support orders under s. 15.2 of the Divorce Act and the factors set out therein, in light of the facts of this case.

[15] This claim is both compensatory and needs based. It is accurate that the applicant has a full-time job but her income level remains vastly different than the respondent and she has only been able to obtain a full-time position by agreeing to take night shifts. This has impacted her life and ability and availability to parent the children. Following the family's move to Kingston, to accommodate the respondent's job loss in the Cobourg area, the applicant has yet to obtain a more reasonable full-time day shift in her field.

[16] The detrimental effects of the marriage and the separation on the applicant are made out in evidence and it is reasonable that spousal support be paid by the respondent subject to a review in the event of a material change in circumstance. The applicant remains in a stressful and difficult footing in her employment while the respondent has obtained a solid full-time position and an income that is close to double the applicant's. When one reviews the circumstances of the parties as a whole, and in particular those listed in detail at s. 33(8) and (9) of the Family Law Act, it is clear that the purposes of a support order will be met with the spousal support order made therein.

[17] The respondent asserts that if entitlement is found by this court, that he has no ability to pay spousal support. He asserts further that the applicant has no need of spousal support. The evidence before the court does not support the respondent's position. He has a substantial income and his financial statement does not support his position that he has no ability to pay support. He has been able to take out two loans for RRSPs since the separation and makes substantial payments toward these each month. He is supporting one person with an income almost double that of the applicant, who is supporting three. In addition, the applicant paid one hundred percent of the mortgage and taxes on the home from late summer of 2018. She did so without spousal support from the respondent. Her financial statement reveals a frugal and careful approach to spending. She and the children have utilized public transit. She does not live lavishly, nor has it been easy to address the needs of everyone in her home.

[18] Furthermore, the respondent received a substantial tax refund in excess of $4,100 in 2017 and in excess of $8,000 in 2018. This is the year following formal separation and would have been the spring prior to the respondent's actual departure from the matrimonial home. Despite receiving in excess of $8,000 in tax refund monies in 2018 respondent paid no spousal support upon his departure from the home in the summer of 2018. It is noteworthy that the respondent withdrew over $10,000 from his RRSP which may have engendered some substantial tax refunds, yet there is no clear evidence as to where these funds are or for whose benefit they were utilized.

[19] It is also concerning to the court that following separation, the parties had three vehicles and yet the applicant found herself without a vehicle. The circumstances under which this occurred are less than clear. What is clear however is that the applicant and the children were left without a vehicle. The respondent had a number of vehicles.

[20] The respondent ought to have paid spousal support from the late summer of 2018. This would have eased the financial situation of the applicant and children. This was his obligation. He did fulfil his obligations to his children in that he paid child support diligently. He did not however fulfil his obligation to pay spousal support. This obligation was engendered directly from the choices the parties made during the marriage and flowed through and followed the applicant negatively into separation.

[21] In the circumstances of this case and based on the evidence before me I find that it is reasonable that spousal support commence January 1, 2019. On balance this will create a more equitable situation for the applicant and serve to ameliorate some of the negative effects of the separation upon her.

[22] In my view, it is not reasonable to thereafter order a reimbursement to her of the respondent's share of the mortgage payments paid. The total amount of the mortgage that she paid was not unreasonable and she had the benefit of residing in that home while the respondent did not. There was no formal claim for occupation rent made by the respondent, but consideration of the benefits to the applicant in remaining in exclusive possession of the home from the summer of 2018 is a factor in this court's decision to order retroactive spousal support and refuse to order reimbursement for mortgage payments made by the applicant. I find that on balance these two orders reasonably address the applicant's needs, the respondent's ability to pay and the combined compensatory and need-based elements of the applicant’s spousal support entitlement.

[23] The applicant continues to suffer the detrimental effects of the parties’ choices made during the marriage and in particular from the role she adopted in parenting the children and as their primary parent for many years. The parties moved on a number of occasions in order to facilitate the respondent's career path. The applicant's evidence is that she was unaware of at least one of the respondent's job changes until she overheard him talking on the phone. There is some dispute between the parties as to why and how the respondent lost his job in the Cobourg area and whether he was fired or chose to leave. In any event, the respondent was able to find work in Kingston, move there on his own and for over one year the applicant was left in the Cobourg area parenting the children and holding down a job. The applicant and children's move to join the respondent in Kingston thereafter necessitated a job loss by the applicant.

[24] This is how she now finds herself working nights.

