NEWMARKET COURT FILE NO.: FC-07-26152-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Amy Florence Robertson
Applicant
– and –
Stephen James Robertson
Respondent
Self-represented
Self-represented
HEARD: May 26 – 28, 31, June 1-4, 2021
REASONS FOR DECISION
a. hIMEL J.:
INTRODUCTION
1Amy (“Amy”) and Stephen (“Stephen”) married on May 23, 1992 and separated on a final basis on June 3, 2014.
2The family law litigation began with Amy’s motion without notice on January 19, 2007. Amy testified that the parties’ initial separation was preceded by an incident of family violence that resulted in criminal charges. Stephen was found not guilty after a trial, and the parties reconciled in spring 2008.
3Following the initial separation Stephen was represented by Warren Skinner (“Warren Skinner”) in both the family law and criminal proceedings.
4The family law litigation did not move forward from 2008 to 2015.
5Amy testified that she was assaulted by Stephen on May 4, 2014. On June 3, 2014, Stephen was charged with assault x2 and uttering threats in respect of various incidents.
6The parties separated on that day and Stephen’s recognizance required that he not attend at Amy’s home. Stephen was subsequently charged with various failures to comply (with undertakings and recognizance).
7On July 20, 2015, Stephen plead guilty to one count of assault on Amy and failure to comply with the condition to abstain from direct and indirect communication. Stephen denies the extent of family violence described by Amy and attributes the assault charges and various breaches to Amy’s attempts to gain a tactical advantage. He resents that he was incarcerated briefly (twice).
8The criminal conviction and the crown’s Statement of Agreed Facts (disputed by Amy) speak for themselves.
9The litigation re-commenced on or about March 5, 2015 and has been ongoing since that time.
10In Fall 2014, Warren Skinner started to stay overnight at Amy’s home during the week. In November 2014, he moved into the matrimonial home. He continues to cohabit in a common law relationship with Amy. On January 19, 2015, Warren Skinner advised Stephen that he was prepared to act as Amy’s legal counsel as long as the matter remained out of court as she could no longer afford to pay legal fees.
11After being cautioned (by the Law Society of Ontario), Warren Skinner has not represented Amy, prepared materials or appeared for her at court. However, at various times Warren Skinner has attended the family law proceedings as an observer.
12Stephen was (and continues to be) upset that his prior criminal and family law lawyer re-partnered with Amy and moved into the matrimonial home. He believes that the criminal charges levied against him were a strategic plan (as they immediately preceded the final separation) that forced him out of the home, impeded his access to corporate and financial documents (held at the home) and provided Amy with litigation advantages (including the benefits associated with living with an experienced family lawyer). Stephen submits that Warren Skinner is behind much of the litigation. Amy disagrees with all of the above.
13In or about early 2015, Stephen re-partnered with Anne Perry.
14The months leading to the breakdown of the marriage were stressful and difficult for the parties. Their problems included dire financial circumstances. Rather than work together to ensure a timely, affordable and reasonable resolution to their disputes, the parties opted to take on a scorched earth approach to this litigation.
15Much of the trial evidence focused on the parties’ misdeeds with little recognition of each party’s liability for the post-separation destruction which includes: the failure of the family businesses; the parties’ financial ruin; and, the fracturing of a once cohesive family. The parties spent days and hours arguing about these issues in an attempt to build their respective cases for costs. Frankly, each party’s behaviour and actions/inactions within and outside of the litigation is well documented in many of the court orders, court transcripts, emails and letters.
16For the reasons set out below I find that the parties are, for the most part, jointly responsible for the destruction set out above. It would be detrimental to the parties’ precarious well-being and their ability to move forward for me to assign liability for each and every misdeed that has taken place. Moreover, it would be virtually impossible for me to assign blame to each of the misdeeds as they are inter-twined.
17This case exemplifies the snowball effect of diminishing revenues, difficult financial circumstances, unsustainable financial spending, a high conflict relationship with significant stressors, and an inability to complete the tasks required for the business and family to function. The parties chose, against the recommendations of various judges, to pursue this litigation doggedly. In doing so, they chose destruction over salvation.
18This court has no jurisdiction to undue the harm caused by either party to the other. The court’s only role is to make orders and provide reasons as a means of providing finality in respect of the family law issues.
BACKGROUND FACTS
19The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required. Where evidence of significance differs, it will be identified and considered.
20The parties met in 1990, when Stephen was employed at a graphic design firm owned by the maternal grandparents. Amy worked at the business two Fridays per month.
21Amy’s prior marriage broke down on or about March 1990. Stephen moved into the home shared by Amy and her three young children in April 1990. Stephen stood in the role of a parent for those children as their biological father paid no support. The children are: D.R. born in 1983, A.R. born in 1986, and M.R. born in 1987. They are all adults living independently.
22There are two children of this marriage: S.M.R. (“M.”), born in 1994 and A.R. (“A.R.”) born in 1995. M. is 27 years old and is independent.
23A.R is on the autism spectrum and continues to be a dependent child. He has a significant learning disability and, although 25 years of age, functions like a much younger person. A.R. has remained in the care of Amy since separation. A.R. receives ODSP and will never be financially independent. Various criminal charges have been levied against him and, for several years (until Fall 2020), the Ontario Review Board determined that he was unfit to stand trial. He requires close supervision at all times by individuals skilled at being able to respond to his needs. At the commencement of the trial, the parties consented to an order dismissing all parenting claims in respect of A.R.
24The four other adult children were named as potential witnesses. Their attendance was not ultimately required following the consent order described above.
25During the marriage, the parties were life partners and business partners. From on or about 1994 to 2003, the family business grew and flourished. The parties sold the first matrimonial home and purchased a larger family home.
26Stephen primarily managed and operated the business which was started at home and later moved to 305 Industrial Way ( the “commercial property”). Stephen worked at the office (which was close to the home) approximately 40 hours a week (and he was available to pick up the children or attend school meetings as needed).
27Over time new machinery was purchased, a new partnership was formed (with Christoff) and clients were added (including Mediacom and Janssen Inc.). In 2005, a new employee (Charlene) with a unique skillset (web design and coding) enabled the parties to provide different services and expand the business.
28Amy was responsible for the bookkeeping tasks (on a part-time basis from home) and she was a stay-at-home mother who cared for five children (including A.R., whose needs were high). She primarily managed the household.
29Both parties cared for the children on evenings and weekends. Both parties were actively involved parents.
30Very little remains from the parties’ 22 year marriage. What remains is the following:
(a) the sum of approximately $520,000 from the sale of the matrimonial home and the commercial property, after the provision of costs and the sum of $75,000 in an interim disbursement paid to Amy. These are held in trust by the real estate lawyer;
(b) R.G.I. Graphic Services Inc. (“RGIGS”) is bankrupt. Robertson-Christoff Imaging Inc. (“RCI”) and Robertson Graphics Inc. (“RG Inc.”) are not operating and need to be bankrupt or wound down;
(c) a liability to CRA on account of a debt of $235,000 for Stephen’s unpaid historical person income taxes, unpaid HST, interest and penalties (for which he has become personally liable for following the bankruptcy of RGISG);
(d) capital gains are owed to CRA flowing the sale of the commercial property;
(e) a consumer proposal that, if completed, will likely absolve the parties of the CRA debts other than a payment of $50,000, and will likely remove any capital gains on the commercial property;
(f) there is an outstanding account of $65,000 for trustee and legal fees to complete the consumer proposal and to bankrupt the remaining family businesses;
(g) A.R. has repudiated his relationship with Stephen and continues to be financially (and otherwise) dependant on others;
(h) there are outstanding family law claims, including costs, that exceed the amount of available funds held in trust by the real estate lawyer; and,
(i) there are outstanding support claims.
31Notwithstanding the parties’ attempts to hold the other responsible for the downfall of the family and the resulting personal and business ruin, I find that they are both liable for same.
BRIEF OVERVIEW OF LITIGATION HISTORY
32The parties have approached this litigation with contempt for each other and little respect for proportionality in terms of judicial resources and the Family Law Rules, court processes and court orders. They have expended excessive time and legal and other fees.
33The parties have had various (seven) family law legal counsel over the years, however, Stephen became self-represented prior to a chambers motion on September 30, 2019 and Amy prior to a settlement conference on August 14, 2020.
34There are 49 Continuing Record volumes, including countless motions and conferences. These include motions brought urgently (found not to be urgent), ex parte motions (found not to be appropriately ex parte), and on short notice (found not to be appropriately on short notice).
35The parties attended before the Superior Court on 44 occasions, Amy brought motions in respect of her appeal to the Divisional Court and the Court of Appeal, and a motion in Bankruptcy Court.
36There have been extensive ongoing challenges with disclosure. This includes personal and corporate financial disclosure, such as access to corporate, tax and Quickbook documents in Amy’s power, possession and control that were held in the matrimonial home post-separation. It also includes access to documents and information relating to the family business, that were held in Stephen’s power, possession and control post-separation (when he took steps to impede Amy’s access to same).
37Each party has been ordered to produce financial disclosure. For example, on April 24, 2015, Jarvis J. ordered Amy to provide Stephen with his financial documents that she could locate in the home. He also ordered both parties to provide the disclosure requested by Stephen’s counsel on April 9, 2015. On March 1, 2017, Douglas J. ordered each party to serve an affidavit of documents, and Stephen to comply with undertakings. Both parties were ordered to comply with Jarvis J.’s disclosure order from April 24, 2015, and to sign authorizations and directions. On July 5, 2019, Macpherson J. ordered Stephen to comply with all disclosure and answer all under advisements and refusals from his questioning Stephen was not permitted to seek any further orders until the disclosure orders were followed.
38There have been various attempts to strike pleadings, and all were denied.
39Much of the relief sought by each party in their motions, urgent motions and 14B motions has been denied.
40There have been many significant costs orders of up to $25,000.
41On April 28, 2016, Jarvis J. determined that the matter was not trial ready and could not proceed notwithstanding Amy’s desire to have the matter heard.
42On August 8, 2019, a Trial Scheduling Endorsement Form was completed with Douglas J. and the matter was placed on the November trial list. The matter was not reached and was scheduled to proceed in May 2020, which was delayed due to the Covid-19 pandemic.
43On January 17, 2020, Macpherson J. heard the final motion before the trial. He dismissed Amy’s request to strike Stephen’s pleadings and for security for costs. He concluded that sufficient disclosure had been provided and ordered that Stephen may seek the relief sought in his pleadings.
44On March 30, 2021, Amy filed a Triage Form requesting that the matter proceed to trial in May 2021. Stephen did not consent to Amy’s request, however, the court determined that the matter would be heard. The parties’ Trial Management Conference scheduled for April 30, 2021, could not proceed due to the emergency court shut-down.
45On May 18, 2021, Jarvis J. met with the parties and a Trial Scheduling Endorsement Form was executed. Given that the parties ought to have been prepared for trial as of November 2019, Jarvis J. gave no credence to Stephen’s complaints that he could not be ready to proceed by May 25, 2021.
46Jarvis J. provided timelines for the delivery of all proposed exhibits, written opening statements and the trial records. By the start date of the trial (May 25, 2021) neither party had complied with the timelines, nor the requirement that two paper copies of the trial records and proposed trial exhibits be filed with the court. There were ongoing issues throughout the trial respecting the daily delivery of proposed trial exhibits, challenges with the completion of simple tasks off-line (such as an agreed statement of facts, or an agreement respecting NFP line items). I was asked, and did, provide extensions of time for various tasks, recognizing that the parties are self-represented. The parties requested relief from the provision of written statements of law, which I granted.
47On May 25, 2021, I provided the parties with a trial protocol for virtual hearings Endorsement form to assist the parties and their witnesses.
