COURT FILE NO.: FS-18-41588

DATE: 2021 05 11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stacy Henricus Christopher Stolp, Applicant

AND:

Lisette Maria (Silva) Stolp, Respondent

BEFORE: Coats J.

COUNSEL: Stacy Henricus Christopher Stolp, Self-Represented

Shelly Kalra, for the Respondent

HEARD: March 23, 2021

ENDORSEMENT

A. Issues

[1] There are several motions before the court. A summary of the relief claimed is as follows:

i. The Applicant seeks a variation of the interim without prejudice spousal and child support order made by Doi J. on June 24, 2019. The Applicant claims that his income has been severely reduced due to the current financial circumstances associated with COVID-19.

ii. The Applicant seeks an order for the immediate listing for sale of the jointly-owned matrimonial home municipally known as 2380 Gladacres Lane, Oakville, Ontario, L6M 0G4.

iii. The Respondent seeks an order dismissing the Applicant’s claims. The Respondent requests that Doi J.’s support order remain in effect. The Respondent requests that Doi J.’s Order of June 24, 2019, granting her exclusive possession of the matrimonial home remain in effect.

iv. The Respondent seeks an interim order that arrears of spousal and child support be fixed from the date of separation to present and that section 7 expenses payable to her by the Applicant for the children of the marriage be determined from the date of separation to present and ongoing.

v. The Respondent seeks an order that the Applicant’s share of the net proceeds of the sale of the cottage be paid to the Respondent on account of spousal and child support arrears from the date of separation and section 7 expenses as determined. The Applicant seeks that his share of the net proceeds be paid out to him.

[2] There were other claims in the Notices of Motion, but the claims listed above were the claims argued before me.

B. Background

[3] The Parties were married on November 11, 2000 and separated in August 2018. The Respondent claims the parties cohabitated starting in 1997 and the Applicant denies that the parties lived together before their date of marriage. This may be an issue for trial.

[4] There are two children of the marriage, Jadelyn, born October 3, 2003, and Mason, born January 8, 2007. The children reside with the Respondent.

[5] The Applicant is self-employed and owns his own commercial demolition business called Canforce (“2074292 Ontario Inc.”). In addition, there are two holding companies: (1) 2241940 Ontario Inc. is a holding company with 100 per cent interest in 2074292 Ontario Inc.; and (2) 2546603 Ontario Inc. is a real estate holding company.

[6] The Respondent claims that she had a 13-year absence from the workforce up to the separation. In 2018 she obtained her real estate licence. The Applicant appears to dispute the Respondent’s employment history. This will be an issue for trial.

C. Brief Litigation Background

[7] The matter is now scheduled for trial on the October 4, 2021 trial blitz list. It had been previously scheduled for trial, but the trial did not occur due to a suspension of regular court operations. I rescheduled the trial at the hearing of the motions on March 23, 2021.

[8] I will briefly summarize the history of the litigation relating to financial issues. The children-related issues relevant to these motions are specifically referred to in the analysis below. The two children continue to reside with the Respondent.

[9] On March 13, 2019, a motion was heard by Gray J. The Respondent was seeking an order that the jointly-owned cottage be sold, and the Applicant was seeking to amend his Application to seek exclusive possession of the cottage. Gray J. dismissed the Applicant’s motion and granted the Respondent’s motion for the sale of the cottage. The Applicant was ordered to pay the Respondent $12,000 in costs.

[10] On June 6, 2019, motions were argued before Doi J. Doi J. released his decision by endorsement dated June 24, 2019. A summary of the relief that Doi J. ordered is as follows:

a) The Applicant’s motion to sell the matrimonial home is dismissed;

b) On an interim basis, the Respondent is granted exclusive possession of the matrimonial home;

c) The parties shall equally pay for the mortgage, property taxes, and home insurance on the matrimonial home;

d) On an interim and without prejudice basis, the Applicant’s income is imputed to be $423,167 and the Respondent’s income is imputed to be $25,000;

e) Commencing July 1, 2019, and on the first of each month thereafter, the Applicant shall pay child support to the Respondent in the amount of $5,355 per month, on an interim without prejudice basis; and

f) Commencing July 1, 2019 and on the first of each month thereafter, the Applicant shall pay to the Respondent spousal support in the amount of $7,409 per month, on an interim without prejudice basis.

[11] On August 12, 2019, Doi J. ordered that the Applicant pay to the Respondent costs in the amount of $10,000.

[12] The Applicant initially filed for leave to appeal Doi J.’s Order. He did not proceed with the appeal.

[13] On July 23, 2019, a motion was heard before Dennison J. on the issue of Mason’s private school tuition. Dennison J. order that Mason would remain in private school and that the Applicant would pay 74.6 per cent of the tuition for September 2019 and September 2020. Each party was ordered to pay his/her own costs.

