Court File and Parties

COURT FILE NO.: FC-18-876 DATE: 2021/03/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Amal Shafey, Applicant – and – Naiim Shafey, Respondent

COUNSEL: JJ Mackenzie, for the Applicant David Howard, for the Respondent

HEARD: December 7, 8, 9, 10 and 11, 2020, January 19 and 20, 2021

Reasons for Judgment

Shelston, J.

[1] These parties lived together from July 1976 to September 2018, a period of over 42 years. By the time the trial concluded in January 2021, the applicant was 68 years of age and the respondent 77 years of age. The parties were able to resolve the issue of the equalization of the net family property. The issues for trial are as follows:

a. Divorce order. b. Respondent’s claim for spousal support commencing October 1, 2018. c. Costs.

Divorce Order

[2] The parties have been living separate and apart since February 17, 2018, and there is no chance of reconciliation. I grant an order of divorce.

Spousal Support

Position of the Respondent

[3] The respondent seeks spousal support commencing October 1, 2018, on non-compensatory basis. The respondent submits that he has such an entitlement based on the length of the cohabitation, the reduction in his standard of living, the economic hardship and because of his health and disability.

[4] Further, the respondent submits that he is entitled to the mid range spousal support because of his age, his declining health, his compelling needs, his limited income and capacity to earn more income, the applicant’s ability to pay and the property award is insufficient to meet the respondent’s anticipated expenses requiring him to deplete assets.

[5] Finally, the respondent submits that support would end on the retirement of the applicant or the death of either party.

Position of the Applicant

[6] The applicant denies that the respondent has any entitlement to spousal support. She submits that there has been no mutual reliance between the parties since 1998 when the parties started to act financially independent. She submits that since 2000 the parties have been roommates and have lived separate personal and financial lives.

[7] Further, the applicant submits that the large property settlement results in the respondent having approximately $1 million with no debt that will allow him to be economically self-sufficient based on interest income generated from his assets.

[8] In the alternative, if the respondent is entitled to non-compensatory spousal support, the applicant submits that it should be below the low end of the Spousal Support Advisory Guidelines because of the length of time that the parties have been financially separate and the significant assets currently owned by the respondent.

Legislative and Jurisprudential Framework

[9] Section 15.2(1) of the Divorce Act states:

[a] A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sums and periodic sums, as the court thinks reasonable for the support of the other spouse.

[10] Section 15.2(4) states that a court, in making an order under subsection (1) or an interim order under subsection (2), shall take into consideration the condition, means, needs, and other circumstances of each spouse and, more specifically:

a. the length of time the spouses cohabited. b. the functions performed by each spouse during cohabitation, and c. any order, agreement or arrangement relating to support of either spouse

[11] Section 15.2(6), states that an order under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage. c. relieve any economic hardship of the spouses arising from the breakdown of the marriage. d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[12] The Supreme Court of Canada in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, stated at paras. 35-36:

35. Moge, supra, sets out the method to be followed in determining a support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of many unique marital relationships.

36. Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, such factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse … The court will consider need and standard of living as the primary criteria together with the ability to pay of the other party” … There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown

[13] In Fyfe v. Jouppien, 2011 ONSC 5462, (citations omitted) Chappel, J. at para. 48, provided an excellent summary of the fundamental principles set out in Bracklow on the issue of non-compensatory support:

a. The presumption in marriage is that spouses owe each other a mutual duty of support. The court emphasized, however, that this premise of mutual support is rebuttable; parties to a marriage may alter this presumption, either through explicit contracting or “through unequivocal structuring of their daily affairs, to show disavowal of financial interweaving.” b. When a marriage breaks down, the presumption of mutual support no longer applies. However, there is no “judicially created statute of limitations on marriage.” McLachlin, J. emphasized that “marriage…is a serious commitment, not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates.” c. Section 15.2(6)(c) of the Divorce Act broadens the right to spousal support beyond situations where a party has suffered losses or disadvantages that are causally connected to the marriage, and recognizes that entitlement may exist where the breakdown of the marriage in itself has caused economic hardship. In discussing this issue, the court clarified that this provision encompasses situations where “a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.” d. Marriage does not in and of itself automatically entitle a spouse to support. “To hold otherwise would swing the pendulum too far back and completely ignore the independent, clean-break model of marriage.” [24] The court stressed that it is not the bare fact of marriage so much as “the relationship that is established and the expectations that may reasonably flow from it [emphasis added] that give rise to the obligation of support under the statutes.” e. Contract and compensation are not the only sources of a spousal support obligation. “The obligation may alternatively arise out of the marriage relationship itself.” [26] However, the court added that where a spouse achieves economic self sufficiency on the basis of his or her own efforts, or by means of a compensatory support order, “the obligation founded on the marriage relationship itself lies dormant.” f. Where need is established that is not based on compensatory or contractual grounds, “the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.” g. The court did not specifically elaborate on the “negating factors” that would preclude a finding of spousal support entitlement in non-compensatory cases, or conversely on “the appropriate circumstances” that would give rise to a finding of entitlement. However, in discussing the issue of non-compensatory support in the context of the facts in Bracklow, the court emphasized the importance of analyzing the nature of the parties’ relationship during the marriage, and in particular to determine whether there was any evidence as of the separation date to rebut the presumption of mutuality and interdependence in the parties’ relationship. The court emphasized the importance of starting this analysis using the correct judicial lens, with the presumption of interdependence between the parties. McLachlin, J. noted that although the Bracklows were relatively financially independent at the outset of their marriage, by the end of the marriage they had established an interdependent relationship. It was on this basis that the court determined that Mrs. Bracklow was in state of economic hardship resulting from the breakdown of the marriage as contemplated by section 15.2(6)(c) of the Divorce Act. h. It follows from this reasoning that if there was evidence that the parties’ relationship was not characterized by interdependence and mutual reliance during the period leading to the marriage breakdown, this would be a relevant factor that could lead the court to conclude that the spouse claiming support did not suffer economic hardship as a result of the marriage breakdown. i. In determining the issue of entitlement, the court emphasized the point established in Moge that all of the objectives set out in section 15.2(6) must be considered, with no one objective being paramount. Therefore, the objective of promoting self sufficiency with a reasonable period of time is always a consideration. j. In cases involving spouses who become disabled toward the end of the marriage, where no compensatory or contractual claim for support exists, it may be unfair to the other spouse to order support on an indefinite basis. The court left open the possibility that spousal support could be time limited, even if the disabled spouse will not be able to achieve self sufficiency. It should be noted that on the re-hearing of Bracklow, [28] the court ordered five years time limited support despite the fact that the wife would never be able to support herself adequately on her own.

[14] In Gray v. Gray, 2014 ONCA 659 the Court of Appeal addressed the issue of economic hardship and the standard of living that existed at the date of separation:

27. One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses.

[15] In Fisher v. Fisher, 2008 ONCA 11, the Court of Appeal, in dealing with self-sufficiency, stated, at para. 53:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.

[16] In the Spousal Support Advisory Guidelines: The Revised Users Guide ”, Rogerson and Thompson, 2016, Chapter 3, page 10:

Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the martial standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation, summed up in the phase “merger over time”.

Common Markers of non-compensatory claims include: the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant.

Factual Findings

[17] The respondent was born in Egypt and is 77 years of age. He has a bachelor’s degree in engineering, a Masters’ degree in aeronautical engineering and a PhD in aeronautical engineering. From 1974 to 1992, he worked with various employers such as:

a. From 1974 to 1975, the respondent worked at the University of Pittsburgh. b. 1975 to 1983 with Dominion Bridge in Montréal, Québec and later Ottawa, Ontario. c. 1984, self employed. d. 1985 to 1992, Leigh Instruments in Carleton Place, Ontario e. 1990 to May 1992, self employed.

[18] The applicant was born in Egypt, is 68 years of age and obtained a bachelor of agricultural engineering. In July 1976, the applicant emigrated to Montréal to live with the respondent.

[19] The parties’ first child was born in December 1977. In 1977, the parties moved to Ottawa, Ontario as the respondent’s job was transferred to that location. The second child was born in 1980 while the third child was born in 1983. The applicant was the primary caregiver and a stay-at-home mom. The parties had a very traditional marriage in the early years.

[20] In 1984, the respondent suffered from depression requiring hospitalization. At the time, the parties agreed that the applicant should enter the workforce to provide another source of income. This was a significant change in the marriage.

[21] Starting in January 1985, the respondent found employment while the applicant returned to the workforce and pursued upgrading her education. The applicant’s educational and work history is as follows:

a. January 1985 to December 1986, in home daycare. b. January 1987 to July 1987 clerical course through the Federal Government. c. September 1987 to December 1987 working for various agencies in clerical jobs. d. January 1988 to June 1989 Supply and Services Canada. e. September 1990 Algonquin College computer programming co-op f. April 1991 to date with CRA.