48I assisted the parties to identify the triable issues which now form a consent order dated May 26, 2021. They are as follows:
(a) Stephen’s claim for a trust interest in the first and second homes held in Amy’s name alone;
(b) the equalization of net family property or an unequal division of net family property;
(c) post-separation date adjustments on account of debts or expenses paid;
(d) occupation rent;
(e) Amy’s imputed or actual income for support purposes (from 2014 to present);
(f) Stephen’s imputed or actual income for support purposes (from 2014 to present);
(g) child support, if any, payable by Stephen for the adult child, A.R. (taking into account his ODSP, passport funding and any other income);
(h) section 7 expenses, if any, payable by Stephen for the adult child, A.R. The reasonableness and necessity of the section 7 expenses taking into account each party’s imputed or actual income, taking into account A.R.’s ODSP, passport funding or any other income. Section 7 expenses for M.;
(i) spousal support, if any, payable by Stephen; and
(j) costs (including costs of the trial and unaddressed costs (including costs that were adjourned to the trial)).
49The trial was very difficult for everyone involved. There were Zoom technology challenges, including internet issues and difficulties accessing exhibits. The parties, once defined as “highly charged” by Macpherson J., were fundamentally unwavering in their respective interpretations of the evidence, even in the face of documents, transcripts and orders that contradicted same. The trial was marred by interruptions, raised voices, insults, personal attacks and a lack of respect. The parties’ testimony was often evasive, non-responsive and misrepresented the bigger picture on many issues.
50The parties spent most of the trial pointing fingers at one another, alleging delay, obstruction and breaches of court orders. They rarely acknowledged their roles in the downfall of the family or the financial ruin that has resulted in the 7 years since separation.
51I find that the parties’ interactions during the trial are indicative of the verbal and email aggression and high conflict relationship that existed before separation and continues today.
52The real estate agent, the real estate lawyer and the trustee for the consumer proposal, have been stuck in the middle of this interpersonal war for years. While I have some concerns in respect of some of their actions, I recognize the difficulties that they encountered attempting to complete what should have been fairly typical tasks (resulting in unpaid time over and above what they have billed on this file). No doubt they each regret becoming involved in this matter.
PRELIMINARY CONSIDERATIONS
Credibility and Reliability
53This case is marked by allegations of poor credibility and reliability. Each party makes these accusations in the context of financial disclosure, misleading behaviour and misrepresentation of the facts. Jarvis J. summarizes the relevant considerations when assessing credibility and reliability as follows:1
28As has been frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,
…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attach different weight to different parts of a witness’s evidence (see R. v. D.R., [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).[14]
54I have serious concerns about each party’s credibility. The parties repeatedly built their narrative on “half-stories” failing to present an accurate picture of the facts. Amy insisted that she had fully complied with the court order for the delivery of the corporate records yet presented at least one key banking document at trial that Stephen had never seen before. Stephen had no recollection of key incidents even when presented with documents, emails and letters confirming same. The parties were not forthcoming and often misrepresented material facts. The court transcripts and orders set out breaches by each of them that they fail to acknowledge. Each party’s actions had a significant impact on the family businesses, the litigation and caused excessive delays.
55Some examples of Amy’s concerning actions and misrepresentations, and the impact of same are as follows:
(a) Amy froze the RGIGS corporate CIBC account in Spring 2015, notwithstanding that she was not a director of the corporation and had no signing authority on the account. She testified that this was for the sole purpose of ensuring that HST remittances would be paid, after learning that Janssen Inc. would be making a direct deposit in the amount of $23,673.50. However, a letter from her counsel dated March 10, 2015, which Amy presented to Stephen in his cross-examination, clearly describes another motivation. Amy did not want Stephen to use the funds. She raises the issue of unpaid child and spousal support (including a claim for M. who was residing with Stephen at the time), as well as unpaid services she had provided. Amy threatened to seek damages and legal costs if the funds were used. The impact of the freeze is that it has impeded Stephen’s ability to complete work for the major client and to address the HST cheques. Stephen testified that he would have signed the HST cheques but there were insufficient funds when the account was frozen;
(b) Amy presented a transcribed recording of Stephen from an argument that took place on or about 2003, at approximately 2:30 a.m. She states that she made this recording (without his knowledge) because she felt fearful for her safety when Stephen would return home late on Mondays and wake her up after playing hockey and socializing. However, Stephen testified that on that night she woke him up, which is confirmed in the transcript. Amy did not acknowledge any wrongdoing with respect to the taping or Stephen’s position that she baited him. She used the transcript in an attempt to obtain admissions to support her position on the parties’ respective roles during the marriage and to prove that Stephen was verbally aggressive. As is evident from a review of the surrounding statements, Amy fails to provide an accurate picture of the context or her own verbally aggressive behaviour (notwithstanding that she knew the argument was being taped). Further, while Amy denies that Warren Skinner has been involved in the litigation, the official transcriber includes a document asking whether she should invoice Amy or Warren Skinner (which is blacked out but visible). Amy’s focus on specific excerpts could have skewed my assessment of each of them. Moreover, this example supports the conclusion that Warren Skinner (who attended court at least twice) was somewhat involved in the litigation behind the scenes; and
(c) on April 24, 2015, Jarvis J. ordered Amy to deliver to Stephen his personal documents and all corporate documents held at the matrimonial home. These were not delivered until the week before another court attendance in January 2017. Amy submits to the court that she is in full compliance of the order, and requests that the accountant (David Smith), who she subpoenaed and who attended at court, acknowledge same. Dave Smith was unable to do so given that he just received the box of documents. During the trial Amy produced one statement from Scotiabank that listed the line of credit debt as $249,000. Stephen testified that he had never before received this key document (or many others). Amy responded that she had delivered same to the accountant in 2017. However, she provides no such evidence (such as a list of documents delivered). Amy admitted at trial that she continues to hold copies of corporate documentation in the basement of her home. However, she refused to acknowledge her breach of the Jarvis J. order that required disclosure to be provided in April 2015, rather than in January 2017, or at trial. I accept that Stephen was not sufficiently aware of family businesses’ finances, including quantum of unpaid HST or the extent of the debts.The impact of same is that Stephen and the accountant were delayed and/or unable to complete the corporate financial statements. I note that RGIGS is now bankrupt.
56Some examples of Stephen’s concerning actions and misrepresentations and the impact of same are as follows:
(a) Stephen misrepresented his financial circumstances when he met with Joanne Russo (the “trustee”) in January 2018. His sworn financial statement dated February 2018, fails to disclose the following: (a) his sole bank account that has a balance of $37,000; (b) that he disposed of the sum of $79,100 by way a cheque to Peter Appleton (“Peter Appleton”), two weeks prior to meeting with the trustee; and (c) he held RRSPs of approximately $90,000; (d) and, while he claimed credit card debt to CIBC and Capital One of approximately $25,000, Amy had repaid same at time of the sale of matrimonial home in July 2016 (at his insistence). Stephen also failed to inform Joanna Russo that he was in breach of the July 4, 2016, minutes of settlement and court order that required him to pay the sum of $130,000 to CRA rather than $50,000 to the trustee. The impact of same is that the trustee advised Stephen to make a consumer proposal when he had sufficient funds to re-pay his debts (to CRA and Scotibank and RBC credit cards). This set off a long and expensive process for both parties;
(b) Stephen’s sworn financial statements are misleading. In May 2015, when Stephen swore that he resides with his new partner, Anne Perry (“Anne”). However, he failed to disclose her income. He also swore that she does not work outside of the home, because she worked from home. This statement is misleading. It portrays Anne as a stay at home partner, rather than as an income earner, which was not true. In 2018, Stephen swore a financial statement that lists Anne’s income as TBD. In 2019, he swore that Anne’s income is unknown. The lack of disclosure is coincident with Stephen’s sworn statements that he has no income. Stephen eventually produced Anne’s 2018 T-4, which confirmed that she earned approximately $65,000 per year. The impact of the provision of inaccurate financial statements is that they impeded Amy’s ability to understand Stephen’s expenses, how he was supporting himself and whether he was hiding income;
(c) it is abundantly clear that Stephen paid someone named Peter Appleton the sum of $79,100 in January 2016. Stephen testified that he paid this significant sum (notwithstanding his dire financial circumstances) for legal or other advice in respect of a consumer proposal, yet no retainer was signed. Stephen admitted that he never met Peter Appleton, but rather met a John Smith in a restaurant. The business cards provided by these individuals list an address that is a post office box. On January 17, 2020, Stephen advised Amy and Macpherson J. that he was not satisfied with the services that he received; however, the money was gone. The direction to the real estate lawyer dated January 23, 2018 in respect of the payment to Peter Appleton states that the purpose of the transfer is “payment of certain debts”. What is the truth?;
(d) Stephen admits that he never reported Peter Appleton to the police for fraud. When Amy presented evidence that she had done so, he denied knowing same and was visibly upset. It is not credible that Stephen failed to take steps to have the funds returned or to call police, given the absence of the provision of services, unless he benefitted from this interaction or the funds were returned (and never disclosed). The impact of same is that Stephen has thrown away (or has hidden) the sum of $79,100, which has affected his ability to pay his debts; and
(e) Stephen alleges that Amy has committed fraud by signing her name, and then his name to corporate cheques. He denies providing Amy with consent to do so, notwithstanding his repeated evidence that she was the person responsible for writing cheques. This serious allegation is not credible. Stephen knew that the cheques he had obtained from the bank, and which were in his name alone, were being used by Amy to pay various expenses.
57The issues respecting credibility and reliability lead me to conclude that where I am required to assess same, I have considered the (reliable) documentary evidence (court orders, transcripts, bank and other third party documents, emails and letters) to corroborate the oral evidence in support of my findings.
The Family Businesses (Collectively, The “Family Business”)
58In late 1992, Stephen was interested in starting a graphic services business. The parties purchased a machine for approximately $80,000, by placing a second mortgage on the matrimonial home. As business was initially slow, Amy found work in the field of occupation therapy to contribute to the support of the family. She started in this field from on or about early 1993 until M.’s birth in April 2014.
59While she had no formal training in bookkeeping, Amy took on the tasks associated with that role for the balance of the marriage. She worked from home approximately 10 to 15 hours per week and used Quickbooks software. For many years Amy was behind in her bookkeeping tasks.
60During the marriage the parties worked together and were equal shareholders of three related businesses. The first, RG Inc. was incorporated in 1993, and later purchased the commercial property. The second, RCI, was formed when the parties partnered with a third party who died several years later. Amy and Stephen were both directors of RG Inc., which owned RCI.
61By 2003/2004, revenues had decreased dramatically due to changes in technology. The bar to entry was lowered and some products/services became obsolete.
62Corporate debt grew to approximately $200,000 by 2006. Debt was subsequently attributable to a problem that arose when double the amount of paper was purchased for a particular job, and considerably less paper was used than what had been anticipated. The threat of litigation led the parties to incorporate RGIGS which became the operating company. Stephen was the only director of that corporation. Ultimately, the matter settled with a payment of $80,000 to more than $100,000 to the client.
63Initially, RCI had a line of credit that is described as a shareholder loan. In June 2011, Scotiabank required that the debt against RCI be discharged. The parties added the debt to the mortgage/personal line of credit on the matrimonial home (the “added line of credit”). While the matrimonial home (“116 Willow Farm Lane”) was held in Amy’s name alone, both parties were personally liable for the original mortgage and the additional line of credit.
64The added line of credit was used to float the business, and to pay for the families’ expenses (both directly – with funds being taken from the loc, and indirectly - with payments being made to the family business which then paid out as management fees to the parties).
65Until the date of separation, payments made on the added line of credit came from the family business. In June 2014, the corporate portion of the line of credit was $275,000.
66By 2012/2013, RGIGS experienced significant financial difficulties. Further changes in technology, increased competition, and decreased sales impacted the corporation. The market for lithography services eventually disappeared.
67When a key employee, Charlene, left the company in 2012, Amy requested that she be replaced and trained before her departure. Charlene was skilled at coding and web-design. Given the financial circumstances, Stephen determined that Amy should undertake some of Charlene’s simpler tasks and they would outsource the balance of the work as needed.