[25] I did not have substantial submissions on the issue of entitlement from counsel nor were there substantial submissions as to spousal support itself. SSAG calculations were provided by the applicant (attached). I did not receive calculations from the respondent. I reviewed the SSAG calculations and have considered the SSAGs and the Revised User Guide in addressing spousal support. I find that spousal support in the midrange in the circumstances of this case, is reasonable.

[26] The applicant remains with the two children in her care. The oldest is in post secondary education in Kingston and the youngest is finishing her last year high school. Net disposable income noted in the suggested Guidelines at the midrange, produces a reasonable net disposable income for both parties given the number of individuals that have to be supported within their homes. Combined with guideline child support, spousal support in the midrange in the amount of $551 per month is reasonable and equitable in the circumstances.

[27] The respondent is just shy 60 years of age. He is not yet retired but is eligible to do so by his evidence. There is no indication in his evidence that he intends to retire soon, simply that he is able to with full pension. While he may be eligible for retirement, these parents still have a child in high school and two children's post secondary education to consider.

[28] Material changes will occur for this family in the foreseeable future. The oldest may graduate from college and the youngest will make her way through her educational path. The applicant may find herself in a position to earn more income. The respondent may retire. All of these factors might be considered in the future by the parties and a request might be made to vary the terms of the spousal support order herein. That is not to say that this is an exhaustive list of the things that might change in the future. I note these things as they are the most likely to occur. There may be other material changes that may occur to trigger a review of spousal support.

Child Support

[29] The respondent has continued to pay child support and has substantially met his obligations to the children since separation. The applicant claims that child support was not paid for August 2018 and acknowledges a small overpayment by the respondent and requests that this be utilized as a partial credit against the August payment.

[30] The parties have utilized some minimal amounts from the RESP for the benefit of the children and have done so with minimal difficulty. The applicant requests that ownership and management of the RESP be given to the children themselves. The respondent asks that the RESP remain in the joint ownership of the parties and that a maximum of $5,000 annually per child be set. I find this to be the more reasonable request in all the circumstances.

[31] The respondent asks that the RESP be utilized first (each parent to be credited with 50% of the RESP) followed by a reasonable contribution from the children.

[32] The respondent took the position at trial that the conduct of the now adult children post separation ought to be considered and that he ought to be relieved of any further obligation to pay support as a result. If the court does not share this view, he asks that any remaining shortfall would then be proportionately shared between the parents. He acknowledges the baseline child support amount that is to be paid if his position is not accepted by the Court.

[33] The conflict between children and their father is significant. The court, however, is not prepared to have the children pay the price of their parents’ conflict and difficult behaviours. I look significantly to the case of A.C. v. M.Z., 2010 ONSC 6473 at paragraph 127, where Justice Pazaratz notes the "inevitable difficulties which arise when an adult child's entitlement to support is tied to the quality of the relationship with the payor" and "parent-child relationships are very complex with lots of history-just like spousal relationships. We don't require that otherwise dependent spouses "be nice" or get along with payors in order to qualify for support… we have systematically tried to remove "fault" or "conduct" from the equation…"

[34] Counsel referred me to the case of Szitas v. Szitas, 2012 ONSC 1548, wherein Justice Chappel notes at paragraph 34:

In considering the issue of a child's repudiation of the parent-child relationship, either under section 2 of the Act or section 3(2)(b) of the Guidelines, it is important to heed the warning of Pazaratz, J. in the Caterini v. Zaccaria case that the focus is not whether there has simply been a breakdown in the parent-child relationship, an argument, falling out or a drifting apart; the question to be determined is whether there has been a unilateral termination of a relationship by the child. Furthermore the court must inquire into the reasons underlying the child's decision to terminate the relationship the child's rejection of the relationship will only be relevant in the child support analysis if it is egregious in nature and founded on reasons unrelated to the pay or parents conduct.… A person who seeks to avoid or terminate child support on the basis of a child's repudiation of the relationship has the onus of proving this defence. The onus is a high one. As part of this onus, the parent must show that they have made meaningful efforts to maintain a positive relationship with the adult child.

[35] The respondent father has not met the onus in this case. He is not relieved of his obligation to support his children. And while the conduct of the children toward their father cannot be categorized as egregious, it is aggressive and angry as described in evidence by both parents. I would categorize some of their conduct as mean. I refer specifically to the incident wherein one of the girls objected to the father eating from a pot of food prepared by the mother in the family home, following separation stating "you can’t eat that, that is our food". The evidence of the mother when describing this confrontation in the kitchen made reference to phrases such as "we had had enough" and "we were choosing our battles". By "we" the mother meant the children and she.