[14] On May 15, 2020 Fitzpatrick J. heard the Respondent’s motion for the Applicant to pay Mason’s private school tuition and for a preservation order. The Applicant was ordered to pay the tuition and a preservation order was made. The Applicant was ordered to pay $2,000 in costs.

[15] The cottage sold with a closing of September 30, 2020. The net proceeds held in trust are currently approximately $245,583.58.

[16] According to the Family Responsibility Office (“FRO”) (brought current to March 1, 2021) the arrears in support pursuant to Doi J.’s Order are $230,493.97.

D. The Applicant’s Motion to Change the Spousal and Child Support Order

a) The Order

[17] As set out above, the order the Applicant seeks to vary is the interim order of Doi J. Doi J. ordered the Applicant to pay to the Respondent spousal support in the amount of $7,409 per month and child support in the amount of $5,355 per month. Both amounts were on an interim without prejudice basis.

[18] Doi J. had before him an income report prepared by the Applicant’s expert, Mr. Hood. Mr. Hood had determined the Applicant’s income to be as follows:

a) 2016: $316,000

b) 2017: $477,000

c) 2018: $392,000

[19] Doi J. also had an income report before him prepared by the expert retained by the Respondent, Mr. Mandel. Mr. Mandel determined the Applicant’s income to be as follows:

a) 2016: $264,000

b) 2017: $487,000

c) 2018: $603,000

[20] Doi J. imputed income to both parties. His analysis is found at paras. 19-29 of his endorsement which provide as follows:

[19] The Respondent seeks interim child and spousal support from the Applicant, who has not formally paid her any child or spousal support to date despite making payment contributions towards certain household or living expenses.

[20] The Applicant clearly has an obligation to pay child support as the children are both living with the Respondent; ss. 31(1) and (7) of the Family Law Act, Child Support Guidelines, O Reg 391/97, ss. 3(1).

[21] In seeking interim spousal support, the Respondent has raised a triable claim for spousal support based on economic disadvantage from the breakdown in the relationship. She clearly has struggled financially since separation, and brought her motion for interim support until trial in an effort to maintain a standard of living based on the parties’ former accustomed lifestyle, subject to their means and needs, which await final determination at trial. In the circumstances, I have no hesitation in finding that the Respondent has satisfied the criteria for an interim spousal support claim; Loubert v. Loubert, 2015 ONSC 5395 at para 12, adopting MacKenzie v. Flynn, 2010 ONCJ 184 at paras 20-23. This is particularly true given the Applicant’s efforts to cancel the Respondent’s credit cards and retire their joint bank account which precluded her from accessing family funds to pay for her daily living needs and expenses. It also appears that the Respondent has incurred tax arrears after the Applicant purportedly reported to tax authorities a dividend to her which she claims to have never received. In addition, it appears that the Applicant caused or sought to cause the Respondent to incur additional debt obligations by opening new lines of credit jointly in her name and changing debt obligations without her prior knowledge or approval, as mentioned earlier. These are serious allegations that, if true, are quite troubling and concerning.

[22] At the hearing, the Applicant did not challenge the Respondent’s claim for interim spousal support but instead took issue with its amount based on his means.

[23] As explained above, there are serious credibility issues that arise on the record before me, particularly in respect of the Applicant’s income which remains in significant dispute by the parties. While there are several income issues that are disputed by the parties, the main income controversy relates to the Applicant’s estimated 2018 income from his demolition and construction business. The Applicant claims an estimated 2018 income of $392,000.00 based on figures provided in his income expert’s report dated March 27, 2019. In contrast, the Respondent claims that his estimated 2018 income is $603,000.00, which is purportedly indicative of his actual 2018 income tax return, based on the report of the Respondent’s own income expert dated May 21, 2019.

[24] In his submissions, the Applicant conceded that the Respondent should receive an interim combined child and spousal support payment on a without prejudice basis, in an amount ranging from $7,000.00 to $8,500.00 monthly to reflect an income imputed on an interim basis in the amount of $352,000.00. It is unclear to me how the Applicant derived this proposed imputed income figure, although he claimed in submissions that it was drawn from his expert’s income report.

[25] To make an interim spousal support calculation, I find that it is just and reasonable to impute to the Applicant an income figure on a without prejudice basis that reflects a combined average of his estimated income over the last three (3) years as determined by his own income expert at p. 2 of his March 27, 2019 report (i.e., being $316,000.00 in 2016, $477,000.00 in 2017, and $392,000.00 in 2018, for an average income of $395,000.00) along with the estimated income for those same three years as determined by the Respondent’s income expert at para. 7 of his May 21, 2019 report (i.e., being $264,000.00 in 2016, $487,000.00 in 2017 and $603,000.00 in 2018, for an average income of $451,333.33). Averaging both sets of income figures results in a combined average business income for the Applicant of $423,167.00 (i.e., being the average of the $395,000.00 and $451,333.33 income figures, rounded to the nearest dollar respectively). In arriving at this combined imputed figure, I am mindful that there may be additional sources of income that the Applicant may not yet have disclosed fully (e.g., the Applicant claims to have a farm business from the farm development property, which does not appear to have been addressed in the income expert reports). However, I am satisfied that this methodology is fair and reasonable to apply at this time to impute the Applicant’s income. This approach uses both income figures drawn from the parties’ expert reports (i.e., in a manner similar to what the Applicant proposed by using his own income expert’s figures) and, thereby, reflects the best available income information in the record before the court. It also recognizes the apparent discrepancies between the parties’ income estimates which I expect would likely require further factual and credibility findings based on a more developed evidentiary record that can only be resolved at trial.