[22] In January 1988, the respondent was advised by his doctor that he had suffered a heart attack in December 1987. He stayed home for two months and was depressed requiring medication to address that issue.

[23] In 1989, the applicant started a two-year program at Algonquin College in computer programming. The first year was in class learning while the second year was a job placement. The applicant’s placement was with the Canada Revenue Agency (“CRA”).

[24] On October 10, 1990, the respondent suffered his second heart attack. On May 1, 1991 doctors performed a bypass to address his heart issues.

[25] In 1991, the children were 13, 10 and seven years of age. As the respondent was self-employed working out of his home, he took care of the children in the morning and during the day before and after school.

[26] In 1991, the applicant started to work full time with CRA. By May 1, 1992, the respondent could no longer work and started to receive disability benefits through a private insurer as well as the Canada Pension Plan (“CPP”). The respondent never returned to work after that date.

[27] Despite working full time since 1991, the applicant continued to be responsible to perform most of the domestic functions such as cleaning, cooking and purchasing the food as she had done before she worked.

Parties’ Financial Arrangements

[28] Starting in 1992 onwards, the parties received income from the respondent’s disability insurers, the applicant’s employment income as well as the payments from the disability insurers for each dependent child.

[29] In 1994, the parties sold their first home and with the proceeds of sale purchased a second home. The parties were able to pay off the $60,000 mortgage within four years.

[30] Up to December 1997, the parties contributed to a joint account that paid the mortgage, municipal taxes, utilities, and food expenses. Anything extra was placed into a savings account. That joint contribution changed in January 1998. The parties argued over allegations by the respondent that his brother-in-law (the applicant’s brother) had misappropriated funds. The contribution of all funds into a joint account ended. The parties agreed that each would contribute a certain amount into the joint account to pay for the specific expenses but that each party would have their own separate bank accounts. Further, each of them bought their food separately but it was paid out of the joint account. This lasted until May 2014.

[31] The parties’ relationship worsened. After 1998, the respondent ceased to contribute to the applicant’s spousal RRSP and the parties ceased all sexual relations.

[32] In November 1999, the respondent left the matrimonial home at the request of the applicant and rented an apartment. During this period of time, the applicant paid his monthly rent of $800 a month while the respondent gave the applicant the $175 per child per month received from CPP related to his disability. He paid no child or spousal support.

[33] Unbeknownst to the applicant, in either 1999 or 2000, the respondent terminated the joint tenancy of the matrimonial home when the respondent transferred his interest in the matrimonial home to himself. The respondent did not advise the applicant of this severance until March 2018, after separation.

[34] When the parties resumed living together in October 2000, the parties agreed that going forward they would have their own separate bank accounts, separate investments and they would contribute into a joint account for household expenses, food and the children’s postsecondary educational expenses.

[35] I find that each contributed approximately $1500 per month starting in 2000 into the joint account. The respondent indicated that they were contributing $3000 each but I accept the applicant’s evidence that she earned $38,000 in 1998 and $48,000 in 1999 and that a contribution of $3000 per month was not possible based on her income.

[36] I accept the applicant’s evidence that when Mona left the matrimonial home in 2004 after marrying, that the parties started to contribute $1000 a month towards the joint expenses. I accept the applicant’s evidence because she was able to connect the payment of $1000 per month to a specific event while the respondent’s evidence was nonspecific other than the amounts varied over time.

[37] By September 2008, all three children had moved out of the matrimonial home. The parties would visit the children separately and never together. Further, the applicant would cook for herself and the parties never ate any meals together. The applicant continued to be responsible for most of the domestic functions including cleaning all of the house except the respondent’s bedroom and office.

[38] By September 2008, the applicant proposed to the respondent that they sign a marriage contract where the parties would waive any entitlement to spousal support or any equalization of the net family property. The applicant testified that she was pursuing, with the assistance of a lawyer, a contract that the parties had previously agreed to in 1999. In 1999, two friends of the parties had prepared a handwritten agreement where there would be no support, no division of property and that the house would be shared equally. The goal of the agreement was that they would still live together but not divorce. It was never signed. When the marriage contract was presented to the respondent, he refused to sign.