[36] It was clear in evidence that the children were aligned with their mother and that they were very attuned to and present when the parents fought. The father gave evidence that the applicant mother would only fight with him when the girls were present. This statement of fact in and of itself is concerning but also demonstrates at the same time a lack of insight on the father's part when he indicates that the applicant would only fight when the girls were present without referencing the fact that it was he and she who were together exposing the girls to their conflict in these moments.

[37] This court saw little insight on behalf of either parent as to the effect that their confrontations had on their children. There is evidence that the father's conduct was frustrating for the children and that they, in their position aligned with their mother, took an almost personal affront to these adult issues. His evening visits when the mother was at work to return items to the backyard of the home were not welcomed by the children and may have frightened them. The father's removal of items from the home including removing small tools from one of the daughter’s room along with their impression that he was wrongfully removing documents from their mother are examples of the tension and conflict in the family unit.

[38] It is clear to the court that the mother and the children were angry, as a team, with the father. It is key to the court's decision on this issue that the mother so blithely describes she and the children as "we" when describing the upsetting things the father has done. The mother's obligation to parent her children as they approached or entered adulthood while continuing in a lessening degree, in my view ought to have included shielding them from conflict between she and their father. The mother has taken the opposite approach, in that the evidence demonstrates that as the children became older and as the separation progressed she began to treat them more as friends commiserating with her about her unacceptable marriage rather than as her children gradually approaching adulthood in difficult circumstances.

[39] She seems to have overlooked the fact that while she will eventually obtain a divorce from the respondent father and will be able to remove herself away from him absolutely, the girls have no such thing available to them. The respondent will always be their father. The girls will always know and understand that they have two parents from whom they arise. The applicant mother sadly appears to have overlooked this reality. Furthermore, I do not see in the father's conduct toward the children, evidence that would warrant such disdain by them.

[40] This court will not however visit a penalty on the children because one of their parents has encouraged them to join her in the conflict with the other parent.

[41] In some ways it is not surprising that the girls are protective of their mother given that she has provided most of their primary care during their lifetime. She has also been the primary caregiver since separation. During the relationship the father was gone for significant periods of time. The children have relied on their mother and she has provided steady parenting to them up until the time the marriage began to fall apart. Unfortunately, at that point less steady parenting choices were made which had the effect of drawing the children firmly into the conflict.

Equalization payment and payment method

[42] The most significant difficulty between these parties is the quantification of equalization of property and the manner in which the equalization payment should be effected. The applicant asks for an accounting of post separation payments related to the house. She has remained in sole occupation of the home since July 2018 when the respondent left the home. The children have resided with the applicant since July 2018. I have already decided above that there will be no further accounting for post separation adjustments regarding the matrimonial home in light of the retroactive spousal support order made and my consideration of the totality of the financial situation of the parties following separation.

[43] The applicant asserts that the respondent took substantial items from the basement and garage of the home. She asserts that these items have substantial value. The respondent says that the items are not significantly valuable, that he returned some of them and that some pre-date the marriage. The respondent asserts that he had substantial assets at marriage and that at separation he had little in the way of valuable assets. The respondent provided very little convincing evidence of his date of marriage and date of separation chattels and other items. The applicant provided photographic evidence of her assertions relating to the date of separation assets removed by the respondent. She estimated values based on similar items on Kijiji and by comparison to purchase price of the items.

[44] Neither party called expert evidence to establish the values of their assets or to challenge the assertions of the other. No other witnesses were called except the parties themselves.

[45] The respondent requested at trial that this court order sale of both his and the applicant's chattels. He did not provide evidence or any specificity as to what chattels he was referring to and provided the court with no way to craft such an order or evidence upon which to do so. The respondent took issue with the applicant's attempt to value his assets yet provided little except his own testimony to back up his financial documents.

[46] On balance, this court preferred the evidence of the applicant. The respondent's evidence was unclear and often contradictory. He was at many moments lacking in credibility. He made allegations of criminal theft against the applicant of substantial sums of money in the amount of $17,000 and yet acknowledges that there were no calls to police to report the thefts or timely objections to the alleged activity.

[47] He acknowledged in his testimony that he lied to police relating to the computer incident and made admissions to them that were untrue. He did not however provide a reasonable alternate explanation that was acceptable to the court. His evidence was confusing at best.

[48] He requested substantial marriage date deductions with values that were significant and unproven while at the same time asserted that his separation date values were much reduced and yet again completely unproved.

[49] When challenged as to the photographic evidence of the applicant of separation date assets, his explanations were unconvincing and unclear.