[26] The Applicant seeks to impute $80,000.00 of annual income to the Respondent based on her last former employment from approximately 13 years ago when she was employed at Ontario Hydro. In the alternative, the Applicant seeks to impute $40,000.00 of annual income to the Respondent based on her purported role as a real estate agent which the Applicant claims she began in June 2018.

[27] I recognize that the evidentiary record before the court is rather underdeveloped at this stage in the litigation. Regardless, I have little hesitation in finding that it would be unrealistic to expect the Respondent to have been able to return to the workforce in a more senior role with an $80,000.00 annual salary, within one year following a 13 year absence from the workplace as a stay-at-home mother and homemaker. That being said, I am not persuaded that imputing some income to the Respondent would be wholly unfair on the facts of this case.

[28] I accept that the Respondent obtained her realtor’s licence in June 2018 with the sole purpose of eventually selling the forty (40) homes that the parties were approved to build on their development property, and which they eventually intended to sell by themselves (i.e., once the homes actually were built) to avoid paying high realtor fees. While the Respondent is not actively employed as a realtor and has not sold any homes as the parties’ investment property has not yet been developed, I find no reason why the Respondent could not seek to gain active work experience as a real estate agent as she is licensed as a realtor with a brokerage and readily able to pursue this work. In all of the circumstances, and based solely on the current evidentiary record before me, I find that it is reasonable to impute a relatively modest $25,000.00 of annual income to her at this time for the purpose of calculating interim support.

[29] Imputing annual incomes to the Applicant and Respondent of $423,167.00 and $25,000.00, respectively, the Divorcemate calculation provides a low SSAG payment of $5,355.00 in monthly child support and $7,409.00 in spousal support, for a total monthly combined child and spousal payment by the Applicant to the Respondent of $12,764.00 per month, which I find to be fair and appropriate to impute in this case.

[Emphasis in original ]

b) The Test for Variation of an Interim Support Order – Sections 17(4) and 17(4.1) of the Divorce Act Apply to Variations

[21] Motions to change interim support orders are not to be encouraged. A substantial change in circumstances is required before such a motion should be granted. This is set out in the third paragraph (paragraphs were not numbered) of Lipson v. Lipson, 1972 470 (ON CA), [1972] 3 O.R. 403 (C.A.), at pp. 403-404, which provides as follows:

In my view there is no doubt that the Court has the jurisdiction to vary an order for interim alimony and maintenance. This was settled by Laskin J.A. when he was a member of this Court in Carvell v. Carvell, 1969 400 (ON CA), [1969] 2 O.R. 513, 6 D.L.R. (3d) 26 (C.A.). I think he made it clear that such applications were not to be encouraged and that it would take a substantial change in the circumstances before such an application would be permitted. Certainly that would be my view. In any event, there was no such change in the circumstances here. The onus of course on such an application is on the person seeking to vary the order. An order could be varied having regard to the means and the needs of the parties. However in this case the Master has applied that test, and has, I think quite properly, arrived at the conclusion that he should not interfere with the order that was originally made: Krisman v. Krisman, 1971 428 (ON CA), [1972] 1 O.R. 518, 6 R.F.L. 147, 23 D.L.R. (3d) 412, and Gale C.J.H.C. in Madden v. Madden, 1947 49 (ON CA), [1947] O.R. 866, [1947] O.W.N. 817 (C.A.).

[22] This requirement for a substantial change in circumstances has been applied in Ladouceur v. Dupuis, 2020 ONSC 8048, at para. 40, and Biddle v. Biddle, 2004 52809 (Ont. S.C.), at para. 18.

[23] As set out in Lipson, the onus is on the moving party. In the case before me, the onus is on the Applicant.

[24] There seems to be a suggestion in the Applicant’s factum that, because Doi J. used the words “on an interim without prejudice basis,” this presents a lower threshold to the Applicant’s attempt to vary same. I disagree. Doi J.’s order was clearly interim as it was to be in place until trial. At para. 21, he references that the Respondent has brought her motion “for interim support until trial.” At para. 25, in explaining his approach to determining the Applicant’s income, he states that “[i]t also recognizes the apparent discrepancies between the parties’ income estimates which I expect would likely require further factual and credibility findings based on a more developed evidentiary record that can only be resolved at trial.” His use of the words “without prejudice” simply refers to the fact that a trial judge may determine incomes to be in different amounts and, therefore, order different support levels, including retroactively.

c) Analysis

[25] In my view, the Applicant has not established a substantial change or changes in circumstances and as such I dismiss his motion to vary interim spousal and child support. This is based in the analysis below.

