COURT FILE NO.: FC-06-558-03

DATE: 20210611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Robert McCallum

Applicant

– and –

Kristi Seguin

Respondent

Katherine M. Stasiak, for the Applicant

S. Nadine Finbow, for the Respondent

HEARD: June 1, 2, 3, 2021

REASONS FOR DECISION

Justice V. Christie

Overview

[1] The parties cohabited, steadily, for approximately nine years, including just over four years of marriage. They have one child together, a son, Ethan William Robert Seguin McCallum (“Ethan”), who is now 15 years old.

[2] This application commenced in February 2019. Since that time, some of the issues have resolved, including parenting issues and child support. The matters remaining to be determined at this trial were as follows:

1. Entitlement to and quantum of spousal support from the Applicant to the Respondent – both retroactive from the date of separation and ongoing;

2. Requiring the Applicant to designate the Respondent as irrevocable beneficiary of a life insurance policy to secure his support obligations;

3. Determining the proportionate share of retroactive and ongoing s. 7 expenses for the child of the marriage;

4. Equalization of net family property;

5. Prejudgment / post judgment interest; and

6. Costs

[3] The parties also jointly request a divorce.

Background Facts

[4] The Applicant is almost ten years older than the Respondent. They met in 1999, when they both worked at Honda of Canada.

[5] They began a relationship in November 2004. The Respondent learned that she was pregnant about a month into the relationship, in late 2004 or early 2005.

[6] In or around March 2005, the Respondent purchased a home in Wasaga Beach. She cashed in $18,000 of her RRSP to buy that home. In April 2005, the Applicant moved into the Respondent’s home.

[7] In May 2005, the Respondent experienced complications with her pregnancy, was listed as high risk, and instructed to go on sick leave from work. At that time, the Respondent went on short term disability and was receiving 80% of her pay from June to August 2005.

[8] On August 16, 2005, Ethan was born.

[9] The Respondent was on maternity leave for one year following Ethan’s birth, from August 2005 to August 2006. After Ethan was born, the parties struggled with their relationship.

[10] In March / April 2006, the parties separated. The Applicant moved out of the home. The Applicant testified that the first separation was in late 2005, however, this court accepts the Respondent’s evidence as she appeared more certain of the timing. The parties agreed that Ethan continued to reside with the Respondent.

[11] The Respondent commenced an application in April 2006 seeking joint custody (as it was then known), primary residence, and child support.

[12] The Applicant purchased a home on May 12, 2006, located at 43-51st Street South, Wasaga Beach, for a purchase price of $215,000. Title to the house has always been in his name alone. This would later become the matrimonial home.

[13] The parties began dating again in August 2006 but continued living separately while they worked on their relationship. The Respondent and child would stay with the Applicant on weekends and return home during the week. The court application was withdrawn on August 29, 2006.

[14] In August 2007, the parties moved back in together at the matrimonial home. The Respondent’s mother also moved into the basement of the home to help with finances and assist with Ethan. By this time, the Respondent had returned to work at Honda of Canada.

[15] In the fall of 2007, the Respondent was placed on sick leave due to mild scoliosis, leaving her with pain in her upper back, neck and shoulders. She received short term disability for a brief period.

[16] In December 2007, the Respondent sold her Wasaga Beach home.

[17] In February 2008, the Respondent returned to work at Honda of Canada.

[18] Around this same time, February 2008, the relationship again developed difficulties. The Respondent began looking for a new home and eventually found a home to purchase in Barrie with a nanny suite so that her mother could move in and assist with Ethan as she was working shift work.

[19] In July 2008, the Respondent moved out of the matrimonial home with Ethan and into her own home in Barrie. The Respondent’s mother moved in to assist.

[20] On September 18, 2008, the Respondent suffered a fall at work and was rushed to the hospital. It was determined that she had a skull fracture and a 4 cm blood clot in her brain. She was hospitalized for a few days. The Respondent remained off work for a period of six weeks following the fall. During this time, she received short-term disability.

[21] While the Respondent was hospitalized, the Applicant reported concerns relating to the Respondent’s parenting of Ethan to the Children’s Aid Society. The Society investigated and closed the file with no concerns.

[22] The Respondent started another family court application on October 28, 2008, requesting custody, supervised access for the Applicant, child support and a restraining order, among other things.

[23] On March 24, 2009, the parties reached a settlement in the family court application. Mulligan J. ordered that the Respondent have sole decision-making for Ethan, and the Applicant would have specified access in accordance with a specific schedule. Also, the court ordered the Applicant to pay table child support in the amount of $647.00 per month based on an annual income of $70,000.