68By 2013, Amy was approximately 1.5 years behind in her bookkeeping. Therefore, the parties had no true picture of the financial status of RGIGS and debts to CRA (for HST, source deductions and income tax). The parties were using the line of credit and credit cards like a bank machine, and debts increased.
69From 2013 until the date of separation (June 2014) and beyond, RGIGS and the family struggled financially. CRA was owed funds for personal income taxes, source deductions and corporate HST. Debts continued to increase (including credit card debt) and the line of credit was directly/indirectly supporting the family. I find that both parties were aware of the financial struggles (for the family and the business), but not the depth of same.
70At some point prior to separation Amy (and perhaps Stephen) met with Joanne Russo, a bankruptcy trustee (to whom they had been referred by their accountant (David Smith)). No steps were taken in respect of any bankruptcy or consumer proposal.
71From 2013 onwards, the RGIGS corporate financial statements were not being completed as the accountant did not have the bookkeeping figures and back-up documentation he required.
72Following the 2014 criminal charges, Stephen’s recognizance and Amy’s re-partnering with Stephen’s former solicitor, it was very difficult for the parties to cooperate to address issues with the business, the bookkeeping, the lack of financial statements and otherwise.
73Stephen no longer kept Amy apprised of the business dealings and finances. He restricted her access to a sole CIBC account that was being used for business purposes (following an issue with the joint Scotiabank account related to a CRA lien).
74Stephen’s cell phone was not in service from September to December 2014, as Amy declined to take steps to release it from the family’s cell package.
75In March 2015, Amy learned that approximately $23,000 had been deposited into the CIBC account and she took steps to freeze it. She testified that this move was an attempt to ensure that the funds could be paid for outstanding HST (although I find that she was also trying to protect her interest in the funds). Stephen testified that this move prevented him from servicing the only major client (Janssen Inc.), by impeding access to needed funds. The account was only CIBC account was unfrozen in April 2015, after a court attendance. Various outstanding HST cheques were only signed after that date. Stephen advised Janssen to remove Amy’s names from future emails, ostensibly as she was no longer involved in the business (but clearly to prevent access to information).
76Once the CRA issue was resolved, Amy took steps to re-commence using the joint Scotiabank account without Stephen’s consent. Amy continued to do some bookkeeping tasks (however, the parties were not able to communicate due the breach of recognizance which had never been changed.) Once again there was a lack of transparency and a lack of co-operation.
77From 2014 to 2017, Stephen testified that the family business had approximately $80,000 in total revenue for that period of time. He did not disclose the revenue or invoices to Amy. At trial Amy portrayed that revenue was at least $180,000, although she admitted there was no evidentiary basis for that position.
78Amy refused to complete the bookkeeping tasks (from 2014 to 2017) without the revenue and invoice information, although I find that Amy could have input the available information about withdrawals, management fees in Quickbooks.
79The parties blame each other for obstructing disclosure and for their respective failures in completing the necessary tasks to enable the accountant (David Smith) to complete his work. The parties testified that disclosure and the completion of tasks continued to be delayed for several years. Their actions impeded the progression of this case and caused further financial harm.
80The court orders and costs orders relating to disclosure speak for themselves. I find that both parties impeded financial disclosure, which prevented the accountant (who was not called as a witness at trial) from completing the required tasks. They also failed to provide disclosure about their own financial circumstances in a timely way.
81In 2017, Amy completed the bookkeeping for 2013. The first draft of the 2013 financial statement was completed in February 2018, however, Stephen refused to sign off on same until June 2019.
82The 2013 Financial Statement lists nominal accounts receivables ($37,850), considerable debts (-$406,619) and a deficit of shareholder equity after the capital stock equal to the end of year deficit (-$335,341). This is similar to the 2012 end of year deficit (-$338,027). The net income was nominal in 2013 ($2,686) and a loss in 2012 (-$20,504).
83No further financial statements have been completed.
84In July 2018, RGIGS was assigned into bankruptcy and went bankrupt in 2000. Stephen testified that RCI and RG Inc. are no longer operational. He believes that it is best for RCI and RG Inc. to proceed to bankruptcy. Amy prefers that these companies be wound up.
85Stephen filed his 2013 to 2020 Income Tax Returns late and, for some years, his income is estimated. Amy’s new accountant has assisted her to file her Income Tax Returns for 2016 to 2019. The parties’ respective incomes are primarily derived from the dissipation of RRSPs, with low/no declared employment incomes. Amy and Warren Skinner now income-split. As set out below, I have determined that each party has been intentionally underemployed since separation.
86For the reasons set out in this decision, I find that the parties are jointly liable for the downfall of the family business and the consequential financial fallout.
Amy’s Interference with the Sale of The Matrimonial Home (116 Willow Farm Lane)
87Prior to separation (2012) the parties discussed selling the matrimonial home because of their dire financial circumstances.
88Following separation Stephen repeatedly requested that 116 Willow Farm Lane be sold but Amy did not agree. In mid-June 2014, Stephen declined to provide spousal consent to a new mortgage as he believed that the house needed to be sold. The bank automatically rolled over the mortgage but at a higher rate.
89In September 2014, Amy permitted Jim Barron (“the real estate agent”) to tour the home.
90Amy wanted to keep the home and believed that it was in A.R.’s best interests to do so.
91As stated above, prior to separation RGIGS made regular payments to the added portion of the line of credit (as evidenced from the CIBC bank account), however, no such payments were made thereafter.
92By Fall 2014, Amy fell behind on the mortgage payments as she had no income and no child or spousal support. She was unable to service the higher payments and the added line of credit. It is unclear why Warren Skinner or an adult child residing in the home did not contribute to these payments.
93To avoid a power of sale, Amy agreed to list 116 Willow Farm Lane for sale, and she engaged Susan Cowan (“the second real estate agent”).
94Stephen consented to a six-month mortgage on representations made by the second real estate agent and the Scotiabank mortgage staff-person that the home would be listed for sale and placed on MLS.
95I find that the house needed to be sold shortly after separation given the family business’s financial struggles, the parties’ debts and the bank’s intention to proceed by way of a power of sale.
96Amy admits that she had no intention of selling the home at that time, however, she did not inform the second real estate agent or Stephen of same. Consequently, Amy refused to list the home on MLS, nor did she permit any prospective purchasers to view the home when it was under contract between January 22, 2015 and May 7, 2015.
97As per an email dated February 4, 2015, Amy undertook renovations (at her expense for a stated cost $30,000) during a time that the house was officially for sale, purportedly in an attempt to increase the value. However, I find the timing of such improvements suspect as the house was already listed for sale. Moreover, as stated below, Amy continued to have no intention to sell the house even after it was sold in April 2016.
98On March 10, 2015, Scotiabank emailed Amy (care of Warren Skinner) to demand payment of the arrears and stating that they may proceed with a mortgage action.
99At a Case Conference on April 24, 2015, Jarvis J. ordered that both the commercial property and the matrimonial home be sold. His endorsement states, “parties appearing with counsel. Both parties agreed that the MH (matrimonial home) and commercial property be sold. OTG (Order to go) that the MH and commercial property be sold.”
100Jarvis J. ordered as follows: (a) Amy choose the real estate agent for the home and Stephen for the commercial unit; (b) both parties cooperate with the agent, and; (c) they be guided by the agents’ advice/recommendations. Listing agreements were to be signed by May 1, 2015. The net proceeds of sale were to be held by the court pending further agreement or order. Jarvis J. cautioned that failure to cooperate may result in the court ordering that the other party’s consent be dispensed with.
101As summarized by Charney J. in his endorsement dated October 13, 2015 (detailed below), the transcript (of the Jarvis J. conference) indicates that “Justice Jarvis read the proposed endorsement to the parties and their counsel. Amy’s counsel responded, “I have no difficulty with what your Honour has done so far today.”
102While Amy took initial steps in accordance with the order, she subsequently brought a motion for leave to appeal Jarvis J.’s consent order. Amy stated that she had not consented to the order and did not know that she could contradict her lawyer (who had consented) at the case conference.
103On June 2, 2015, Gilmore J. ordered that the sale of the matrimonial home br stayed pending the hearing of the leave motion. She ordered the transcript of the case conference, factums, an appeal book and authorities.
104When the six-month mortgage expired on June 13, 2015, Stephen refused to consent to renew the mortgage. Amy continued to make mortgage payments until the bank refused to accept same on the basis that there was no mortgage. On August 25, 2015, Scotiabank sent a letter demanding payment of all arrears, failing which the bank would consider next steps.
105Amy provided Stephen with the transcript of the April 24, 2015 court proceeding on September 29, 2015.
106The leave application had not been perfected by October 13, 2015, when the parties brought further motions before Charney J.. Amy’s requested relief included the re-payment of debts and that she be permitted to place a mortgage on 116 Willow Farm Lane to avoid power of sale proceedings. Stephen brought a cross-motion for the sale of the matrimonial home. The parties disputed whether the appropriate route to appeal was to the Court of Appeal or Divisional Court.
107Charney J. dismissed both parties’ motions.
108By letter dated November 15, 2015, Scotiabank informed the parties, Amy (as owner) and Stephen (as consenting spouse), that the mortgage was in default. The total due as at November 10, 2015 on account of the original mortgage, the added line of credit and various fees was $412,054.05. Unless that amount was paid in full by December 18, 2015, the house would proceed to be sold by power of sale.
109On February 15, 2016, the appeal was dismissed, and the stay was lifted as the Divisional Court held that the appeal should have been before the Court of Appeal (as summarized by Rogers J. on March 31, 2016.)
110On March 31, 2016, Rogers J. dismissed Amy’s motion for exclusive possession of the matrimonial home. She denied permission to encumber the property finding that this issue was res judicata, as the same motion was argued on October 13, 2015.
111Rogers J. ordered that Amy must give effect to the existing order for sale. She carefully structured the process of its sale and made the following relevant orders:
(a) assigning the “picking” of the agent to Stephen as he was the person most interested in carrying out the sale. The real estate agent was directed to set the price for the listing;
(b) fixing the timing of the showings to avoid arguments and requiring Amy and other residents to leave;
(c) requiring that the order dated April 24, 2015 be carried out forthwith;
(d) directing that the house be listed on MLS;
(e) requiring the agent to freely disclose all information about the sale to counsel and the parties;
(f) providing either party the opportunity to bring the matter back to court on short notice for directions, in the event of issues about the conduct of the sale;
(g) directing that each party receive the sum of $150,000 at the time of sale;
(h) ordering that each party sign the listing agreement prepared by the real estate agent by April 12, 2016, failing which the sale shall proceed by the party signing the listing;
(i) directing that upon presentation by the agent, both parties must sign the offer within 24 hours of presentation. If a party refused to sign, the other party may bring a motion on short notice to dispense with that party’s signature to the offer; and,
(j) limiting acceptable offers to those with a closing date no sooner than July 4, 2016.
112Notwithstanding Rogers’ J. clear directions, problems ensued with listing the home. The real estate agent (Jim Barron) had previously worked with the parties on the sale of the commercial property. He had faced challenges including the parties’ non-responsiveness to cleaning the unit in a timely manner. Amy did not want Jim Barron to sell the home because she perceived that his “hockey buddy” relationship with Stephen created a conflict of interest.
113The real estate agent anticipated that there would be challenges with the sale. He was aware that Amy had previously chosen the second real estate agent (over him) but had not permitted the home to be sold. As stated above, Amy impeded the sale of the home during Winter/Spring 2015.
114On April 8, 2016, the real estate agent and his associate (who he brought to prevent allegations of impropriety) attended at the home to complete measurements. I accept the agent’s testimony that Warren Skinner made a comment about his “hockey buddy”, that Amy was focused on telling him about Stephen’s bad behaviour, and that Warren Skinner followed him around the home.
115Ultimately, the real estate agent determined that he required a commission of 6% to list the house for sale. He had previously offered a rate of 5% if both parties had been listed at the same time, and 4% if he was the agent who also acted for the purchasers.