[39] In January 2009, upon attaining 65 years of age, the respondent stopped receiving the CPP disability benefits which were replaced with the CPP retirement benefits and Old Age Security (“OAS”) benefits. Despite the change, there was no change in the contribution to the joint account for the specific expenses by the parties.

[40] In 2010, the respondent was diagnosed with cancer. The applicant decided not to pursue the marriage contract issue. In December 2010, the respondent planned to go to Cuba for a vacation. The applicant decided to join the respondent on vacation but each paid for their own ticket and stayed in separate rooms.

[41] In 2010-2011, the applicant received a retroactive payment from her employer related to her severance pay. The applicant spent approximately $80,000 of her severance pay on upgrading the interior of the matrimonial home including hardwood floors, granite countertops, new kitchen cabinets, and new appliances to name a few of the upgrades. The respondent made no contribution to these expenses.

[42] In December 2012, the applicant was diagnosed with breast cancer and underwent surgical intervention, radiation and has been cancer free since 2018.

[43] In January 2014, the respondent ceased receiving the private disability payments upon attaining 70 years of age. As a result of a reduction in his income, the parties entered into negotiations about the contribution to the joint expenses.

[44] On May 13, 2014, the respondent sent the applicant an email entitled: House Budget-Corrections-Clarifications. In that document the respondent stated the following:

Please correct the top sentence in my last email to:

for the last three years we have been contributing $1000 each per month for the entire house budget. We have managed the entire house budget (Utilities, Property taxes $6000., two cars+ Home insurances+ Groceries for both of us+ repairs, even dining out with friends, i.e. everything except personal grooming items). We were saving about $1000 per year until we bought the Furnace and Air conditioner ($216.17/month).

The new arrangement calls for paying the property taxes separately but equal responsibility when it comes plus each pay for his own grocery.

Here is the budget analysis,

Home Insurance = $98 Hydro = $83 Cable = $88 Water = $42 Sears = $216 Total = $527

I suggest only $300 each since each of us will pay another $250 per month for taxes that leaves only $450/month each for Auto insurance ($50.each) plus food and other personal expenses,

Any major house repairs agreed-upon, we pay for it 50% each, small repairs are paid directly by the joint account

[45] The parties agreed that starting in May 2014, that each would contribute $300 a month for the house expenses, each would buy and pay for their own food and that they would equally share the annual municipal tax bill. The total contribution of each party including the tax bill was approximately $508 per month. This lasted until September 2018 when the applicant left the matrimonial home and the respondent purchased her interest.

Separation

[46] The parties agree that the date of separation was February 17, 2018.

[47] In the postseparation period, the parties exchanged emails. On March 4, 2018, the respondent sent the applicant an email entitled: Time of Separation Again. In that email, the respondent confirmed that the parties were contributing $1000 a month each to the joint account but that changed in June 2014 to $300 per month when they agreed to each purchase their own food.

[48] In that same email, the respondent stated that he lost $4000 yearly tax-free from GIS and another $1000 yearly refund from the government of Ontario and the GST rebate because the applicant insisted on writing “MARRIED” on their tax forms. He indicated that he lost $25,000 tax-free as a result of her decision.

[49] On March 9, 2018, the respondent sent the applicant an email entitled: the House Registration where, for the first time the respondent advised the applicant that he had changed the ownership of the matrimonial home from joint tenancy to tenancy in common. The first paragraph of the email states:

I did not have to tell you about the changes after you conned me into leaving my house in 1999. Telling you at time or not would never have affected you whatsoever (sic) then or now. I simply change the ownership from Joint Tenancy (that means if a spouse dies, then the house is fully owned by the other joint tenant,i.e.the surviving spouse) to Tenancy in Common (that means if a spouse dies, his 50% goes to his estate ) expecting myself to die soon and I did not wish to have my main assets to go to second Wahba con artist. You could have done that change yourself without my knowledge. I am sure you would have had you researched it and known about it.

[50] The respondent sent an email dated March 19, 2018 entitled: Valuation date? In that document the respondent made the following statement:

… Unfortunately it does not apply because both of us are financially capable of leaving the house and live on our own temporarily without harsh economic effects.

[51] In the applicant’s application for divorce, she sought the sale of the matrimonial home. In the respondent’s Answer, he sought an order requiring the applicant to transfer her interest in the matrimonial home to him. On August 22, 2018, the parties consented to an order whereby the respondent would purchase the applicant’s interest in the matrimonial home for $287,500. The matrimonial home is 2800 ft.² with five bedrooms.