[26] In his Affidavit sworn November 30, 2020, the Applicant states that since the end of March 2020, due to COVID-19 closing his business he has not had an income. He states that his personal bank account was closed in March 2020. He says that as the government did not deem his business essential there were long periods that he was prevented from working. He said his expert (Mr. Hood) has reduced the Applicant’s income by 50 per cent as set out in Mr. Hood’s report dated November 24, 2020. The Applicant says that his sales are down 80 per cent from last year. He provided copies of his 2020 business bank statements.

[27] The Applicant states in his Affidavit of December 7, 2020 that he has only been able to obtain a personal draw of $2,000 from his business in the period March to November 2020.

[28] The Applicant’s position that his income has been reduced to zero and that his business income has also been reduced is not supported by the evidence.

[29] The Applicant was asked by the Respondent for his business invoices for 2020. He refused to provide same. While he claims that his business sales are down 80 per cent, he did not supply any invoices. These invoices would have been clearly relevant.

[30] The Applicant has provided no personal income report from his expert for 2020, nor any interim report of his income covering the period from March 1, 2020 to present, the period in which he says that this personal income and business income have been reduced. He has produced no profit and loss statement or revenue and expense statement for his business from the point in time when he says that he has been unable to draw an income from his business or from when his business income has been dramatically reduced. He simply makes a bold statement that his income has been reduced because his company has not been conducting business.

[31] The calculations of the Applicant’s income are complex. There are three corporations; two of which are holding companies. The expert retained by the Respondent to calculate his income starts with the tax return income and makes numerous and complex adjustments to arrive at his income for support purposes. Without an income analysis for 2020 or part of 2020 it is not possible to calculate the Applicant’s income solely from the bank statements the Applicant has produced. In each year of Mr. Hood’s income analysis, he has attributed significant corporate income to the Applicant. Without any interim financial statements for the corporation(s) there is no way to calculate his 2020 income.

[32] The income report dated November 24, 2020 does not deal at all with the Applicant’s 2020 income. He is claiming that the change in his income occurred in the end of March 2020 due to COVID-19. The income report the Applicant references calculated his income for the calendar year 2019. There is no analysis for calendar year 2020.

[33] The November 24, 2020 report also recalculated the Applicant’s 2018 income. It went from $392,000 to $475,000. This would have increased the Applicant’s income using the averaging approach Doi J. took. There were only minor adjustments to the 2016- and 2017-income figures.

[34] The November 24, 2020 report calculated the Applicant’s 2019 income at $311,000. This is less than the figure Doi J. used. It is not 50 per cent less than his income for any of the years 2015 to 2018, which were calculated by Mr. Hood in this report. Further, if a three-year average approach is taken (as was done by Doi J.) based on the figures in the November 24, 2020 report, the three-year average of the Applicant’s income as follows:

a) 2017: $478,000

b) 2018: $475,000

c) 2019: $311,000

Total of $1,264,000 divided by three: Average of $421,333.33 per year.

[35] This amount is higher than the three-year average Doi J. relied on, which he took from the Applicant’s expert’s report available at the time, of $395,000.

[36] I note that Mr. Mandel, the Respondent’s expert, has also prepared a report for the Applicant’s 2019 income. Mr. Mandel has calculated it at $370,000. He also revised the Applicant’s 2018 income figure, so that according to Mr. Mandel, the Applicant’s three-year average income would be as follows:

a) 2017: $487,000 (from previous report)

b) 2018: $582,000

c) 2019: $370,000

Total of $1,439,000 divided by three: Average of $479,666.67 per year.

[37] Averaging the above total averages, as Doi J. did, the Applicant’s income is $450,500. (the sum of $421,333.33 and $479,666.67, divided by two). This is the most up-to-date income information received from the two experts, applying the averaging method Doi J. used at para. 25 of his endorsement. This is a higher figure than Doi J. used and does not support that there has been a reduction in the Applicant’s income.

[38] The Applicant produced bank records for one business account. There are three corporations. The Applicant has produced no statements for any other businesses. The bank statements produced are for the account ending in 213. These statements reveal that $525,959.60 has been deposited into this account from March 17, 2020 to November 2020. This only reflects the total of all deposits over $1,000. This is the period during which the Applicant is claiming that he has no income and that his business is not active. He has provided no explanation for this activity in his business account. There are substantial deposits to, and payments being made from, this account. There is no significant time period without activity in this account.

[39] The summary of the financial statements for the operating company 2074292 Ontario Inc. attached to Mr. Hood’s report, dated November 24, 2020, for the year ending July 31, 2020 does indeed show a decrease in revenue as compared to July 31, 2019. However, there is a corresponding decrease in the costs of sales. There is nothing confirming sales from August 1, 2020, either from the expert or prepared internally by the Applicant’s business.