116Amy’s counsel objected to the commission rate, requesting that it be set at 4%.
117Stephen and his counsel advised the real estate agent to delay the provision of the listing agreement. While Stephen signed the agreement on April 9, 2021, it was only provided to Amy on the afternoon of April 12 (the day that it needed to be signed). It should have been provided on April 9, 2016 (although as Amy continued to argue against the 6% commission, it is unlikely she would have executed the listing agreement).
118Amy refused to sign the listing agreement as provided. Jim Barron testified that he was unwilling to accept two of her proposed amendments, being: (1) the change from 6% to 4% for the commission; and (2) the change from 120 days to 90 days for the listing period.
119Stephen acknowledges that the rate of commission was high, however, that is what his real estate agent required.
120In the context of this case (including the need for the real estate agent to testify), I am not prepared to find the rate of commission unreasonable. Amy lost her opportunity to exert any control over the sale process because of her interference with same. As such, she ought to have signed the agreement as provided to her once it was apparent that the agent declined to accept her requested changes.
121The listing proceeded. Stephen and his counsel took the position that Amy had forgone the right to be involved in the sale. Consequently, when Stephen received two offers on April 17, 2017, the real estate agent was advised that he need not forward same to Amy.
122The house was listed for $1,499,000 and sold for $1,658,000. That is considerably higher than the value attributed to the home two years earlier (between $1,080,000 (Amy) and $1,375,000(Stephen)).
123The real estate agent forwarded the best offer to Amy on April 18, 2016,which is the same day that Stephen brought an urgent motion to dispense with Amy’s signature.
124Amy continued to dispute the sale, soliciting a letter dated April 18, 2016 from A.R.’s psychiatrist recommending against a move from the matrimonial home.
125On April 19, 2016, Jarvis J. authorized Stephen to accept the offer and other related relief.
126The parties returned to court for an emergency motion on June 8, 2016 when they entered into (handwritten) Minutes of Settlement respecting chattel.
127On July 4, 2016, Amy served a two volume emergency motion on Stephen returnable that day seeking orders respecting the release of funds held from the closing of the matrimonial home which was scheduled for the next day. I have considered the parties’ evidence and reviewed the transcript and various emails which confirm as follows: (1) While Amy purchased a new home in May 2016, she only disclosed same around July 1, 2016; (2) Stephen took the position that Amy must pay the joint credit cards and her CRA debt (a lien on the home) at closing. This would have left her with only $40,000 and she needed $150,000 to close the purchase (which she was the amount set out in the Rogers J. order); (4) Stephen was prepared to agree to the release of considerably more funds (for example $500,000), to enable each of them to re-pay debt and have additional funds.
128McGee J. found that Amy had created the emergency by purchasing the new home. In any event, the issue was resolved by way of (handwritten) minutes of settlement that were signed by Amy and by her counsel on behalf of Stephen’s counsel (who had attended by telephone) after he obtained instructions. The minutes of settlement and the transcript clearly identify the following agreement: (a) The parties consented to the release of the sum of $375,000 to each of them; (b) Each party would receive $150,000 cash; (c) Amy was obliged to pay costs and various debts (including the entirety of the joint credit cards subject to re-adjustment and CRA); (d) Stephen would pay the entirety of his CRA debt. The real estate lawyer was directed to hold back $70,000 to enable Amy to pay her CRA debt and hold back $130,000 to enable Stephen to pay his CRA debt; (e) If either party’s CRA debt was less than the holdback, the excess funds would be returned to that party; (f) Other debts would be paid; and, (g) Any remaining funds would be paid to each lawyer’s firm in trust.
129The transcript and McGee J.’s endorsement confirm that both counsel consented to the terms set out above. McGee J. states on the record that it is important to provide the real estate lawyer with the agreed-upon payouts to ensure that he is properly directed in respect of same.
130Amy believes that her actions to prevent the sale of the home were reasonable and justified. At various court attendances, and during the trial, Amy explained that she took steps to prevent the sale as it was not in A.R.’s best interest, as confirmed by the psychiatrist. Amy worried about having nowhere to live, no child or spousal support and she wanted to keep the house. She blames Stephen for the problems that ensued as he refused to consent to the requested mortgages which lead to increased interest rates, added fees and the two powers of sale issues. She submits that Stephen benefits from the delayed sale given the considerable increase in value post-separation.
131Stephen asserts that Amy’s actions obstructed the sale of the matrimonial home, which was the family’s only asset of significant value on separation. He submits that Amy’s actions caused significant delays and excessive legal fees. He states that if the home was sold in January 2015, as anticipated, the parties could have repaid debts, had funds to support themselves, avoided considerable further litigation and could have addressed some of the challenges faced by the family business. I agree.
132As set out above, I find that Amy agreed to sell the home on several occasions and then obstructed same. Amy refused to recognize that the family’s situation was dire. Most of the family’s capital was held in the commercial property and the matrimonial home. Both properties needed to be sold shortly after separation.
133Amy’s assertion that Stephen benefits from the increased value as of July 2016, is only correct if I find that he has a trust interest in 116 Willow Farm Lane. Otherwise, in accordance with the principles of equalization of net family property, Amy solely benefits for her delaying behaviour. However, since I find that Stephen has a ½ interest in the matrimonial home in accordance with trust principles (as set out below), some of the costs incurred by each party is defrayed by the increase in value as of May 2016.
Stephen’s Non-Compliance with the Re-payment of CRA Debt and the Subsequent Ill-fated Consumer Proposal
134Stephen never re-paid to CRA the sum of $130,000 or any other amount that was owing. He believes that the $130,000 belonged to him. He denies consenting to minutes of settlement requiring him to repay his debt to CRA. Stephen complains that neither he nor his lawyer were present at court on July 4, 2016. However, his counsel participated by telephone and stated on the record that he would obtain instructions from his client before proceeding. Stephen objects to the minutes of settlement being handwritten (although he was a party to earlier handwritten minutes of settlement). He is suspicious that the court order was signed at a much later date.
135I find all of the above patently unreasonable. Stephen had legal counsel on July 4, 2016 and for an extended period thereafter. There is no issue with handwritten minutes of settlement, and he should have raised any concerns or questions with his counsel immediately after the court attendance. It is irrelevant that the court order is taken out considerably later. I find that Stephen took no steps to obtain clarification or to correct any misconceptions or errors. Instead, he left the funds with the real estate lawyer until such time that he decided to treat them as his own, in breach of the minutes of settlement. I also find it entirely unacceptable that Stephen failed to disclose to Amy that he had not paid the sum of $130,000 (or any amount) and planned to direct the funds elsewhere.
136I note that on or about late 2017, Stephen met with Joanna Russo, a bankruptcy trustee (the “trustee”) to discuss his options, purportedly due to a heavy debt load.
137Subsequently, in January 2018, Stephen directed the real estate lawyer to pay the sum of $79,100 to Peter Appleton and $50,000 to the trustee. (I note that she continues to hold these funds in anticipation of a resolution to the consumer proposal which includes a payment in that amount to CRA). I find that these payments are in breach of the McGee J. order.
138The real estate lawyer never requested proof that Stephen had paid CRA or advised Amy of his intention not to do so. He was satisfied there was no need to do so as a trustee was involved. Counsel viewed his role as follows: a real estate lawyer who was merely required to hold and pay out the remaining funds. He repeatedly attempted to reach Amy’s counsel, but she failed to contact him until March 2018 (which she denies). I accept that the real estate lawyer made these attempts. However, his failure to reach out to Amy directly (given the joint retainer and the clear directions set out in the minutes of settlement) is highly problematic. His failure to take steps to contact CRA or request evidence that Stephen had paid the CRA debt is concerning. I note that a complaint has been made to the Law Society of Ontario and the lawyer has retained solicitor’s negligence counsel.
139The financial statement sworn in February 2018, upon which the trustee recommended that Stephen enter into a consumer proposal was misleading and inaccurate. Stephen failed to disclose the following:
(a) he had just paid Peter Appleton the sum of $79,100 from funds ordered to be used to pay CRA;
(b) the $50,000 paid to the trustee were funds ordered to be used to pay CRA directly;
(c) Stephen disclosed no cash at hand notwithstanding that he had approximately $37,000 in the bank;
(d) Stephen listed joint credit cards (Capital One and RBC debts of approximately $25,000) that were re-paid by Amy on July 6, 2016; and,
(e) Stephen failed to disclose $90,000 in RRSPs (which are exempt from the consumer proposal process but must be disclosed on the Financial Statement).
140I decline to accept Stephen’s evidence that these mistakes are innocent errors. By 2018, Stephen had sworn several financial statements as part of the litigation and would have understood the importance of listing one’s assets and liabilities. Ms. Russo testified that she interviewed Stephen and asked about his assets and liabilities.
141I find Joanna Russo to be a credible witness. Her role as a trustee is to provide advice to individuals considering bankruptcy and consumer proposals. However, once engaged her role is to protect secured and unsecured creditors (such as CRA, credit card companies and Amy). Joanna Russo testified that she would not have recommended a consumer proposal if she had known the above since the actual debts were to CRA (approximately $105,000) and for credit card debt (CIBC and Scotiabank debts of approximately $27,000). Stephen had the means to pay these debts.
142Upon receipt of the creditor package in March 2018, Amy finally learned that Stephen was in breach of the McGee J. consent order dated July 4, 2016 requiring him to pay the sum of $130,000 to CRA.
143Amy subsequently retained legal counsel to act on her behalf in respect of Stephen’s consumer proposal. She filed a creditor claim seeking child support and other expenses. Her claim is for approximately $970,000 (which I find to be overblown as it is based on an imputed income to Stephen of $100,000 and unreasonable expenses such as her mileage to drive A.R. for appointments).
144On October 23, 2018, Amy brought a motion in bankruptcy court to lift the stay, enabling her to continue to pursue her support and property claims in family court. This was resolved by way of a consent order with no costs.
145Amy testified that she has incurred approximately $80,000 in legal fees to pursue her claim as a creditor and to obtain the bankruptcy court order.
146The consumer proposal has yet to be resolved. Neither party can quantify the value of Stephen’s amended and further amended consumer proposals. His intention is to provide Amy with all of the funds currently held by the trustee (in recognition of A.R.’s needs) except: (a) the sum of $50,000 payable to CRA, which is held separate from the joint funds; the sum of $65,000 payable to the trustee; and, (c) the sum of $20,000 payable to Stephen’s family lawyer (which is now paid and has been removed from the current plan). However, since the parties do not agree (and the court has yet to order) how much of the funds held by the real estate lawyer are payable to Amy on account of equalization, post-separation date adjustments and retroactive child and spousal support, Amy has declined to accept any of the proposals.
147The consumer proposal has delayed the resolution of this family law dispute. Amy does not significantly benefit from the consumer based on my findings in this case. As CRA never took steps to hold Amy liable for the family business’s HST debt in the amount of $91,000, I decline to find that eliminating same is a benefit to her. Amy will benefit from the consumer proposal if the capital gains debt is eliminated, however, she testified that the capital gains may not be significant.
148In contrast, the consumer proposal significantly benefits Stephen. The CRA’s determination that he is now personally liable for unpaid HST in the amount of $91,000 (which may relate to his decision to bankrupt RGIGS in 2018) is a debt that he cannot afford in addition to the personal income tax owed. The payment of $79,100 to Peter Appleton impedes his ability to repay that debt. The CRA’s willingness to accept the sum of $50,000 on account of the above is of great assistance to Stephen.
149I recognize that bankrupting RG Inc. and RCI will provide each party with peace of mind.
150Stephen testified that that the best course of action is to bankrupt RG Inc. and RCI. However, the outstanding legal and trustee fees must be paid and Amy refuses to release the funds held by the real estate lawyer.