[52] The parties resided in the matrimonial home until September 2018 when the respondent purchased the applicant’s interest for the amount of $287,500. To finance this purchase, the respondent received $43,000 from his daughter Mona (which he repaid) and liquidated investments and cash on hand for another $244,500. The decision by the respondent to purchase the applicant’s interest in the matrimonial home was his alone. Since that time, he has lived alone in the matrimonial home. The parties agree that as of January 2021, the matrimonial home has a value of $730,000 with no mortgage.

[53] The respondent has not been clear as to his future plans. He is indicated he may sell the former matrimonial home and move to Burnaby, British Columbia to be near one of his children and live in a retirement home. His other option is to rent part of the house to provide him with companionship and help drive him around because his current license is suspended due to a diagnosis of the early onset of dementia.

Respondent’s Financial Circumstances

[54] Upon a review of the respondent’s financial statement dated November 11, 2020, the only expenses that were shared by the parties were the property taxes and property insurance. According to the respondent’s financial statement, the current cost of these two expenses is $8758.42 per year or $729.86 per month.

[55] The respondent has proposed a budget where his yearly expenses will be between $85,000 and $92,000 per year. In that amount is a repayment of a loan to his nephew, monthly cost for a housekeeper, monthly cost for a home monitoring service, dental expenses, driving expenses and repairs and maintenance.

[56] In 2015, the respondent’s income consisted of OAS, CPP, cashing in Registered Retirement Savings Plan (“RRSP”), Registered Investment Income Plan (“RIIF”) payments, interest and investment income. In 2015, he earned $21,550 from all sources. The respondent has earned the following income from all sources:

a. 2016, $21,332 b. 2017, $24,496 c. 2018, $39,101 d. 2019, $38,348

[57] The respondent testified that there is a minimum that he is required to withdraw from his RIF. In 2018, he withdrew $19,352 which he indicated was $15,200 more than the minimum required to be withdrawn on an annual basis. In 2019, he withdrew $21,758 from his RIF. In his financial statement dated November 11, 2020, the respondent indicates that he intends to withdraw $1897.49 from his RIF in 2020.

[58] According to the respondent’s financial statement sworn November 11, 2020, the respondent estimated that he would earn $19,721.52 as income derived from CPP, OAS, GST and other sources of income in 2020. In the same financial statement, the respondent indicates that his monthly expenses will total $2,949.78.

[59] The respondent’s financial statement sworn on November 11, 2020 as amended on January 19, 2021 with respect to the value of his residence, indicates that the respondent’s assets and liabilities are as follows:

Residence $730,000 (value admitted January 19, 2021) Other possessions $1,000.00 Motor vehicle $4,000.00 Bank accounts $3,011.17 RIF locked $19,456.25 RIF unlocked $24,449.21 TFSA $23,009.83 PBDA transfer $367,088.61 RRSP $33,179.22 Total Assets $1,205,194.20 Liability to Nephew $26,000 (contingent liability) 21% tax on RIF $9640.15 21% tax on $400,267.83 $84,056.20 Total $119,696.35 Net Worth $1,085,497.90

[60] In addition, the respondent will receive the sum of approximately $33,179.22 by way of the applicant transferring the amount owed into a Registered Retirement Savings Plan. That amount represents interest owed on the PBDA transfer amount. Further, there are income tax considerations that are applicable with respect to the investments that will be incurred upon disposition of these assets. In the end, the respondent will have approximately $1,100,000 without debt.

[61] The respondent indicated that he owes a debt of $26,000 to his nephew of which $20,000 will be used for roof repairs and that he will need another $16,000 for repairs to the home. On the issue of the loan from his nephew, the respondent indicated that he wants to repay it within 2 to 3 years and may be as much as five years but there are no specific terms, no document to confirm the money was borrowed. At this point there is no evidence that the money will be needed because of the respondent’s testimony that he may be moving to Burnaby, British Columbia within two years. If that occurs, the repairs will not be incurred. At this time, I find that the debt is contingent and may not be incurred.

Applicant’s Financial Circumstances

[62] The applicant intended to retire on April 30, 2020. However, because the pension transfer had not gone through and because she had legal bills and a mortgage, she changed her mind. She testified that she plans to retire once this decision is released. Since 2015, the applicant earned as follows:

a. 2015, $97,219 b. 2016, $98,026 c. 2017, $96,897 d. 2018, $103,307 e. 2019, $122,506 of which $7271 was OAS income and $10,581 was CPP income.