[40] The Applicant states that the bookkeeping and accounting shows sales down 80 per cent from last year. He has provided no bookkeeping or accounting records.

[41] The Applicant states that he has had to borrow money from his mother. No proof has been provided.

[42] The bookkeeper for Canforce was Maggie Schindler until May 2020. She has filed an Affidavit sworn December 4, 2020. In this Affidavit she states that the last financials she created for Canforce were in April of 2020. At that time the business was functional – invoices were being created as late as April 2020, receivables were being collected and bills were being paid.

[43] The Applicant’s financial statement filed with the motion cannot be relied on. It indicates that his 2019 income was $245,969. There is nothing about 2020. The figure he used for 2019 is not consistent with the figure from his own expert.

[44] A review of Doi J.’s endorsement does not indicate that the support the Applicant was ordered to pay was premised upon the Applicant receiving his share of the net proceeds of the sale of the cottage. The Applicant has argued that since he has not received the net proceeds this is a basis to vary the support. At para. 15 of his endorsement, Doi J. referred to the Applicant having access to the proceeds of the cottage in relation to the Applicant’s claim for a sale of the matrimonial home, not in relation to support.

[45] The Applicant states he has received CERB money in 2020. He has not provided the full details of amounts received. Exhibit 6 to his Affidavit of November 30, 2020 appears to reflect some payments; however, there is no name on the statement. There are also no corresponding deposits on the bank statements he has provided. He has stated that the operating business received a $40,000 loan in December of 2020 from the government related to COVID-19. He has provided no details of where the funds were dispersed. The amount is not shown as having been deposited in the business account bank statements.

[46] The Applicant claims in his Affidavit of December 7, 2020 that he has debts in his business such that he has not been able to take enough income to support himself. He has provided no proof of his business debts.

[47] The Applicant argues that the bank account is a business account, so it represents business income not his personal income. He also seems to suggest that the income amounts calculated by Mr. Hood reflect business income rather than personal income. There are multiple problems with these submissions. First, the Applicant has closed his personal account. Second, the Applicant has acknowledged at questioning that he pays personal expenses through the business. This is referenced in the Respondent’s Affidavit and is not denied by the Applicant. Third, Mr. Hood was calculating the Applicant’s personal income and makes numerous adjustments to the Applicant’s personal income to reflect personal expenses paid on his behalf through the business. Fourth, Mr. Hood allocates corporate income to the Applicant each of the relevant years. The Applicant’s personal financial affairs and those of the business (where, according to Mr. Hood, the Applicant is the only full-time employee) are intertwined.

[48] The Applicant is the sole director of his operating company. He alone is responsible for its operations. Based on the bank statements produced, the company is continuing to operate and generate revenue. If the Applicant is not paying himself, he is making that decision.

[49] As reflected in para. 5 of Doi J.’s endorsement, at the time of the motion before Doi J., the Applicant was taking the position that his business was overdrawn and functioning on lines of credit. He said this had persisted for three years and had led to difficulties paying creditors and subcontractors and has caused other business disruptions. The Applicant before Doi J. claimed that he had not drawn any income from his business since the parties separated in August of 2018. He is making the same arguments now. Nothing has changed despite his own expert calculating significant personal income for the Applicant in each of 2017, 2018, and 2019.

[50] The Applicant as part of his motion to change argues that more income should be imputed to the Respondent. He provides no basis for this other than his view that Doi J. was wrong in the amount he imputed and in his understanding of her work history. These arguments are arguments on an appeal not on a motion to change. The Respondent’s work history will also be an issue for trial.

[51] Based on all of the above, I have determined that the Applicant has not met the onus of showing a substantial change in circumstances. Therefore, his Motion to Change the interim support order is dismissed.

E. Applicant’s Claim for Sale of the Matrimonial Home and Respondent’s Claim for Continued Exclusive Possession:

a) The Order

[52] In Doi J.’s endorsement of June 24, 2019, he granted the Respondent interim exclusive possession of the matrimonial home and dismissed the Applicant’s claim for the home to be sold. Doi J. found that it was in the children’s best interests to remain in the home. Doi J. also found that the Respondent’s claim to a vesting order would likely be prejudiced if a sale of the matrimonial home were ordered.

b) Positions of the Parties

[53] The Applicant is requesting that the matrimonial home be sold in order for him to pay his debts to Canada Revenue Agency for 2019 in the amount of $79,761.12 and for 2018 in the amount of $24,872.76. The Applicant also claims that the mortgage on the home has not been paid since April of 2020 and that the parties are facing possible foreclosure. The Applicant also states that the Respondent has not paid for the hot water tank rental with regard to the matrimonial home, for which A.1 Credit is threatening legal action. Pursuant to the endorsement of Doi J., each party was to pay half of the mortgage, property taxes, and home insurance for the matrimonial home. The Respondent was to pay the remainder of the household expenses.