[50] It is undenied that the respondent removed substantial items from the basement and garage of the home. While the applicant's total valuation is high, even a cautious review of her evidence and approach to valuing those assets is preferred to the position of the respondent. There is no satisfactory evidence from the respondent that supports his much reduced separation date values. There is no satisfactory contradictory evidence from the respondent that convinces this Court to totally discount the applicant’s methodology and valuation of the separation date assets. The absence of supporting evidence from the respondent of his own marriage and separation date values did not assist his argument.

[51] The respondent’s assertion that many items were sold, gifted or disposed of is also not supported in evidence.

[52] His assertion that the applicant fraudulently concocted the email which appears to establish (by way of an example) the existence of a boat valued at $4,500 is not credible. He does not provide an alternate reasonable explanation of the purchase, deposit, work, existence or disposal of this boat. His explanation that the landlord/landowner simply took it defies logic.

[53] It is entirely unbelievable that the respondent would have put a deposit down, acquired and worked on a boat that was subsequently seized by a landowner without his consent or objection. That the police were not called or theft reported or some paperwork produced to document the seizure or establish what happened to this boat is perhaps one of the better examples in this trial of why the court prefers the evidence of the applicant.

[54] As noted above, the respondent asserted in evidence further that there were two sums of money stolen from him by the applicant. He alleges that $9,000 was stolen from his car by the applicant. He alleges further that some portion of $8,000 that he left in his room was also stolen by her. He acknowledges that the police were not called. He has no adequate satisfactory explanation as to where the $9,000 in his car came from. His net family property calculation requested that $8,000 be placed on the applicant's side of the ledger because she stole the cash and that he not be credited with it. It is entirely inappropriate given the lack of evidence and credible testimony from the respondent to ask that the applicant have her net family property increased by the alleged stolen cash.

[55] What is clear to the court is that the respondent has acknowledged that he had approximate $17,000 in cash located between his house and car.

[56] The evidence from the parties at the trial confirmed that the respondent took in excess of $8,000 more than the applicant from a joint account. Perhaps this is the $8,000 that was in his room? It is unclear in evidence from the respondent where the $9,000 came from that was apparently stolen from his car. The applicant alleges that there was $9,800 removed from one of the respondent's bank accounts that is unexplained. He denies this.

[57] He asserts rather, that $17,000 was stolen from him. While the court does not accept the assertion that the applicant stole anything from the respondent, the respondent's own testimony confirms that he had $17,000 in cash. The explanation for this is unsatisfactory to the court and his net family property statements will be adjusted in order to acknowledge his testimonial evidence of cash held at separation.

[58] It was difficult for this court to value the various chattels alleged to have been owned by each of the parties at various times. The applicant provided a large book with photographic documents, obtained a written document from a local auctioneer (Mercer) and attempted to perform research of what the market might yield for sale of the various chattels. She did not however have expert or other evidence to assist the court.

[59] The respondent had less evidence. He had no documentary evidence as to his date of marriage assets or the assets that existed at the date of separation. He was unclear in his testimony as to the value of the assets he did have, where they came from and whether they were in existence at the marriage or at separation. He was very clear in his testimony that he received a large volume of tools from his father who died 37 years ago and was firm in his oral testimony that he had in excess of $16,000 (tools, kayak, bikes and other items) at the date of marriage. He did not provide any supporting evidence or provide a credible explanation for why this value was to be relied on. Equally firmly he asserted that he had very little at separation and that the value of most items had declined or that they were gone or had been replaced with other items of small or no value.

[60] An example of this quandary and inconsistency from the respondent is in relation to the values assigned to his tools. The respondent asserts that at the date of marriage he had approximately $4,000 in tools and that substantially, many were received on his father's death some 20 years previously. He indicated that he had upwards of 16 large tool boxes. Clearly these tools held their value in his view. This however was not a consistent position. By the date of separation, the respondent father asserted that he only had $700 in tools, yet he asserted that he had many tools, for almost any mechanical chore that might arise. The applicant’s photos back this up. Clearly the respondent is a skilled, fully equipped handyman.

[61] Interestingly, when asked in cross-examination where the “14 to 16 boxes of tools” were, the respondent replied "for the most part I have them.”