[63] In 2020, her income consisted of employment income of approximately $110,172, CPP income of approximately $10,500 and OAS income of approximately $3108 for a total of approximately $123,780.

[64] In September 2018, the applicant purchased her home for $448,000 which she financed by using $260,000 of the monies paid by the respondent and incurring a mortgage of $188,000. At the trial, the applicant testified that the value of the house was still $448,000 which was contested by the respondent. However, no real estate appraisal was provided regarding the applicant’s residence.

[65] The applicant’s financial statement dated November 20, 2020 indicates that her assets and liabilities as of that date were as follows:

Residence $448,000.00 Property in Egypt $32,142.00 Motor vehicle $6,000.00 Bank account $4,868.57 Pension $469,911.39 RRSP $169,920.00 Cemetery plot $4,892.90 (amended during testimony) Total $1,135,734.80 Mortgage $159,909.72 Line of credit $8,672.14 RRSP loan $672.14 (amended during testimony) MasterCard $2,562 Notional tax on Pension and RRSP’s $133,725.49 Total $305,541.49 Net Worth $830,193.40

Analysis

[66] The initial issue is whether or not the respondent has an entitlement to non-compensatory spousal support. I have taken the following factors into consideration:

a. the parties lived together from July 1976 until September 2018, a period of over 42 years. b. From 1974 to 1992, the respondent was the main wager for the family and had a very successful career as an aeronautical engineer. c. From 1991 to 2018, the applicant worked and was promoted through her employment with CRA. d. Three children were born during the marriage with the applicant assuming most of the domestic functions including cleaning and making the meals. e. From 1976 to 1997, the parties pooled their financial resources and cared for their children. By 1998, the parties were able to pay off their original mortgage of $60,000 for the purchase of their second home. f. Starting in January 1998, the parties agreed to contribute to a joint account to pay specific monthly expenses and to equally share in their children’s postsecondary educational costs and that each party would have their own separate bank account. g. From 1999 to February 2018, the parties have not had sexual relations, ate their meals separately, slept in different bedrooms and had their own separate investments. The parties travelled separately except for one occasion in December 2010 when they went to Cuba and each purchased their own ticket and slept in separate bedrooms. Since 2008, when the last child completed her education, the parents have not visited the children together. They visit separately. h. While separated, the respondent severed the joint tenancy title of the matrimonial home by transferring his interest in the matrimonial home to himself. He did not advise the applicant until March 2018 that he had registered such a deed. i. When the respondent’s Canada Pension Plan disability benefits ended in January 2009 and were replaced with the Canada Pension Plan retirement benefits and Old-Age Security benefits, there was no change in the parties’ financial contribution. j. When the respondent’s private insurance disability benefits ended in January 2014, the parties entered into another agreement which specified which expenses were to be paid and confirmed the parties’ agreement to pay $300 a month into a joint account to pay for specified expenses as well as being responsible to equally share in the annual municipal tax bill. k. The respondent requested that the applicant indicate on her income tax return that the parties were separated so that he could receive approximately $4000 a year in tax benefits. The applicant refused to do so because the parties had never proceeded to a legal separation. l. From 2014 to separation, each party contributed $300 a month to the joint account and equally shared in the annual tax bill. Each party’s total contribution was approximately $508 per month. As a result of the separation and the decision by the respondent to acquire the applicant’s interest in the matrimonial home, he has now assumed those expenses. m. The respondent made the decision to retain a 2800 square foot, five bedroom home to live in by himself. The parties agree that the matrimonial home as a value of $730,000 with no mortgage. n. The respondent testified that he anticipated that he would be receiving approximately $400,000 representing his portion of the PBDA transfer from the wife’s pension plan plus RSP rollover of approximately $33,000 representing interest on the equalization transfer. o. The applicant’s net worth is approximately $830,000 based on the applicant’s valuation. The applicant has a mortgage with an outstanding balance of approximately $159,000. p. The respondent has had medical issues including the onset of early dementia that has resulted in his driver’s license being suspended. He also has medical issues going back to 1992. q. I reject the respondent’s submission that he is entitled to have a standard of living where his yearly expenses are between $75,000 and $80,000 per year. The parties never lived such a lifestyle together.