[54] The Applicant estimates that the home would sell for between $1,600,000 and $1,850,000 and that the mortgage is approximately $651,974.05. The Applicant therefore estimates that if the home were sold each party would receive approximately $500,000.

[55] It is the Respondent’s position that the Applicant’s motion to sell the matrimonial home should be dismissed on the basis of estoppel. In any event, in terms of the children’s best interests the Respondent refers to the fact that the parties are in the midst of a section 30 assessment pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12. This was ordered by Kurz J. in October 2020. The report is not yet completed. A parenting order and decision-making order has not yet been made. There has been no further determination of the children’s best interests from June 2019 when Doi J. made his determination. The children do not see the Applicant. The OCL was involved. A lawyer was appointed, together with a social worker, to assist. Reunification therapy was recommended. The reunification therapy was not successful.

[56] It is the Respondent’s position that the Applicant has contributed to the situation with respect to the first mortgage by not paying his share of the mortgage payments. The Respondent arranged for a six-month deferral on the mortgage to November of 2020. The Applicant did not pay the home insurance from January 2019 to April 2020. When the Respondent because aware of this, she paid it.

[57] The Respondent states that she has been unable to pay her share of the expenses for the matrimonial home as ordered by Doi J. because the Applicant has not paid support.

c) The Law

[58] The Applicant’s factum does not address the law to be applied when a party seeks a second time to have the matrimonial home sold, when such a motion has previously been dismissed and where the other party was previously granted exclusive possession of the home by court order. The Applicant’s factum includes the statutory authority and law on claims for partition and sale and exclusive possession as if these issues were being raised for the first time. The Applicant did not pursue his appeal of Doi J.’s Order.

[59] Kurz J. in Spadacini-Kelava v. Kelava, 2020 ONSC 7907 considered the concept of issue estoppel and summarized the law and additional principles at paras. 105 and 106, which provide as follows:

[105] The three-part test for the application of issue estoppel was adopted by the majority of the Supreme Court of Canada in Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248, at p. 254. The Angle test was originally set out in the decision of Lord Guest of the British House of Lords in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, at p. 935, as:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies....

(See also Danyluk v. Ainsworth Technologies Inc., at para 25.)

[106] The nine following additional principles, derived from further authorities, are relevant to the consideration of issue estoppel in this case:

1. The issue out of which the estoppel is said to arise must have been "’fundamental” to the decision arrived at in the earlier proceedings (Angle v. Minister of National Revenue, at pp. 255, 265-66).

2. The breadth of issue estoppel “…extends to the material facts and the conclusions of law or of mixed fact and law (‘the questions’) that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk v. Ainsworth Technologies Inc., at para. 24).

3. Issue estoppel encompasses “issues which, although not expressly raised in the previous case, are necessarily assumed in it or negatived by it” (Allen v. Morrison (2006), 2006 7283 (ON SC), 139 C.R.R. (2d) 324 (Ont. S.C.), at para. 21, citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 1084-85)).

4. Issue estoppel applies with equal effect to consent judgments (R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216, at para. 35, citing Hardy Lumber Co. v. Pickerel River Improvement Co. (1898), 1898 16 (SCC), 29 S.C.R. 211; and Re Ontario Sugar Co. (1911), 24 O.L.R. 332 (C.A.), leave to appeal refused, (1911), 1911 8 (SCC), 44 S.C.R. 659; Sekerbank T.A.S. v Arslan, 2016 SKCA 77, 480 Sask. R. 235, at para. 100).

5. “The issue that is estopped may be an unstated premise underlying the consent to judgment where that premise is a prerequisite to the conclusion reached by the parties in the consent” (Sekerbank T.A.S. v Arslan, at para. 100, citing Donald L. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: LexisNexis, 2010), at p. 359)).

6. The court has the discretion to refuse to apply issue estoppel when to do so would cause unfairness or work an injustice (Minott v. O'Shanter Development Co., at para 49; Danyluk, at para. 33). In doing so, the court "should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice" (Danyluk, at para. 80).

7. But that discretion must be “very limited in application” (General Motors Canada Ltd. v. Naken, 1983 19 (SCC), [1983] 1 S.C.R. 72, at p. 101, speaking of the discretion regarding res judicata).

8. When a party claims that newly discovered facts or materials, create special circumstances that overcome the application of issue estoppel, the court will look to the exercise of due diligence. The person seeking to relitigate an issue must demonstrate that the new fact or materials could not have been ascertained by the exercise of reasonable diligence at the time of the first action. (Grandview v. Doering, at pp. 626, 635-39; Minott v. O'Shanter Development Co., at para. 51).