[62] This court is not prepared to accept the position of the respondent regarding his marriage and separation date values without satisfactory evidence and in the face of what appeared to be a self-serving position of inflated values at marriage and then drastically reduced values at separation for many of the same types of items. Whether the exact items that existed at separation also existed at marriage is not the point. There is no doubt that assets held from marriage to separation may deplete in value. The point is that many of the items that the respondent asserted he had at marriage which he valued highly were not consistently valued when one looks at similar items owned at separation. This court prefers the evidence of the applicant as to the items that did exist at separation and while her valuation attempts were imprecise, they were helpful to the court and provided a method by which a fair value could be ascribed to the chattels at separation.

[63] The respondent's own testimony indicates that there was more than $700 in tools that he had at separation. Many of the explanations made by the respondent were simply not credible as to where the assets were, who they went to, and how it was that the court was to accept his evidence as reliable and believable. The respondent presented a one-page handwritten letter from an individual (who was not called to testify) who asserted a $450 price at which he would be prepared to purchase items that were not detailed, out of a garage. This document was completely unhelpful to the court and did not assist the respondent.

[64] The respondent was entitled to challenge the evidence of the applicant. It is equally accurate that her evidence was not precise. I find however that it was a “best efforts” attempt to quantify a very difficult and complicated chattel situation. The Respondent did nothing to assist his own case and took unrealistic and in my view unnecessary challenges to the applicant's evidence in the glaring face of his own lack of attempt to quantify his own financial situation.

[65] Both counsel provided me with significant case briefs. Respondent's counsel urges the case of Menage v. Hedges, 1987 CanLII 5234 (ON SC) upon the court. The respondent's position is that the applicant's valuation of his chattel position at separation of approximately $38,000 is unreasonably high. He asserts that she has inflated the values of the chattels that he has retained and that this court ought to arrive at a fair value and one that is just and equitable. This is the test that we see in the Menage case.

[66] At paragraph 32 of that case I note that “… fair market value be retained as an initial guide in assessing the value of property but that the court retain its freedom to depart from fair market value concepts where this would result in an inequitable valuation. The court could then use the concept of fair value to correct obvious inequities arising out of a servile application of the fair market value approach. I entirely agree with this approach. This does not amount to a restoration of “Palm tree justice” in matrimonial matters but ensures that both parties are treated with equity. Obviously, there would have to be some evidence adduced to convince the presiding judge that inequity or unfairness would result from the strict application of the fair market value approach. Numerous examples come to mind to illustrate how fair value will frequently produce more equitable results. One will suffice: in most marriage breakdowns one party retains the bulk of the furniture while the other party must refurnish his new quarters entirely. To insist on a pure fair market value approach to assess the value of the furniture and household contents of the party left in possession of the matrimonial furniture would produce grossly inequitable consequences because of the limited market for used furniture and because of the very substantial depreciation applied to such furniture.”

[67] I'm not prepared to accept the figure urged upon me by the applicant of some $38,000 for the applicant's chattels at separation. I am however prepared to utilize some approximation of values to arrive at a fair and reasonable result in the circumstances.

[68] The respondent sought an order that all the chattels of both the respondent and the applicant be sold. He asserts that this would be a good remedy and that the proceeds could be divided thereafter. This is not realistic or possible in this case. There was no detailed chattel list accepted or acknowledged between the parties and it is clear in evidence that the respondent had disposed of many of the items following separation.

[69] I find it fair and reasonable to accept the applicant's evidence as a tool to approximate value in order to reach an equitable result, and with consideration of the concerns of the respondent that it may not be as precise as it could be.

[70] I have utilized the photos and the evidence provided and find that at separation, a $20,000 chattel value is appropriately assigned to the respondent. Included in the figure would be boats, trailers, bicycles and a plethora of tools and other equipment.

[71] Attached to these Reasons (as Exhibit 1) is the Court’s Net Family Property calculation. I have marked those numbers that were agreed between the parties and note the numbers decided by this Court. The equalization number owing by the respondent to the applicant is $168,001.58. Given the lack of significant convincing evidence either way, I have assigned each party the same marriage date value of $2,000 for general household items. I find further that a $2,000 value for other items such as kayaks, bikes and trailers is reasonable for the respondent’s marriage date values and have noted his assessment of values he chose for similar type items at the separation date. The applicant himself acknowledges that he had similar items at marriage and I find this figure more reasonable on the limited evidence before me. This Court does not accept that he had over $16,000 in kayaks, bikes and tools at marriage.

Payment method of equalization

[72] The Family Law Act recognizes that marriage is a form of partnership and one of the goals is to provide for the orderly and equitable settlement of the affairs of spouses upon the breakdown of that partnership as well as to provide for other mutual obligations in family relationships including the equitable sharing by parents of responsibility for children.