[67] The respondent argues that the great disparity in incomes between the spouses is a significant factor to consider in determining his entitlement to spousal support. The respondent testified that he has a very restricted budget where he has removed fresh fish, only purchases chicken legs, does not purchase fresh vegetables, eats mainly TV dinners, does not go to restaurants or purchase take-out food. He testified that he washes his clothes once a month and that the house temperature is left at 17°. He showers every second day and has lost 40 pounds in the four months before the trial. He travels by municipal transit when it is free.

[68] The respondent acknowledged that if he moved to British Columbia, the cost for living in a retirement residence would vary depending on which residence he selected and in what type of accommodation. The cost ranged from as low as $2250 per month up to $6000 per month.

Disposition

[69] I find that the respondent is entitled to transitional non-compensatory spousal support to cover the period of October 1, 2018, to September 1, 2021.

[70] These parties were interdependent and pooled their resources up to January 1998 at which time they separated their financial assets. After the respondent left the matrimonial home and returned in October 2000, the parties agreed to live separate financial lives but to contribute to joint expenses. The amount ranged from as high as $1500 a month each to approximately $508 per month by separation.

[71] I find that despite the increase in the applicant’s income from approximately $38,000 in 1998-1999 to over $100,000 by the date of separation, the parties never shared that income. The parties did not have a joint standard of living except that they lived in the house and shared in specific expenses and the tax bill. Their income was theirs to spend as they saw fit. I do not find that there has been economic interdependence between the parties.

[72] By February 2018, the applicant was gainfully employed earning approximately $100,000 per year. The respondent decided to purchase the applicant’s half interest in the matrimonial home and liquidated approximately $240,000 of investments. I find that that was not a reasonable decision by the respondent when faced with a separation and having his income restricted to CPP, OAS and RIFF income. There was no need for the respondent to retain a five-bedroom 2800 ft.² home.

[73] I find it unreasonable for the respondent to propose that he remains in the home, undertakes repairs and may consider selling the home in two years. I find that the respondent does not need such a large residence and could sell the residence, invest the proceeds to generate income and move into a retirement home considering his age and medical condition.

[74] At the trial, both parties advised that they anticipated that the pension transfer would be forthcoming in the foreseeable future at which time they would calculate the precise interest factor to be paid by an RRSP transfer from the applicant to the respondent. Once received, the respondent will have approximately $400,000 to invest.

[75] I agree with the applicant that the respondent has an asset valued at $730,000 that he should sell and invest to create an additional source of income. I find that the respondent’s decision to stay in the home to be unreasonable and not the proper use of a capital asset, especially when seeking spousal support.

[76] In my view, once the respondent receives the approximate sum of $400,000 with respect to the pension and sells the matrimonial home, he will have a large sum to invest into income producing assets. Neither party provided me with an interest rate to calculate imputed income to the respondent’s investments. However, the parties used 3.25% to calculate the interest on the PBDA pension transfer. Applying the same rate of 3.25% to a net amount of $1 million would produce approximately $32,500 of interest income. Coupled with the respondent’s CPP, OAS and GST income, the respondent would have an annual income over $50,000.

[77] I have also considered that it is the applicant’s intention to retire in 2021. There was no evidence presented as to what her pension payment will be upon retirement. However, the respondent agreed that spousal support would end when she retires. It is clearly within the contemplation of these two parties that the support would end when the applicant retires.

[78] Until such time as the respondent can pull his capital assets to produce income, I find that the respondent is in is entitled to transitional support starting from October 2018. The respondent needs a reasonable period of time to sell the matrimonial home and pool his assets to create an income source. I find a reasonable period of time would be to have that task completed by October 1, 2021. For that reason, I am ordering transitional non-compensatory spousal support from October 1, 2018, to September 1, 2021.

Support from October 1, 2018 to December 1, 2019

[79] The applicant submits, in the event that spousal support is found to be payable, that the support be paid in the amount of $508 per month from October 1, 2018, to December 1, 2019. The applicant submits that this was the amount that was paid and that this is the net amount that should be paid because the spousal support would not be taxable or tax-deductible.

[80] The respondent submits that the mid range of spousal support based on the parties’ line 150 income is the appropriate amount of spousal support. Further, because the support is not tax-deductible or taxable, that the midpoint of the after-tax cost/benefit of spousal support should be payable being $1768.58 per month for October, November and December 2018. For 2019, the respondent submits the applicant should pay the after-tax cost/benefit of spousal support in the amount of $1941.50 per month.