151Stephen created these issues and he should be liable for same. I order that Stephen is solely liable for the $65,000 owed to the trustee and the lawyers. Given that he currently owes significant funds to CRA, the requirement that he pay the sum of $65,000 and his agreement to pay CRA the sum of $50,000, puts him in a better position than paying what is actually owed. Moreover, he will be paying less than what he agreed to pay in the minutes of settlement dated July 4, 2016, in respect of his debt to CRA.
152Stephen shall be solely liable for any other expenses payable to complete the consumer proposal and to bankrupt RCI and RGIGS. Amy shall cooperate to ensure that these initiatives can be achieved as soon as possible.
153I decline to order Amy to contribute to these expenses. To order otherwise would effectively enable Stephen to benefit from his misrepresentations and the breach of McGee J.’s order. Stephen’s actions further delayed the resolution of the family law dispute.
TRIABLE ISSUES AND ANALYSIS
Property Issues
154The Preamble of the Family Law Act,2 (the “Act”) describes the legislative purpose as follows:
Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children[.]
155Sections 4(1) and 5(1) of the Act define and address the equalization of net family property, as follows:
4(1) “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage;
4(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property. 2009, c. 33, Sched. 2, s. 34 (2).
5(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family property is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).
156Section 5(6) of the Act permits the Court to adjust a presumptive equalization of spouses’ net family property in exceptional circumstances.
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family property if the court is of the opinion that equalizing the net family property would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
5(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family property, subject only to the equitable considerations set out in subsection (6).
157Courts have universally accepted that the Act is intended to promote predictability and discourage litigation.3 “Ontario deliberately chose a fixed valuation date approach. For most practical purposes, that date is the date of separation.”4
158Post-valuation date changes in value can be remedied through trust claims (resulting and constructive) and an unequal division of net family property. Unequal division claims are limited to findings of unconscionability (which is a much higher bar than “unfair or inequitable”) in the context of the equalization of net family property.
The Trust Claims
159The Supreme Court of Canada considered the use of unjust enrichment within the family law context in Kerr v. Baranow.5 Justice Cromwell outlined the following three elements that must be satisfied in order for a claim of unjust enrichment to be successful:
An enrichment of or benefit to the defendant;
Corresponding deprivation of the plaintiff; and
The absence of a juristic reason for the enrichment.
160The Ontario Court of Appeal in Korman v. Korman,6 provides a useful summary of the Act, and the relevant caselaw in the context of a case involving a married couple, as follows at paras. 25-27:
25For married spouses, the Act provides a comprehensive scheme for resolving financial issues following marriage breakdown. Section 10(1) of the Act authorizes a court to determine questions of title between spouses. This includes considering whether legal title actually reflects beneficial ownership. As indicated by this court in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 47, citing Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, “[b]efore property can be equalized under the [Act]], a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled.” In other words, property entitlements must be determined before they can be equalized.
26Section 14 of the Act affirms the presumption of a resulting trust in determining questions of ownership between spouses in the context of gratuitous property transfers. Where the presumption is invoked, the party resisting the imposition of a resulting trust is required to disprove the presumption that his or her spouse is the beneficial owner of an interest in the disputed property.
27In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 16-19, the Supreme Court confirmed that a traditional resulting trust may arise in the domestic context where, as here, there has been financial contribution to the initial acquisition of a property and a subsequent gratuitous transfer of title to the property. In these circumstances, the actual intention of the transferor is the governing consideration. See also Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44; Schwartz v. Schwartz, 2012 ONCA 239, 290 O.A.C. 30, at paras. 41-42. Further, the intention of the transferor to make a voluntary and gratuitous transfer is an essential ingredient of a legally valid gift: see McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 24.
161As per sections 10(1) and 14 of the Act, the court has the authority to determine questions of title between spouses and to find that a spouse has gratuitously conveyed property to his/her partner and is entitled to the return of the property. The court also has the authority to make a finding of resulting trust.
The Knole Haven Home
162Stephen claims that he is entitled to a 50% interest in the parties’ first matrimonial home (“10 Knole Haven”), and that the equity in the home is a joint family venture. While the home was held in Amy’s name alone, he was primarily supporting the family.
163Amy purchased 10 Knole Haven on March 6, 1990 for the sum of $352,500. Amy obtained a mortgage in the amount of $165,000. She paid the balance (of approximately $187,500) from the net proceeds of sale of the home that she owned during her prior marriage. Amy testified that she purchased the home at a significant discount as the builder was in receipt of a deposit when a purchaser walked away from the deal.
164When the parties married on May 23, 1992 (two years later), the mortgage was approximately $160,000. Once the increase in value ($372,000) and notional disposition costs ($14,880 at 4%) are factored in, the net increase is $4,620.
165The marriage date value was provided by Diane Anderson (the “appraiser”), an expert in the appraisal of residential properties. Her retrospective valuation of the home is the only evidence before the court. The value, which is based on comparable properties sold at that time, is reasonable taking into account the discounted purchase price to Amy and the evidence respecting the market at that time.
166Stephen’s $5,000 contribution towards the mortgage up to the date of marriage (which would have been primarily interest) does not afford him a trust interest in the property. Given that he resided at the home, his contributions (which likely included property taxes, utilities and other expenses as he primarily supported the family), are reasonable.
167I do not find the required elements for a trust claim on 10 Knole Haven. There was no initial acquisition payment by Stephen, no gratuitous gift of the home, no unjust enrichment of Amy or corresponding deprivation of Stephen. The juristic reason to prevent such a claim is the equalization of net family property process which specifically provides that a party may claim a marriage date deduction for a matrimonial home brought into the marriage so long as it is sold prior to separation.
168I find that Amy may claim the marriage date deduction for the matrimonial home (net of the mortgage and notional disposition costs) in its entirety. Stephen’s trust claim is dismissed.
The Willow Farm Lane Home
169Stephen also claims that he is entitled to a 50% interest in the parties’ second matrimonial home (“116 Willow Farm Lane”) which was purchased and held in Amy’s name alone.
170Stephen testified that the parties jointly decided that Amy would hold title to the home to offset the risk of liability. 116 Willow Farm Lane was purchased with equity built up during the marriage from jointly earned corporate income. The mortgage, taxes and all household expenses were paid from these joint funds. Stephen was the primary income earner throughout the marriage. I also note that within a few months of its purchase Stephen paid down the mortgage (by approximately $20,000) when he sold a boat.
171He states that the matrimonial home and family businesses were joint family ventures. The matrimonial home, which Stephen had requested be sold before and after separation, increased in value prior to its disposition in July 2016. He asserts that the elements of trust have been met.
172Amy denies that the parties jointly agreed that she would hold title to avoid liability risks for Stephen. At the time of the purchase in 1999, she was a director and a shareholder of the family businesses.
173In terms of a joint venture, Amy was employed in the family business and worked approximately 10 to 15 hours per week doing bookkeeping tasks. Some of Amy’s responsibilities included writing cheques from the business to pay various expenses.
174In 2013, Amy took over a former employee’s position and worked approximately 35 to 37 hours per week. Stephen was otherwise responsible for operating the business.
175During the marriage the parties income split to achieve tax efficiencies.
176I find that the matrimonial home and the family business functioned as one venture. They were both 50% owners of the family businesses, both named on the mortgage and lines of credit attributable to either of these entities, both named as joint owners of the commercial property. The parties operated as joint family venture partners.
177Diana Anderson provided an expert’s report valuing 116 Willow Farm Lane retrospectively at the date of separation (June 3, 2014). She provided an opinion after attending at the home (in February 2016), being advised by Amy about improvements made following separation, and comparing the property to three similar homes sold around valuation date. In her expert opinion, the value at separation date was $1,080,000. The property was listed for sale in 2015 for the sum of $1,300,000, however, Amy had no intention of selling the property at that time. As such, she would not permit prospective purchases to see the home and it was not listed on MLS. The property ultimately sold in June 2016 for the sum of $1,658,000.
178Given my findings in respect of the joint venture, Stephen’s role as the primary breadwinner and the dramatic increase in value over the two years from the date of separation (of between $1,080,000 to $1,300,000) to the date of sale ($1,658,000), I find that the elements of unjust enrichment have been made.
179Absent a constructive trust award to Stephen, the post-valuation increase in value of the matrimonial home results in: 1. An enrichment to Amy (due primarily to market forces); 2. A corresponding deprivation to Stephen (resulting from the absence of access to his equity at separation and the absence of sharing in the increased value of the home); and, (3) there is no juristic reason for the enrichment.
180The principle of a presumed joint venture through the equalization of net family property does not apply in this case. If the house had been sold immediately following separation, was Stephen requested same (before and after separation), there would be no need to afford Stephen with a trust interest. However, that is not what took place.
181Moreover, Amy effectively recognizes Stephens’ trust interest. In her closing statement Amy made reference to both parties sharing in the increase of value caused by the delay. That is correct only as a function of my decision that Stephen holds a trust interest in the matrimonial home.
Amy’s Request for an Unequal Division of Net Family Property
182The law respecting an unequal division of net family property section 5(7) of the Family Law Act, is explained in Serra v. Serra:
To ensure adherence to the policy choices made by the legislature, and reflected in s. 5(7) and the preamble of the Act, equalization of net family property is the general rule. …Judicial discretion with respect to equalization payments is therefore severely restricted, by statutory design, but it is not eliminated altogether since there is discretion to order an unequal payment where "the court is of the opinion that equalizing the net family properties would be unconscionable": see, for example, Skrlj v. Skrlj, supra, at p. 309 R.F.L.” (para. 57)
183Amy submits that the test for unconscionably is met on the following basis; (a) Amy was the sole contributor to the mortgage, taxes, and related expenses since separation; (b) She invested approximately $30,000 in improvements to the matrimonial home after separation; and (c) Amy paid various joint debts after separation.
184Stephen submits that Amy should be solely liable for expenses attributable to the home as she and Warren Skinner continued to reside there for two years following separation.
185The test for unconscionability is high. I do not find that that equalization would be “repugnant to anyone’s sense of justice” or that it would “shock the conscience”7 of the Court.
186The issues respecting the payment of post-valuation date expenses, joint debt and occupation rent are dealt with as separate claims for relief, rather than under the umbrella of unconscionability.
Other NFP Issues
187During the course of the trial, the parties were able to reach a consensus on most of the line items set out in the NFP calculation.
188The only two unresolved issues, and my decision respecting same are as follows:
(a) on the date of separation Stephen owned a used 2007 Tahoe LTZ, that he purchased for approximately $22,000 several years earlier. He provided a low estimated value ($11,000), as the car had been involved in a serious accident before his purchase. Amy provided a much higher estimate ($19,500 for a similar car). Neither party had estimates for the particular model in dispute, nor for consideration of the rust/damage that allegedly developed by the date of separation because of the historical accident. Given that the parties purchased the car knowing that it had been in a significant accident (and presumably paid less for that reason), I am not prepared to accept the greatly reduced value. I have set the value at $15,000 as this seems reasonable; and
(b) Amy states that on valuation date she owed Warren Skinner a debt of $2,839.72 for legal fees incurred on behalf of A.R. in respect of the criminal charges. Stephen testified that he had no notice of this debt, nor is there any evidence that Amy paid the account (to her common law partner). I decline to include same as Amy should have consulted with Stephen (as the expense was incurred during marriage) and it is arguable that he should have been involved in retaining counsel (and choice of counsel) before the expense was incurred. Alternately, the expense could have been paid from A.R.’s passport funding. Moreover, there is no evidence that the debt was repaid. I have not included that item in the NFP calculation.
189As per schedule “A” attached, Stephen owes Amy an equalization of net family property payment in the amount of $93,019.14.
Post-Separation Date Adjustments and Occupation Rent
190Amy seeks a variety of post-valuation date adjustments on account of debts, and expenses that she has incurred, as well as deposits to the joint account.
191Stephen seeks an Order that Amy be solely responsible for all of the mortgage/added line of credit payments that she made following separation, in lieu of occupation rent.