[73] The big question for these parties is how to effect payment of the equalization obligation owing by the respondent. A division of assets between spouses is to be fair to both of them. This is confirmed in Best v. Best, 1999 CanLII 700 (SCC), [1999] 2 SCR 868.

[74] For these parties their two most significant assets are the home and the respondent’s pension. It is agreed between the parties that each has approximately $71,000 in equity available to them. They each wish to retain their own equity. The applicant wishes to remain in the home thereby holding her equity within the home itself. The respondent wants his equity out of the home to be bought out or to receive it on sale.

[75] Section 9 and 10.1 of the Family Law Act, R.S.O. 1990, c. F.3, set out the options available to satisfy an equalization obligation found by the court.

9 (1) In an application under section 7, the court may order,

(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold.

(2) The court may, at the time of making an order for instalment or delayed payments or on motion at a later time, order that the spouse who has the obligation to make payments shall,

(a) furnish the other spouse with specified financial information, which may include periodic financial statements; and

(b) permit inspections of specified property of the spouse by or on behalf of the other spouse, as the court directs.

(3) If the court is satisfied that there has been a material change in the circumstances of the spouse who has the obligation to make instalment or delayed payments, the court may, on motion, vary the order, but shall not vary the amount to which the court found the spouse to be entitled under this Part.

(4) Subsections (3) and 2 (8) (extension of times) do not permit the postponement of payment beyond the ten-year period mentioned in clause (1) (c).

10.1 (1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 of that Act.

(1.1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pooled Registered Pension Plans Act, 2015 applies is determined in accordance with section 17 of that Act.

(2) The imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 of the Pension Benefits Act with necessary modifications.

(3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.

(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. The nature of the assets available to each spouse at the time of the hearing.

2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.

3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.

4. Any contingent tax liabilities in respect of the lump sum that would be transferred.

5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

[76] While section 10.1 of the Family Law Act provides a tool for satisfying an equalization obligation through pension division, the VanderWal v. VanderWal, 2015 ONSC 384 case confirms that there is no presumption that payment will be made in this way.

[77] Justice Shelston provides a tidy summary of the jurisprudence on this topic in the case of Fortier v. Lauzon, 2017 ONSC 7503. He reviews a number of cases that are helpful to this court. For ease of reference I adopt his summary contained in paragraph 40 of his decision as follows:

[40] Courts have considered various factors when considering whether the equalization payment is to be satisfied by way of a pension transfer:

i. where the employment pension was the most significant asset owned by the parties and it was the only method by which the applicant would realize the equalization payment owed to her, the court ordered a transfer by pension rollover (O’Kane v. O’Kane, 2013 ONSC 1617);

ii. where neither party had much in the way of liquids assets; over half of the wife’s net family property was related to her future pension; the pension was to be locked in for many years and not liquid in either party’s hands; the husband had no pension or provision for retirement savings; and if the pension was not divided at source, the wife would have to deplete almost all her liquid assets to satisfy the equalization payment, the court ordered equalization by way of a pension transfer (Spurgeon v. Spurgeon, 2016 ONSC 14);

iii. where the applicant’s pension constituted a great portion of her net family property, both parties were in their early 40s, and the court was satisfied that each of the parties would be able to meet their needs in retirement; and the equalization payment of $35,660 represented only one quarter of the net proceeds of sale which the wife was to receive upon this matrimonial home being sold, leaving her with over $100,000 to invest in a new home, the court refused to order the equalization satisfied by way of a pension transfer (VanderWal);

iv. where there was a young child residing with the pension holder; the pension transfer would require the non-pension holder to pay an equalization of $55,000 which could significantly impact the type of residence that she could afford; and a cash payment would require the pension holder to provide a small amount to satisfy the equalization and both parties would come out of the relationship at roughly the same amount of cash, placing them in equal liquidity, the court ordered a cash equalization (Jackson v. Mayerle, 2016 ONSC 72); and

v. the pension holder cannot force the other spouse to accept a deferred payment of a share of his pension to ease his own liquidity position in the face of the clear words of section 9(1) of the Family Law Act (Tupholme v. Tupholme, 2013 ONSC 4268).

[78] I reviewed the financial statements of the parties and note that there is very little in the way of other options available for them to effect equalization but for a substantial lump-sum division of the pension. The applicant has taken the position that she wants her equity in the home and wants to remain in the home. This is not unreasonable especially given the fact that the children reside with her. It is however not equitable that the respondent be completely denied his equity in the home. Both parties wish to make use of their equity – the applicant by remaining in the home holding her equity therein, and the respondent wishing to remove his equity and make use of it in a different way.