[81] I am ordering that the spousal support to be paid by the applicant to the respondent is in the equivalent of the $508 that she paid while the parties lived together since May 2014 until she left in September 2018. I am placing the respondent in the same position that he was in when the parties lived together. I am providing the respondent with the same standard of living that existed as of the date of separation and had existed for many years.

[82] I order that commencing on October 1, 2018, up to and including December 1, 2019, the applicant pay the respondent spousal support of $508 per month.

Support commencing January 1, 2020

[83] The respondent seeks the mid range of spousal support being $3789 per month while the applicant submits that the sum of $603 per month is more appropriate as it would provide the respondent with $508 net per month based on the same argument that the respondent is entitled only to the standard of living that the parties shared in as of separation.

[84] I order that commencing on January 1, 2020, and on the first day of each and every month up to and including September 1, 2021, the applicant shall pay to the respondent the sum of $603 per month as spousal support.

[85] While I recognize that the respondent sought spousal support until the death of either of the parties or the applicant’s retirement, I’m also aware that it was the evidence of the applicant that she intended to retire after this decision was released. However, I have ordered that the spousal support would be significantly less than sought by the respondent and have tied transitional non-compensatory spousal support to a specific time to allow the respondent to pool his resources. I have also extended the payment of the spousal support to September 1, 2021, regardless of the retirement of the applicant. For that reason, the spousal support shall be payable until September 1, 2021, regardless of any material change in circumstance including the retirement of the applicant.

[86] In Fisher v. Fisher, 2008 ONCA 11, the Court of Appeal stated at paragraph 103:

In my view, when counsel fully address the Guidelines and argument, and a trial judge decides to award a quantum of support outside of the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result.

[87] In Berger v. Berger, 2016 ONCA 884 the Court of Appeal stated at paragraph 117:

In any event, an award of spousal support does not simply aim to give a payee spouse an income sufficient to just meet expenses dollar for dollar. It is intended to give the payee spouse a lifestyle similar to that enjoyed during the marriage. A recipient’s need is measured against the parties’ marital standard of living: Mason, at para. 201. The closer the economic union, the greater is the presumptive claim to an equal standard of living upon dissolution: Fisher, at para. 56.

[88] Since I have ordered spousal support outside of the ranges suggested in the Spousal Support Advisory Guidelines, I have done so for the following reasons:

a. Despite this being a traditional marriage for most of the parties’ cohabitation, for the last 18 years the parties lived separate financial lives restricted to very specific joint obligations. b. When the last child left the matrimonial home in 2008, the parties’ only financial interaction was their joint contribution to the utilities and tax bill to the matrimonial home. c. Even though the parties resided together, I find as suggested by the applicant that they were “roommates” where they only had a small financial interaction. d. I find it is fair and reasonable that the respondent be put in the place where he was before the applicant left in September 2018 when she contributed approximately $508 net per month. e. I find the respondent’s existing budget and proposed budget have no relationship to how he lived his life while the parties resided together. I find the respondent’s proposed budget is excessive and unrealistic with little documentation. The respondent proposes that he requires between $75,000 and $80,000 a year to meet his proposed expenses. The problem is that there is no evidence that he ever lived that lifestyle especially since 2014 when his private disability insurance ended. f. I find the request that the applicant pay $1760.50 per month for October through December 2018 and $1941.50 per month for the year 2019 do not correspond to the financial contributions made by the applicant until she left in September 2018. There is no evidence that the respondent needed that amount of spousal support during that period of time. The respondent’s line 150 income in 2018 was $39,099 and in 2019, his line 150 income was $38,348. g. While I agree that the respondent is entitled to transitional support on a non-compensatory basis because of his needs, I do not find that the applicant’s income should form the basis of the calculation of the spousal support. In my view, putting the respondent in the same financial position that he was in at September 2018 meets the objectives of the Divorce Act.

Costs

[89] I urge the parties to resolve the issue of costs. If the parties are unable to resolve the issue of costs, the respondent shall provide his written cost submissions not to exceed three pages plus any offers to settle and a detailed Bill of Costs by April 9, 2021. The applicant shall file her written cost submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by April 23, 2021. All costs are to be submitted to SCJ.Assistants@ontario.ca to the attention of Justice Shelston.

Released: March 24, 2021