192I am attributing to Stephen a 50% interest in the post-valuation date expenses (except as they relate to the mortgage/added line of credit). The parties benefitted when the family business was successful, and they have struggled with the financial difficulties that followed. Many of the expenses related to the home and its sale are appropriately shared given my finding that Stephen has a 50% interest by way of trust in the matrimonial home. For that reason, the items below will be addressed as follows:
(a) joint credit cards debt on the date of separation, deposits into joint accounts after separation, all interest and other fees – shared equally;
(b) the increased interest and payments, and power of sale legal costs. These were incurred because of Amy’s refusal to sell the home and Stephen’s refusal to cooperate to obtain new mortgage(s) – shared equally;
(c) utilities and refuge bins – shared as requested by Amy;
(d) Motel, additional moving charges and U-Haul expenses. These were incurred because Amy purchased a home with a closing date the same day as the sale of the matrimonial home. She did not disclose the purchase until just before closing, leaving insufficient time to address any issues. As per McGee J., Amy created the emergency that led to the urgent motion. However, Stephen was non-responsive after the Minutes of Settlement were signed which caused a delay in Amy’s ability to close on her new home – shared equally; and
(e) upgrades to property – Amy’s claim includes notional fees that she did not actually incur when her adult son completed some of the work in lieu of the payment of rent. Since there are no receipts to determine exactly what costs were incurred or the value of the son’s work, I have decreased the cost from $30,000 to $25,000 – shared equally.
193I have previously provided reasons for declining to order an adjustment on account of the 6% rate of commission on the sale of the matrimonial home.
194I decline to order that Stephen is liable for 50% of the mortgage or the added line of credit payments made by Amy after separation. If the home had been sold or if it had been rented to third party occupants, Stephen would have had the benefit of a return of his capital or his 50% share of the market rent.
195No party should expect to live for free (or be subsidized by the other except to the extent that support is payable) after a separation.
196Amy resided in the matrimonial home with Warren Skinner and an adult son (who were both working and did not contribute to mortgage) and A.R. (whose ODSP is intended, in part, to be used towards his housing expenses). The total amount paid by Amy (towards the mortgage and added line of credit) is approximately $60,000. She continued to reside in the home from June 2014 to July 2016. Amy expended the sum of $2,400 per month (which I accept is likely considerably less than market rent for a large home, or other reasonable alternate accommodations for four adults).
197As per his closing submissions, Stephen’s claim for occupation rent is actually a request that Amy be solely liable for the payments that she made towards the mortgage and added line of credit, rather than a traditional request for occupation rent.
198In other words, Stephen requests occupation rent in the amount of $1,200 per month on account of his one-half interest in the matrimonial home. His position is reasonable.
199By declining to provide Amy with a post-valuation date adjustment on account of her payments, I am also addressing Stephen’s request for occupation rent.
200But for Amy’s liability for the mortgage (and taxes/insurance) I would order occupation rent for the reasons set out above, and on account of the extended (and expensive) delay to the sale of the matrimonial home. I accept that Stephen meets the test for occupation rent (and co-ownership by way of trust) as set out in the caselaw (see for example, Higgins v. Higgins8, which requires a review of the parties’ conduct, lack of access to equity, attempts to have the home sold and other factors).
201As per schedule “B” attached, Stephen owes Amy funds for various post-separation date adjustments.
Support Issues
202During the trial (and at the motion on July 5, 2019), both parties testified that they are nominally employed.
203Stephen testified that in early 2020 he commenced work as a self-employed home renovation labourer. He proposes that self-employment income be imputed to him of $36,000 per annum, from the date of separation onwards.
204Amy acknowledged that she is income splitting with Warren Skinner and assists him with his legal practice. She proposes that her current income be as declared in her 2020 Income Tax Return, being $16,000. In prior years she suggests that her income be set at 0 to $15,000, depending on the year.
205For the reasons set out below, I am imputing an income to each of the parties, as I find that they were each intentionally under-employed.
206I decline to accept that either of them can rely on the family law litigation as an explanation as to why they have been unable to work. I note that they each had representation for an extended period of time. Even after they were no longer represented by counsel, their decision to focus on the litigation (and waste considerable judicial resources, as well as their own time, energy and costs), is not reasonable. They each had/have an obligation to contribute to A.R.’s support and to support themselves. As set out below, I do accept that Amy’s ability to work has been somewhat limited by her responsibilities to care for A.R.
207Section 19(1) of the Federal Child Support Guidelines, SOR/97-175 reads as follows:
Imputing income
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Stephen’s Income for Support Purposes
208Stephen testified that his current income is $36,000 per year in the form of self-employment income (although his sworn financial statement also lists an annual income of $3,000 or $24,000). Stephen has not undertaken the renovation work since the commencement of the Covid-19 pandemic, notwithstanding that there appears to be a high demand for this work.
209Stephen intends to return to this field once the pandemic is over. He recognizes that self-employed individuals have various expenses that can be added back for support calculations. He did not identify the quantum of cash income he may earn. Stephen’s 2020 income of $34,880 includes CERB, employment income and a withdrawal from his RRSP’s.
210At the July 5, 2019 motion before Macpherson J. Stephen relied on a financial statement sworn February 13, 2019. Macpherson J. stated that it is Stephen’s obligation to prove his income. In his statement he claims no income with yearly expenses totalling $34,680. He claims no income dating back to and including the 2017 taxation year. While Stephen’s sworn financial statement dated May 21, 2021, declares an income of $3,000 or $24,000 or (or perhaps $36,000) depending on how you read it, his yearly expenses are the same as in 2019, being $34,680. Even accounting for his partner’s income of $65,000, it is unclear how Stephen can support himself.
211During his testimony and again during the closing submissions, Stephen stated that the income imputed to him by Macpherson J. on July 5, 2019 of $65,000, may be reasonable or a little high. He testified that following the pandemic he may be able to earn that income. Macpherson J. based his decision on the following findings:
(a) given Stephen’s position with respect to RGI Graphic Services and his lack of income stream for almost three years, the court expected to see significant and sustained efforts to obtain employment. Stephen did not provide evidence of jobs he applied for save and except to state that he sent his resume to Ventura Recruiters in 2017. It is noteworthy that Ventura Recruiters stated that Stephen had a great career to date. No other potential employers were identified. The affidavit of Stephen contained negligible information on attempts to locate employment in 2017, 2018 and 2019. The only conclusion that can be drawn is that he is intentionally underemployed or unemployed;
(b) although Stephen does not have a university degree, he has much experience in operating a business and in graphics. There is no doubt that he could leverage that experience in some capacity. He appears healthy and there is no justifiable reason why, over the past three years, he could not obtain gainful employment in some capacity. Stephen states that he has been consumed with the matrimonial proceedings for the past four years and has no current experience in business or graphics. The lack of evidence in terms of disclosure and in employment job search evidence leads me to conclude that Stephen is intentionally underemployed, and it is not as a result of any educational deficiencies. His lack of disclosure invites an adverse interest in respect of his financial situation;
(c) I have considered the parties’ lifestyle during the marriage. RGI Graphic Services comfortably resourced a family constellation of seven prior to its alleged demise. Granted, Amy provided some input into the earnings; and
(d) I have also considered Stephen’s evidence that the graphics field has changed significantly, his lack of disclosure, and his lack of serious, sustained employment searches.
212Much of Stephen’s trial evidence mimicked what he presented at the July 2019 motion. Stephen provided no job search records or any other evidence aside from his stated intention to be employed as a home renovation labourer.
213Amy’s requested that Stephen be imputed an annual income of $100,000. She acknowledges that Stephen never earned such an income during the marriage (even after adding back her income from their income splitting). However, the requested imputed income amount is based on the advice given to her by her prior counsel, taking into consideration the report (the “income report”) by Matthew Krofchick (the “income valuator”) dated April 8, 2016. Amy’s position is not reasonable. There is no evidence that Stephen has or can earn an annual income of $100,000. Interestingly, Amy’s position as set out in her proposed draft order (which was filed mid-way through the trial) is that Stephen should be imputed an annual income of $65,000.
214In contrast to Macpherson J., I had the benefit of oral testimony in respect of the income report. Stephen did not participate in the analysis of his income, nor did he file a similar report or a critique. The income valuator testified that the analysis is based on a party’s skillset (based on one’s curriculum vitae and employment history) as compared to identified employment positions. Stephen’s employment history from 1986 – 2016 was provided as well as his earnings from 1997 through 2010. A number of occupations in related fields were examined. Relying on census data, the analysis provides a range of incomes. The 2016 report was based on data collected in 2010, which formed the 2011 census. The income ranges are then grossed up to include cost of living increases. To prepare for trial, the income valuator indicated that he reviewed the updated census information (2016 based on data collected from 2015) and grossed up the income amounts to 2021. The data provided in the 2016 report confirms the average full-time, regular employment in related fields was analyzed at $58,391 (and now would be in the low $60,000s) while the average management position was $102,339 (and now would be approximately $110,000).
215The employment positions are as identified by the government from the National Occupations Classification. Stephen objects to same as the position of lithographer continues to be listed, notwithstanding that this position has been eliminated due to significant technological changes. I accept Stephen’s testimony that his expertise in lithography, which formed part of the graphic design process, is no longer relevant. I also accept that the valuation report does not account for Stephen’s age (57), his limited education or the impact of the Covid-19 pandemic on employment opportunities.
216Stephen also objects as the report contains various employment positions that are not relevant to his experience. For example, Stephen states that he was never employed in marketing. I decline to accept Stephen’s testimony in that regard. I find that Stephen opted not to pivot, using his sales, management and marketing skills, after it became apparent that the family business and lithography as a whole was not viable. He also opted not to upgrade his employment skills or re-train.
217Given the nominal revenues from 2014 to 2018 (when it filed for bankruptcy), Steven ought to have secured full-time employment using these skills. He should have focused on the family business on weekends and evenings rather than as a full-time endeavor. Choosing not to secure alternate employment and pivoting to a new field was not reasonable, given A.R.’s ongoing financial needs.
218Having reviewed Stephen’s sworn financial statements, his Income Tax Returns and evidence, and upon review of the income report (which has some value on a limited basis), I find that the income imputed by Macpherson J. is reasonable. Therefore, from the date of separation onwards, I impute an annual income of $65,000 to Stephen. This amount is appropriate and just.
Amy’s Income for Support Purposes
219At the July 5, 2019, motion, Macpherson J. made the following findings:
Amy has not sought employment since the separation over five years ago. She states that she must be available for A.R at all times so that she can be called to provide assistance or if he has escalated in the community; and
I am not convinced that she needs to be available at all times. A.R. is in a day program with skilled and attentive care providers. If she has to be available, she can do so by phone or, perhaps, she can use her skills as a bookkeeper and work from home where she has flexibility. It has been five years since the separation and there is no evidence that she has made any attempt towards self-sufficiency as is required under the Divorce Act. Having regard for the limited career options available to her, her age, her level of education, her previous work history within the family operated business, and her caregiving responsibilities for A.R., I impute income to her, based on part-time work, in the amount of $15,000 per annum.
220The evidence at trial was fundamentally the same as that which was presented in July 2019. Aside from providing legal support to Warren Skinner (in an indeterminate amount), Amy has not sought employment outside of the home.
221In questioning conducted before the trial Amy admitted that, following separation, she requested payment for work based on an annual income of $50,000. She testified at trial that this request was above market rates and was intended to reflect her status as a shareholder (which is a tenuous argument). I am not prepared to find that Amy can earn that annual amount of income for the following reasons: (a) the requested income was likely an inflated amount used to justify a requested payment from Stephen; (b) Amy has responsibilities for A.R. which impede the number of hours that she can work.
222I would have been inclined to impute Amy at an income of $22,500, (for a half-time position based on $45,000), given her bookkeeping skills and her role assisting Warren Skinner with his legal practice. During 2014, 2015, 2016, 2017 and 2018, Amy may have been able to earn more than $20,000, since A.R. was in school/a program full-time.