9. Issue estoppel applies to decisions of arbitrators and administrative tribunals (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed., (Toronto: Butterworths, 2018) at p. 1416, para. 19.70; Minott v. O'Shanter Development Co., at para. 18; Rasanen v. Rosemount Instruments Ltd. (1994), 1994 608 (ON CA), 17 O.R. (3d) 267 (C.A.)). As Abella J.A., as she then was, wrote for the court in Rasanen v. Rosemount Instruments Ltd., at para. 37:

[T]he policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

10. Issue estoppel can even apply to interlocutory orders in the same proceeding. In Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246, McFarland J.A., writing for the court, adopted this statement by E. Macdonald J. in Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.) at 218, aff’d. [1994] O.J. No. 2792 (C.A.):

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., 1924 2 (SCC), [1924] S.C.R. 308.

[60] The Respondent also refers to the case of Ludmer v. Ludmer, 2012 ONSC 4478. In Ludmer, the Applicant sought an order for the sale of a matrimonial home. The Applicant had previously sought an order for the sale of the matrimonial home which claim had been dismissed. The Respondent raised res judicata and issue estoppel. Paragraphs 24 and 25 of Ludmer provide as follows:

[24] I am not persuaded this is a case where res judicata or issue estoppel apply. The court has a residual stake in the manner in which litigation is conducted, founded on the court’s inherent power to control its own process. This is particularly so in family law cases, which are governed by the Family Law Rules. The primary rule is rule 2(2) which provides that the fundamental purpose of the rules is to deal with cases justly. Part of this mandate requires the court to oversee and maintain balance and fairness between the parties. This, of course, includes, where necessary, “levelling the playing field” by requiring one party to provide funding to the other to continue the litigation. It is against this general framework I consider the issues on this motion, including the issue of res judicata.

[25] When the court dismissed the wife’s motion for sale or it did so for a number of clearly articulated reasons related to the facts in existence at that time. The same holds true for the motion for interim costs. Each motion was dismissed for a number of specific reasons, based on the particular legal landscape of this case at that time. The original motions were brought and dismissed nearly four years ago. Much has happened in the case since then. The question is whether intervening events have changed the legal landscape sufficiently to support the wife’s motions. In the particular circumstances of this case, where similar motions have already been denied, it seems to me the wife has a higher burden to show the necessary factual foundation to support her motions. She is not precluded from bringing the motions; she must meet the higher burden I have articulated.

d) Analysis

[61] I have determined that the Applicant’s motion to sell the matrimonial home shall be dismissed on the basis of issue estoppel and, in particular, because the legal landscape has not changed since the Applicant’s motion was dismissed and the Respondent was granted exclusive possession by Doi J.

[62] As set out at point 10 of para. 106 in Spadacini-Kelava, issue estoppel can apply to interlocutory orders in the same proceeding. Doi J.’s Order was interlocutory. An interim order for exclusive possession was granted and the Applicant’s motion for the sale of the home was dismissed. Applying the Angle test the same question has been decided between the same parties. A court can refuse to apply issue estoppel when to do so would cause unfairness or work an injustice. To determine whether there would be unfairness or an injustice – the question as set out in Ludmer is whether intervening events have changed the legal landscape sufficiently to support a further motion. As set out in Ludmer, where a similar motion has been denied, the moving party has a higher burden to show the factual foundation to support a second motion on the same issue.

[63] In my view, the Applicant has not met this onus. The Respondent is still claiming a vesting order with respect to the Applicant’s interest in the matrimonial home. There has been no resolution of this issue.

[64] The Applicant has put forward no cogent evidence in support of the children’s best interests no longer requiring the stability that Doi J. found would be provided by their continuing to reside in the matrimonial home. The children are not seeing the Applicant. Reunification therapy was not successful. A section 30 assessment is in progress. The assessment report has not yet been received.

[65] The Applicant submits that the landscape has changed because the mortgage is in default. He has not paid any support since April 1, 2020. The Respondent requires the support to pay her share of the expenses as ordered by Doi J. The Applicant has not paid his share of the expenses. He can not rely on his own default to ground a basis for his argument that the legal landscape has changed such that he should be entitled to this relief. There is no unfairness or injustice when the Applicant’s own actions have created the circumstances.

[66] The Applicant argues that Doi J.’s Order dismissing his claim for the sale of the matrimonial home was premised in part on Doi J.’s assumption that the Applicant would obtain his share of the net proceeds of sale of the cottage. This is set out in para. 15 of Doi J.’s endorsement.

[67] In my view, the Applicant has caused the circumstances to occur whereby I decline to order any of the proceeds of sale to be paid to him. This will be addressed below. The funds cannot be paid to him in circumstances where, in accordance with Doi J.’s order, he is in arrears of support of over $230,493.97.

[68] The Applicant also claims that he owes money to Canada Revenue Agency as a basis to permit him to bring his motion for sale. I do not accept this. First, his 2018 taxes would have been already owing when Doi J. made his endorsement. Second, according to his own expert, the Applicant made $313,000 in 2019. There is no reason that he could not have remitted his tax installments and/or paid his 2019 income taxes.