[79] On balance it is also not equitable to force the applicant to receive one hundred percent of her equalization entitlement by way of a locked-in plan that she cannot easily access for many years. I am conscious also of the fact that the respondent is 14 years older than the applicant and will be in a position to draw on his share of the pension far sooner than the applicant. The applicant on the other hand will have many more years of growth in the pension to more firmly ground her moment of retirement. I find on balance given the financial circumstances of this case that a substantial portion of equalization be satisfied by way of a pension transfer. Given my findings on the amount of equalization it is not possible in any event to equalize hundred percent of the obligation through pension transfer as this would go beyond the 50% rule of available funds from the pension (when the tax gross up is added in at 15% which is the figure agreed between the parties).

[80] Notwithstanding that there may have been a shortfall, in any event I find that it is in this case reasonable for both parties to receive some cash, the applicant in partial satisfaction of her equalization entitlement and the respondent the remaining share of his equity on sale of the home.

[81] In the face of a dispute as to the jointly owned matrimonial home I am unprepared to order transfer of the home as a methodology for effecting an equalization obligation. The jointly owned matrimonial home must be sold and through sale of that property the remaining equalization obligation shall be discharged out of the respondent's equity.

[82] The applicant's remaining equalization entitlement shall be secured and shall form a charge against the respondent's equity. There will be an additional provision pursuant to section 9(1) providing security for the equalization obligation in that, pending the pension transfer, the respondent shall hold in trust for the applicant her $150,000 share of pension entitlement (plus the grossed up amount). I make these particular security provisions in light of the credibility findings in this matter and my concern that matters be concluded between these parties on a clear and uncontroversial basis and in specific contemplation of the various and serious allegations made between these parents which include allegations of fraud and theft.

[83] The respondent will receive a reasonable portion of his equity from the home on sale and the applicant will have a partial cash payment toward her equalization along with the pension transfer.

[84] I am however prepared to delay effect of the listing and sale of the property for 30 days. The parties are free during this period to effect minutes of settlement that may avoid a sale. Should the applicant wish to do so she may, by way of a proposal offer to purchase the respondent's equity in the home, less satisfaction of the remaining equalization obligation noted above and the applicant's assumption of the mortgage.

[85] The parties have agreed on the value of the home and mortgage and I have made findings accordingly which are reflected in the attached NFP calculations. The applicant and respondent made very clear what their goals were during the trial. Should the applicant continue in her wish to retain the home she may make a business decision in that regard to do so. The respondent repeatedly confirmed during the trial that he had no difficulty with the applicant purchasing the property from him. There is now a methodology for doing so should the parties so choose. Should they so choose this will in turn provide a benefit to the children who might continue to reside within the family home. If not, the home will be listed for sale and sold.

Other Issues

[86] I will also include in my decision provisions as to disclosure by the children relating to their post secondary education. There will be an order that the respondent mother is to ensure that both the children provide to both of their parents a detailed list relating to their post secondary education, costs and contribution efforts. This particular issue was discussed with counsel at trial and it was agreed by the applicant that this type order would be reasonable and that the children would comply, with the mother's assistance.

[87] I did not hear substantial submissions with regard to life insurance. The respondent requested that his brother be designated as beneficiary in trust for the children and the applicant with regard to his group policy with Manulife. This did not appear to be in dispute and an order will issue accordingly designating Michael Baribeau as beneficiary in trust for the children and the applicant, of the group policy with Manulife, with such designation to remain for so long as child or spousal support are payable with annual proof of coverage provided upon request.

[88] For all of the above reasons, the following orders shall issue:

Order

1. Neither party shall have custody of either child, namely, Carolyn Baribeau born January 12, 2000 and Natasha Baribeau born September 7, 2001, as both children are now over the age of 18 years.

2. The respondent will pay $1,421.00 per month to the applicant for the support of Carolyn Baribeau born January 12, 2000 and Natasha Baribeau born September 7, 2001 from and including November 1, 2019.

3. The amount of child support may be reviewed in the event of a material change in circumstances of the parties or any one of the children.

4. The respondent shall pay to the applicant the sum of $551.00 per month in spousal support commencing January 1, 2019 for an indefinite period of time. Spousal support may be reviewed in the event of a material change in circumstances.