223However, I am not prepared to vary the temporary order (which imputes an income at $15,000) for the following reasons: (1) since the motion before Macpherson J., Amy was diagnosed with cancer and required various treatments over many months; (2) for an extended period of time in 2020 and again in 2021, A.R. has not been attending the full-time day program at Full Access Network (“FAN”); and, (3) it is unclear when A.R. will return to a full-time program as he was requested to leave the FAN program. There are limited options for a young adult with A.R.’s challenges.
224Therefore, from the date of separation onwards, I impute an annual income of $15,000 to Amy. This amount is appropriate and just.
Child Support and Section 7 Expenses, if Any
225It is not disputed that A.R. continues to be a child of the marriage for support purposes.
226Section 15.1 of the Divorce Act states:
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
227Section 3(2) of the Federal Child Support Guidelines states:
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
228At the date of separation A.R. was 19 years old, and in receipt of ODSP and passport funding on account of his disabilities. Amy currently receives ODSP in the amount of approximately $11,000 per year and passport funding of $35,000 per year to assist with expenses related to caregiver respite, programming, supervision, legal fees and other needs.
229A.R. attended high school until June 2016, and a day program though FAN from 2016 to March 2020 (paused during Covid-19) and July 2020 to March 2021 (when the director concluded that the program could no longer meet A.R.’s needs). As stated above, he is not currently enrolled in a regular day program.
230From June 2014 to July 2019 Stephen made no payments for the support of A.R. He has not had regular access with A.R. since the separation. Amy admits that (other than to prepare for this trial and as set out in the consumer proposal creditor materials) she did not provide Stephen with information about A.R. or his financial needs.
231On July 5, 2019, Macpherson J. made an order after imputing annual incomes of $15,000 to Amy and $65,000 to Stephen. Macpherson J. held as follows:
I have taken into account the circumstances listed in s. 3 (2) (b) of the Child Support Guidelines. A.R.’s needs are significant. Amy has limited ability, based on the imputation of income, to contribute significantly to A.R.’s support. The ODSP payments and the passport funding are insufficient to cover all of A.R.’s needs. A.R. requires financial assistance from his parents. Given the imputation of $65,000 in income to Stephen, he has the means to contribute to A.R.’s care.
232The order requires Stephen to pay the ongoing table amount of $605 and section 7 expenses of $725 per month. Following an email from May 2020, advising Amy that he could not pay the court ordered amounts, Stephen unilaterally reduced the monthly payments to $302.50, rather than take steps to return the matter to the Court. Stephen is in breach of the Macpherson J. order.
233A.R. is now 25 years old. He remains a child of the marriage as a result of his disability. Amy submitted a medical report from Dr. Hill dated February 11, 2019, which is sufficient evidence that he cannot be left alone, and certainly he is unable to earn an income. As a result of a criminal case against A.R., he was referred by the Ontario Court of Justice to the Ontario Review Board (hereinafter “ORB”). The ORB mandates that A.R. be supervised at all times in its reasons dated December 20, 2018. This requirement for supervision continues today. The impact of the Covid-19 pandemic on A.R. has been significant. He has repeatedly called 911 for assistance and has eloped from his program/caregivers.
234In July 2019, the proposed budget for A.R. showed a shortfall of approximately $1,500 per month. Macpherson J. ordered that the shortfall (after deducting the table amount) be treated like a section 7 expense and shared between the parties (19% by Amy and 81% by Stephen).
235Both parties rely on the Court of Appeal decision, Senos v. Karcz, [2014] ONCA 459 (Ont. C.A.). That decision recognizes the need for both parents and society to contribute to an adult disabled child’s support. While it permits a court to find that the table amount is inappropriate, if the ODSP addresses some part of a child’s needs, the Court of Appeal also recognizes that:
“We should not lose sight of the fact that, by definition, ODSP payments are intended to assist people with special needs.” Recipients of ODSP may have special or extraordinary expenses which go beyond what either the Table amount or income support may cover. It is possible, therefore, that the support calculation under s.3(2)(b) will not be less than the Table amount, even taking into consideration the receipt of ODSP (para 73).”
236Having had the benefit of oral testimony and taking into consideration my decision (below) to decline to order section 7 and other expenses, I do not find that the table amount of $605 per month is inappropriate.
237The table amount of support will commence on July 1, 2014 and shall end October 1, 2028 (following Stephen’s 65th birthday). I make this oder recognizing that while A.R. will have financial needs for the rest of his life, Stephen has a limited opportunity to save funds for his retirement, and age 65 is a reasonable retirement date.
238However, I accept that in the context of this case, where the parties have modest imputed incomes, and A.R. has significant (non-taxable funds) the request for a contribution to the “section 7 expenses” does not pass the test of “reasonable and necessary” for the following reasons:
(a) the order for the table amount of $605 per month frees up a portion of the ODSP funding that is intended as a contribution to A.R.’s housing expenses. A.R. resides with Amy such that this amount is a reasonable contribution;
(b) some of the requested expenses, such as mileage when Amy drives A.R. to appointments, are not proper section 7 expenses;
(c) Amy never obtained Stephen’s consent to incur significant section 7 expenses and other expenses. These expenses exceed the $45,000 she receives each year from the government for A.R.’s support. Stephen only learned of the expenses from the consumer proposal and the trial. The shortfall is approximately $15,000 per year;
(d) Amy has never sought Stephen’s consent (or even informed him) of A.R.’s ongoing financial needs. He may or may not have consented to same;
(e) Amy has never prepared a budget for A.R.’s expenses. She incurs expenses as she deems fit;
(f) while Amy placed A.R. on waiting lists for subsidized services when he was 18, she provided no evidence that she has followed up regularly to secure subsidized respite or programming. Perhaps some of the expenses can be reduced;
(g) the practical reality is that this family cannot afford the level of section 7 and other expenses that are being incurred. Post-separation there are two households to support;
(h) some of the expenses are being paid by Warren Skinner. That is another source of funding as he appears to be standing in the role of a parent;
(i) A.R. is an adult child who has repudiated his relationship with Stephen; and
(j) but for A.R.’s repudiation of the relationship, Stephen could have been/could be in the future one source of cost-free respite.
239The support ordered by Macpherson J. is hereby varied as there shall be no retroactive or ongoing section 7 expenses. Stephen will be provided a credit for all amounts paid to date against the $605 per month that I have ordered to commence July 1, 2014. I have calculated the arrears and the sum of $33,414 will be paid from Stephen’s share of the funds held in trust by the real estate lawyer.
240Within 30 days of this decision, Stephen will purchase life insurance in the amount $55,000 as security for his child support obligation. Amy shall be named as the irrevocable beneficiary of the life insurance policy. Stephen shall not encumber or borrow against the policy. If the policy is not in place at the time of Stephen’s death there shall be a first charge against his estate in the amount of $55,000. Stephen shall sign a consent enabling Amy to have access to information in respect of the life insurance policy.
241I am not ordering Stephen to contribute to M.’s section 7 expenses that were incurred during the four months immediately following the separation. Stephen provided evidence that he contributed to the wisdom teeth extraction. Stephen has made no claim for child support or section 7 expenses for M., notwithstanding that he resided with Stephen (when not away at university) until 2019.
Spousal Support, if Any
242Amy seeks an order for spousal support on a compensatory and non-compensatory basis. As stated above, I have found that Amy was the primary caregiver to the children (including three young children that she brought into the relationship and two biological children). I have also found that Amy was primarily responsible for the household. She did improve her employment skillset during the marriage by becoming the family business’s bookkeeper.
243Stephen objects to an order for spousal support as he believes that the parties were jointly responsible for the household and children, and Amy has the capacity to earn a significant income ($50,000) but refuses to do so. Alternately, Amy should be attributed a part-time income of approximately $36,000 per annum.
244Macpherson J. declined to order spousal support at the motion heard on July 5, 2019. He concluded that no spousal support had been ordered in the five years since separation, and held that the issue was best left to the trial judge.
245Section 15.2 of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp), states:
Spousal support order
15.2 (1) 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 sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(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.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made 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; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 1997, c. 1, s. 2.
246Sections 29 and 30 of the Family Law Act, R.S.O. 1990, c.F.3, as am., state:
Definitions - “spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years.
Obligations of spouses for support – Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that she or he is capable of doing so.
247The merits of Amy’s claim for spousal support as set out in the facts summarized above, lead me to conclude as follows:
(a) Stephen became financially responsible for Amy and her children almost immediately after her separation from her prior spouse. By the same token, Warren Skinner became financially responsible for Amy, on or around the time that he moved into the matrimonial home (six months after separation). As stated earlier, the family business was struggling at the time of separation and Stephen paid no child or spousal support, nor did he contribute to the matrimonial home expenses;
(b) Stephen was advantaged by Amy’s roles as a primary parent/household manager although Stephen was an actively engaged parent who worked from home when the children were young;
(c) Amy developed bookkeeping skills during the marriage;
(d) on an imputed income of $65,000 to Stephen and $15,000 to Amy, Stephen has a limited ability to pay spousal support after the table amount of $605 is paid on a monthly basis;
(e) following the parties’ separation over seven years ago, Amy took no steps to re-train (if needed) or return to the workforce even though A.R. was in school full-time;
(f) at the time of separation, and thereafter, both parties had financial need and a limited/no ability to pay as they (unreasonably) opted not to work. This decision impacts each party’s needs/ability to pay calculus;
(g) Amy is working part-time for Warren Skinner, a practicing lawyer, although it is unclear what roles she is performing or how many hours she works;
(h) at the motion before Macpherson J. Warren Skinner’s three year income averaged at $100,000. The current income is lower, however, I have no evidence about the personal expenses that may be deducted, and there is income-splitting between the parties. Moreover, I have no evidence as to whether Warren Skinner is intentionally underemployed or if his reduced income relates to the Covid-19 pandemic. Either of these reductions may be resolved shortly;
(i) the only available evidence of Anne’s income, (Stephen’s common law spouse,) is that her 2018 income was $65,000;
(j) after three years of cohabitation with Warren Skinner (November 2017 onwards), Amy could/can claim spousal support from him in the event of a breakdown of their relationship; and
(k) the economic benefits of a payee’s second relationship may be taken into account in assessing a dependant’s need for support (see for example, Davies v. Davies, 2003 SKCA 91 (C.A.)). Warren Skinner has historically earned a higher income that Stephen’s actual or imputed income. Amy lists no living expenses on her Financial Statement sworn May 1, 2021. Warren Skinner is solely supporting Amy (although I accept that she has historically dissipated RRSPs/investments to bridge the gap of A.R.’s expenses and to contribute to the mortgage and other expenses).
248For the reasons set out above and below I am awarding transitional support for the period of time that Amy was not Warren Skinner’s spouse for support purposes.
249While I have imputed a modest income to Amy for the purposes of the support calculation, I find that if she was motivated to work longer hours in the field of bookkeeping or as a support person to lawyer, she could earn a higher income. She has failed to contribute to her own support (or made any reasonable attempt to attain self-sufficiency). I recognize that Amy is now 60 years of age.
250As stated previously, Stephen is 57 years of age. He has no “nest egg”, considerable debts and a consumer proposal (that may affect his credit rating).
251I also recognize Stephen’s limited ability to pay spousal support, and the limited funds that he will receive in respect of the property issues. Most of the funds currently held in the real estate lawyer’s trust account will be paid to Amy on account of property, child support and spousal support arrears.
252I am awarding lump sum support (not taxable to Amy and not tax deductible to Stephen) for a 3.5 year duration. I am ordering the mid-range of support with the mid-point of after tax cost/benefit. The sum of $60,060 will be paid from Stephen’s share of the funds held in trust by the real estate lawyer.