[69] For these reasons, the Applicant’s motion for the sale of the matrimonial home is dismissed and Doi J.’s order granting the Respondent exclusive possession of the same shall continue in full force and effect.

G. The Respondent’s claims for Retroactive Support, an Adjustment of Support and for Section 7 Expenses and Other Relief

[70] The Respondent is seeking that support since Doi J.’s order be varied to be based on what her expert found to be the Applicant’s 2018 income and using her expert’s determination of the Applicant’s income for 2019 to determine support for 2019, 2020, and 2021. This is detailed at para. 24 of her factum and at paras. 13 and 14 of her March 9, 2021 Affidavit.

[71] I decline to order any variation requested by the Respondent. Doi J. declined to order any support for the period prior to July 1, 2019. He indicated that this was an issue for trial. There is no basis to change this. Further, if the Respondent seeks to change the interim order of Doi J. she must meet the same test as the Applicant. She has not demonstrated a substantial change in circumstances.

[72] The Respondent requests an order for proportionate sharing of section 7 expenses retrospectively and prospectively for the children. In my view, given that the trial is scheduled for the October 4, 2021 trial list, this matter can await the trial. The Respondent has not particularized any section 7 expenses for the children between now and the trial. Any retroactive claim is best dealt with at trial.

[73] The Respondent requests an order that the Applicant be compelled to comply with Doi J.’s Order for payment of half of the expenses for the matrimonial home. There is already an order with respect to same that the Applicant must comply with.

[74] The Respondent requested in her Factum an order that the Applicant must seek leave of the court prior to commencing any further motions(s). The Respondent did not argue this issue before me. Therefore, I made no determination of same.

H. Each Party’s Claim to a Release of the Proceeds of sale of the Cottage Property

[75] The Respondent estimates that there is approximately $245,583.58 remaining in trust from the sale of the cottage property. The Respondent’s position is that of this amount, approximately $239,887.13 is to the credit of the Applicant and $5,696.45 is to the credit of the Respondent.

[76] The Respondent has less remaining in trust for the following reasons:

1. By endorsement of Justice Kurz dated October 7, 2020, $100,000 was released to the Respondent;

2. The Respondent had a lien from Canada Revenue Agency in the approximate amount of $92,353.80 which was paid on closing; and

3. There was a differential between the parties as to the amount each owed on a line of credit paid out on closing. The Respondent owed more. This was based on post-separation use of the line of credit.

[77] The Respondent acknowledges that she owes the Applicant a credit of approximately $36,907.27. This is detailed at para. 42 of her Affidavit of January 7, 2021. This reflects expenses the Applicant has paid on her behalf. This number has not been agreed to or finally determined by agreement or court order. It is an outstanding issue.

[78] According to the FRO Statement, the arrears in support are $230,493.97, including the payment due on March 1, 2021. This does not include section 7 expenses for the children as there was no provision for section 7 expenses in an order, other than for the son’s tuition. The Respondent requests the $230,493.97 less $36,907.27 (the amount she says she owes the Applicant as a credit) for a net amount of $193,586.70 be paid out to her from the Applicant’s portion of the proceeds held in trust.

[79] The Applicant requests that his portion of the money held in trust be paid to him as he has debts to pay (specifically Canada Revenue Agency) and because he has no income.

[80] There is no basis for the Applicant to receive his share of the money in trust when there are substantial arrears owing pursuant to Doi J.’s order and when no spousal or child support has been paid at all, in any amount, for over one year.

[81] I order that $125,000 be released from the Applicant’s share of the money held in trust to the Respondent forthwith to be credited to him as payment towards the support arrears. As there are still credits and adjustments owing to the Applicant by the Respondent for payments made on her behalf, I have determined that this is the appropriate amount to be released to her at this time.

I. Conclusion

[82] In conclusion, I order as follows:

1. The Applicant’s claim to vary the interim support Order of Doi J. dated June 24, 2019 is dismissed.

2. The Applicant’s claim for a sale of the matrimonial home at 2380 Gladacres Lane, Oakville, is dismissed.

3. The Respondent shall forthwith receive $125,000 from the Applicant’s share of the net from the sale of the cottage held in trust to be credited to the Applicant as payment towards the support arrears. .

[83] I decline to determine the support entitlements and corresponding credits from the date of separation to July 1, 2019. These remain issues for trial. I decline to readjust support based on the Respondent’s expert’s income analysis from July 1, 2019 to present.

[84] The Respondent shall serve and file brief written submissions as to costs (three pages, double-spaced, 12-point font) with a bill of costs attached within 20 days of today. The Applicant shall serve and file brief written submissions in response (three pages, double-spaced, 12-point font) with a bill of costs attached if he is claiming costs, within 40 days of today. The Respondent shall serve and file brief written submissions in reply (one page) within 50 days of today.

Coats J.

Date: May 11, 2021