5. While enrolled in a full time program of education, the respondent mother is to ensure that Carolyn and Natasha each provide to both parents with the following information:

(a) the costs of her post secondary education, including tuition, student fees, books, supplies and any other expense for which contribution may be claimed;

(b) the name of the educational institution and the course she is enrolled in;

(c) her marks at the end of each terms;

(d) any awards, grants or loans received or applications made for bursaries, grants or student loans;

(e) a copy of her Income Tax Return and Notice of Assessment annually on or before May 31^st of each year during which child support may be payable (commencing May 31, 2020); and

(f) copies of job applications and responses received.

6. If Carolyn or Natasha does not provide the information she is required to provide to both parents pursuant to paragraph 4 hereof, or withdraws from full time enrollment in a course of post secondary education, all child support payments and/or contributions to her support shall cease.

7. Both parents shall contribute toward the postsecondary education of their children proportionate to their incomes after allowing for utilization of RESP funds in accordance with this order, and a reasonable contribution from the children, which might arise from student awards, grants, loans or employment income. The parents shall remain joint owners of the RESP account currently held for the benefit of both children. They shall utilize no more than $5,000 per year per child from the RESP toward the child's post secondary education costs. Neither parent will unreasonably withhold consent to reasonable requests from the other parent to utilize the RESP for the benefit of the children. In the event there are funds remaining at the conclusion of either child's post secondary education, disposition and entitlement to remaining proceeds shall be addressed in accordance with the RESP contract terms.

8. The respondent owes an equalization payment to the applicant. That figure is $168,001.58 net of tax. In order to effect payment of the equalization obligation, the respondent shall

(a) transfer to the applicant the sum of $150,000 (plus 15% gross up). These funds shall be transferred from the respondent to a locked in retirement account in the applicant's name chosen by her. To be clear, the Respondent shall partially satisfy the equalization obligation by way of a pension transfer to the applicant of $150,000 which will require an additional agreed-upon “gross up” of 15% tax. The tax gross up is $22,500. This will result in a total pension transfer amount of $172,500.

(b) The remaining equalization obligation of the Respondent of $18,001.58 shall form a charge against his share of the equity in the jointly owned matrimonial home and shall be paid out of his share of the equity upon sale of the home.

9. The matrimonial home shall be listed for sale and sold on the open market and the proceeds divided between the parties equally after discharge of the mortgage, taxes and closing costs. Out of the respondent's resulting equity shall be discharged his remaining obligation to the applicant in fulfilment of his equalization obligation noted above in the amount of $18,001.58.

10. Pending pension division, the respondent shall hold the applicant's entitlement to a division of his pension in trust for her in the amount noted herein of $172,500.

11. The terms of this order relating to listing and sale of the matrimonial home shall not take effect earlier than 30 days from the date of this order.

12. Any mathematical, calculation or grammatical errors may be returned to me within 7 days by counsel, as many of the NFP numbers were on consent and not substantially addressed at trial.

13. The parties and the children shall each provide the other with his or her email and home address and shall ensure that the others have such information at all times while the respondent is obligated to pay child support for Carolyn and/or Natasha.

14. The respondent shall maintain benefit coverage for the children through his employment benefit plan so long as such coverage remains available to him through his employment and so long as the children remain eligible for coverage and for the applicant for so long as such coverage remains available to him for so long as the applicant is entitled to spousal support.

15. The respondent shall designate his brother, Michael Baribeau, as the beneficiary in trust for the children and the applicant of his group life insurance policy with Manulife and will maintain such designation so long as he is required to pay child support or spousal support after which he may deal with the policy as he wishes. The respondent shall provide proof of coverage once each year if so requested by the applicant.

16. There shall be no order as to the guitar(s) allegedly owned by the paternal grandmother who is not a party to this action.

17. The divorce shall be severed and is to proceed uncontested on the filing of the Affidavit of Divorce materials to be completed within 30 days.

18. On May 15, 2021, and on May 15^th each year thereafter for so however long the respondent is obliged to pay child/spousal support to the applicant, the parties shall exchange their respective Income Tax Returns and Notices of Assessment (and which shall include foreign Income Tax Returns) for the preceding calendar year. Any change to child support shall be effective June 1 of the year of exchange starting in June of 2021.

19. All support payments under this Order, unless the Support Order is withdrawn from the Office of the Director of the Family Responsibility Office, shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

20. This Order bears post-judgment interest at the rate of 3% per annum effective from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of the default.

Madam Justice Deborah Swartz

Released: February 7, 2020

KINGSTON COURT FILE NO.: 220/18

DATE: 20200207

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Lynne Baribeau

Applicant

– and –

Marc Baribeau

Respondent

REASONS FOR DECISION

Swartz J.

Released: February 7, 2020