Costs
253I have previously directed the parties to deliver their bills of costs, however, to date neither party has filed same. I note as follows:
(a) based on the facts set out above, the prior costs orders, the 49 volumes of the Continuing Record and the numerous court attendances, I have no doubt that the parties incurred significant legal, accounting and other fees during the past 6 years of litigation;
(b) various judges have made recommendations for mediation, mediation/arbitration, and the need to narrow the issues in dispute. They have also raised concerns about the wasted fees. For example, in 2019, Jarvis J. stated that costs incurred are not reasonable or proportionate to this case (or the funds available) and are based on unreasonable positions, steps and actions/inactions taken by each of them;
(c) if and when the parties are unable to resolve the issue of costs, I will consider the findings of fact set out above. I will consider whether each party’s costs are reasonable and proportionate to the issues in this case and the funds that are in dispute. I will consider their respective actions/inactions, positions, incurring of expenses and other relevant factors. I will consider offers to settle;
(d) I will not award costs for steps where costs have already been ordered, or for steps where no costs were ordered (unless costs were deferred to the trial judge);
(e) There has been divided success at this trial; and,
(f) I may or may not order that any costs be payable by either of them.
CONCLUSION
254During much of the parties’ 22 year marriage, the family was like a Jenga board at the start of a game, a tower made of many pieces that stands strong and stable. However, in the early years there were at least four de-stabilizing forces; (a) A.R.’s birth, a child who required more time, attention and funds than a typically developing child; (b) the 2007 incident that lead to criminal charges against Stephen (for which he was found not guilty at trial); (c) the parties’ first separation, the commencement of family litigation and legal fees, and, (d) the realization in 2007 that Amy was not making HST payments on a timely basis.
255In a Jenga game each de-stabilizing force is represented by a piece that is removed from the tower. When the parties reconciled in 2008, the family was relatively stable as only a few pieces had been removed. The family business continued to operate (which was stabilizing), however, Amy describes a history of family violence (which was de-stabilizing).
256The Jenga Tower grew less stable following a series of events that took place in years leading up to the final separation in 2014 (and beyond). Much of the de-stabilization to the family and the family business was caused by one or both of the parties’ actions/inactions, the impact of raising A.R. and market forces. These have been described in detail throughout these reasons.
257What is the natural consequence of a Jenga Tower whose pieces have been removed? It crashes down. All that is left is a pile of pieces that signify the remnants of what once existed but is no longer. The same is true for this family.
258If and when A.R. is prepared to have a relationship with Stephen (if Amy supports same and A.R.’s treating professionals provide guidance as to how to facilitate a relationship in a safe and positive manner), perhaps something can be salvaged from the wreckage. Perhaps not.
259I suspect that the adult children, the prior legal counsel, the third party professionals and the parties would cite regret over the downfall of this family, if asked for their opinions. There are no winners but only losers here. This case highlights the challenges faced by the family justice system, the inexplicable waste of judicial (public) resources, and the parties’ financial and emotional resources. The only redeeming factor to this case is that it is now over.
ORDER TO GO AS FOLLOWS:
- As per the draft order signed by me this day. A summary of key points set out in the order are as follows:
(a) the real estate solicitor is directed to release the sum of $65,000 to Joanne Russo on account of the trustee and legal fees arising from the consumer proposal and the bankruptcies;
(b) the real estate solicitor is directed to withhold the sum of $40,000 ($20,000 on behalf of each party), in respect of any capital gains arising from the sale of the commercial property;
(c) the real estate solicitor is directed to release to Amy the balance of the funds held in trust ($415,251.47);
(d) the release of the funds to Amy are on account of the following: the equalization of net family property; post-valuation date adjustments; retroactive child support and arrears; and, a partial payment towards lump sum spousal support;
(e) Stephen shall be liable to pay the sum of $42,764.55 for the outstanding lump sum spousal support by December 25, 2021 (180 days);
(f) commencing July 1, 2021, and on the first day of every month thereafter, Stephen shall pay the sum of $605 per month for the table amount of child support, based on an imputed annual income of $65,000. The child support shall terminate on September 30, 2028;
(g) there are orders relating to financial disclosure, child support adjustment, life insurance, the consumer proposal and bankruptcies; and
(h) all other claims made by Amy pursuant to her Fresh as Amended Application dated March 31, 2017 and made by Stephen in his Amended Answer dated April 10, 2016 are hereby dismissed.
SDO to issue.
The parties are directed to take steps to resolve the issue of costs. Failing an agreement respecting same, Amy shall serve and file in the written submissions limited to three pages, exclusive of the bill of costs (removing all steps and any preparation where costs have been ordered or the court declined to address the issue of costs) and offers to settle, within seven days of the date of this decision. Stephen shall serve on Amy and file in the Continuing Record his written submissions, limited to three pages, exclusive of the bill of costs and offers to settle, within seven days thereafter. There shall be no right of reply. If no submissions are received within the time period set out herein, there will be no costs.
Justice A. Himel
Date: June 28, 2021
Schedule “A” - To Robertson Reasons
ONTARIO
Court File Number
Superior Court of Justice, Family Court
(Name of Court)
at
Form 13B: Net Family
Property Statement
(Court office address)
Applicant(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Amy Florence Robertson
Respondent(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Stephen James Robertson
Children’s Lawyer
Name & address of Children’s Lawyer’s agent for service (street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any)) and name of person represented.
My name is (full legal name)
The Court
The valuation date for the following material is (date)
June 3, 2014
The date of marriage is (date)
May 23, 1992
(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND
Nature & Type of Ownership (State percentage interest)
Address of Property
APPLICANT
RESPONDENT
Matrimonial Home
100% - 116 Willow Lane Farm, Aurora, ON
$829,000.00
$829,000.00
- Totals: Value of Land
$829,000.00
$829,000.00
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
Item
Description
APPLICANT
RESPONDENT
Household goods
& furniture
Cars, boats,
2002 Audi A4 Sedan (est.)
$3,500.00
vehicles
2007 Tahoe LTZ (est.)
$15,000.00
Boat – 1987 custom checkmate 18 foot skiboat with a 200 Black Max Mercury engine
$3,500.00
Jewellery, art,
electronics, tools,
sports & hobby,
equipment
Other special
items
- Totals: Value of General Household Items and Vehicles
$0.00
$22,000.00
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
Category (Savings, Checking, GIC, RRSP, Pensions, etc.)
Institution
Account Number
APPLICANT
RESPONDENT
Savings
Scotiabank - Joint
**2
$2,464.67
$2,464.67
Scotiabank with A.R.; Joint used exclusively by me
**8
$2.30
RBC: with A.R.; Joint (was LEO account, belongs to her)
**7
DOS: $0.25
RBC: with M.R.; Joint (was LEO account, belongs to him)
**3
DOS: $393.23
RBC - US
**4
$0.00
$0.00
RBC TFSA (Dec 31-14)
$103.45
RRSP
London Life (June 30-14)
**9
$32,433.16
CI Investments – Sunlife re Clarica (June 30-14)
*500
$24,608.63
Scotia Itrade (June 30-14)
*-10
$33,063.00
Hollis Wealth (June 30-14)
*C
$34,656.03
Hollis Wealth (June 30-14)
*C
$49,521.73
Hollis Wealth (June 30-14)
**C
$77,588.00
CI Investments
**0
$30,089.95
Scotiabank (June 30-14)
**C
$8,588.43
London Life (June 30-14)
**4
$38,424.00
Checking
RBC – Joint (-$885.04)
**2
($442.52)
($442.52)
RBC: A.R. (Joint belongs to him)
*12
DOS: $100.35
- Totals: Value of Accounts And Savings
$176,410.45
$156,712.53
PART 4(d): LIFE AND DISABILITY INSURANCE
Company, Type & Policy No.
Owner
Beneficiary
Face Amount ($)
APPLICANT
RESPONDENT
SunLife
Applicant
Ruth Stevens in trust for A.R.
$60.22
SunLife
Respondent
Applicant
$9,797.83
- Totals: Cash Surrender Value Of Insurance Policies
$60.22
$9,797.83
PART 4(e): BUSINESS INTERESTS
Name of Firm or Company
Interests
APPLICANT
RESPONDENT
RGI Graphic Inc. (owns Robertson – Christoff)
50% each (net proceeds of sale of 305 Industrial Parkway before capital gains)
$138,377.58
$138,377.58
RGI Graphic Services Inc.
50% - Bankrupt
- Totals: Value Of Business Interests
$138,377.58
$138,377.58
PART 4(f): MONEY OWED TO YOU
Details
APPLICANT
RESPONDENT
- Totals: Money Owed To You
$0.00
$0.00
PART 4(g): OTHER PROPERTY
Category
Details
APPLICANT
RESPONDENT
- Totals: Value Of Other Property
$0.00
$0.00
- VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])
$1,143,848.25
$1,155,887.94
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
Category
Details
APPLICANT
RESPONDENT
Mortgage
Matrimonial Home ($184,342.72) – 50%
$87,171.36
$87,171.36
Added line of credit (used to fund business) ($238,531.23) – 50%
$119,265.62
$119,265.62
Income Tax
Estimate (actual pay out $50,472.76 for the Applicant)
$48,000.00
$93,000.00
Credit Cards
RBC Royal Preferred - Joint ($5,232.61)
$2,616.31
$2,616.31
Scotiabank Passport – Joint ($9,148.42)
$4,574.21
$4,574.21
Royal Classic Avion
$10,029.51
PC MasterCard
$3,232.91
Home Depot
$4,484.88
HBC
$3,725.88
Capital One – Joint ($9,148.41)
$6,769.45
$6,769.45
Line of Credit
RBC: for D.R. with the Applicant and Respondent as co-signers; D.R.’s responsibility DOS: $4,600.00
Outstanding Bills
Camp
$1,270.00
Notional Costs of Disposition
Home ($1,658,000 x 6% + 13%)
$56,206.20
$56,206.20
Legal Fees
$1,500.00
$1,500.00
Capital gains on 305 Industrial Parkway – 50%
TBD
TBD
RRSP @20% $174,282.55/$208,612.11
$34,856.51
$41,722.42
MH Property Taxes (est.)
$10,172.55
$10,172.55
- Totals: Debts And Other Liabilities, (TOTAL 2)
$393,875.39
$422,998.12
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
Category and Details
APPLICANT
RESPONDENT
Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation).
$372,000.00
General household items and vehicles
$9,000.00
$3,000.00
Bank accounts and savings
Life and disability insurance
Business interests
Money owed to you
Other property
3(a) TOTAL OF PROPERTY ITEMS
$381,000.00
$3,000.00
Debts and other liabilities (Specify)
$160,000.00
NCD includes legals
$14,880.00
3(b) TOTAL OF DEBTS ITEMS
$174,880.00
$0.00
- NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)
$206,120.00
$3,000.00
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”
Item
APPLICANT
RESPONDENT
Gift or inheritance from third person
Income from property expressly excluded by donor/testator
Damages and settlements for personal injuries, etc.
Life insurance proceeds
Traced property
Excluded property by spousal agreement
Other Excluded Property
- TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)
$0.00
$0.00
TOTAL 2: Debts and Other Liabilities (item 23)
$393,875.39
$422,998.12
TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)
$206,120.00
$3,000.00
TOTAL 4: Value of Excluded Property (item 26)
$0.00
$0.00
TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)
$599,995.39
$425,998.12
APPLICANT
RESPONDENT
TOTAL 1: Value of Property Owned on Valuation Date (item 22)
$1,143,848.25
$1,155,887.94
TOTAL 5: (from above)
$599,995.39
$425,998.12
TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)
$543,852.86
$729,889.82
EQUALIZATION PAYMENTS
Applicant Pays Respondent
Respondent Pays Applicant
$0.00
$93,018.48
Signature
Date of signature
Footnotes
- Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28.
- R.S.O. 1990, c.F.3, s. 5(1).
- Ward v. Ward, (2012) 2012 ONCA 462, 111 O.R. (3d) 81 (Ont. C.A.) at para. 25.
- Serra at para. 41.
- 2011 SCC 10 at para. 32.
- 2015 ONCA 578.
- Smith v. Smith, 2012 ONSC 1116, at para. 23.
- 2001 CanLii 28223 (Ont. Sup. Ct).