[24] On April 22, 2009, the Respondent accepted a Special Voluntary Separation Opportunity (“SVSO”) buyout from Honda of Canada. The Respondent stated that she accepted the buyout for a number of reasons, but primarily because she wanted to spend more time with Ethan. After taking the SVSO buyout, the Respondent continued to work at Honda until approximately June 2009. As a result of this buyout, the Respondent received a lump sum of $25,000 and severance of $8,330 before taxes. As demonstrated in documentation, with this money, the Respondent made a payment to her CIBC Visa of $13,809.97 and her TD Visa of $2,300. In addition, the Respondent also received 52 weeks of severance, paid weekly in the amount of $1,288 before taxes. Further as a result of the buyout, the Respondent’s pension had to be transferred out and it was transferred into a Locked-in Retirement Account (“LIRA”) at Sunlife.

[25] The Respondent did not work between June 2009 and December 2010.

[26] Following their separation in July 2008, the parties began to date again in June 2009. The Applicant believed that the reconciliation occurred in March 2009, however, given the timeline set out and the timing of the Minutes of Settlement, this court accepts the evidence of the Respondent as to the date of reconciliation.

[27] In August / September 2009, the Respondent and Ethan moved back into the matrimonial home at 43- 51st Street South, Wasaga Beach. The Applicant believed that the date of recommencing cohabitation was later, as the Respondent was back and forth between her house and his house, and that Ethan started kindergarten in September 2009 in Barrie. Again, this court accepts the evidence of the Respondent that the parties began to live together again in August and that Ethan commenced kindergarten in September at St. Noel Chabanel Catholic School in Wasaga Beach.

[28] The Respondent rented her home in Barrie. The Respondent also had her own vehicle at that time.

[29] Ethan started playing hockey in or around 2010 when he was 5 years old.

[30] The Respondent returned to work full-time in December 2010 when she commenced an administrative role with CITI Financial in Midland. In June 2011, she reduced her hours to part-time in order to be home with Ethan during the summer school break. She continued part-time until August 2011. The Applicant believed that this was in 2012, but this court believes he was mistaken as the Respondent appeared more reliable on this point given what was going on in her life in 2012.

[31] On June 6, 2011, the Applicant and Respondent traded in the Respondent’s 2010 Ford F-150 for a 2010 Chevrolet Silverado. They received $24,000 in trade-in allowance, however, according to the bill of sale, most of this money went to pay off the balance owing on that vehicle. The net amount to be financed on the Silverado was $41,389.27. The truck was put in the Applicant’s name.

[32] In early January 2012, the Respondent was diagnosed with a rare and aggressive form of breast cancer. On January 25, 2012, she had a right mastectomy, and, approximately six weeks later, commenced several weeks of chemotherapy. In July 2012, she started 6 weeks of radiation.

[33] The Applicant claims that he assisted the Respondent with her needs during this time, including changing dressings, drains, and giving Neupogen shots. The Court accepts the Applicant’s evidence. The Applicant also testified that he shared in caring for Ethan at that time. The court accepts that the Applicant was doing what he could given his work schedule.

[34] In August 2012, the Respondent withdrew $12,000 from her LIRA.

[35] In September 2012, the Respondent qualified and began receiving permanent CPP disability. The first payment was made on September 7, 2012 in the amount of $5,083.52, backdated to January 2012.

[36] In March 2013, the Respondent had a preventative left mastectomy.

[37] Ethan started playing competitive hockey when he was 8 years old, around 2013, and has played competitive hockey continuously since that time.

[38] In September 2013, the Respondent sold her Barrie home, and received proceeds of $61,724.29. She used the proceeds to pay down credit card debt for her and the Applicant, a $3000 payment to the Applicant’s TD line of credit, towards the parties’ wedding, renovations on the matrimonial home, a family loan in the amount of $11,000, and $27,657.85 to pay off the loan on the 2010 Chevrolet Silverado.

[39] The Respondent did not work outside the home from August 2011 to spring 2014. According to the Applicant, the Respondent worked for another cleaning company in 2013, however, the Respondent adamantly denied this given her health at the time. Given the events at that time, this court accepts the Respondent’s evidence on this point.

[40] On April 25, 2014, the parties were married in Wasaga Beach and then had a wedding ceremony in the Dominican Republic during a one-week trip.

[41] In May 2014, the Respondent began doing cleaning jobs with a partner. She registered a business in September 2015 called, A Personal Touch.

[42] The Applicant stated that the Respondent worked full time and was busy. He said that she would leave around 8 a.m. and would come home late at night. He also indicated that she worked Monday to Friday and sometimes weekends. He was not sure of her annual earnings. The Respondent also continued to receive CPP disability benefits. The Applicant claims that the financial contribution during the relationship was 50/50. He paid for such things as the mortgage, property taxes, Ethan’s expenses, and trailer fees, while the Respondent contributed to the RRSP loans, personal loans, Ethan’s expenses, utility bills, cell phones, and trailer fees. In the view of the Applicant, they contributed equally to joint expenses.

[43] In 2015, the Respondent was diagnosed with rheumatoid arthritis. Despite this diagnosis, the Respondent has been able to continue with her physically demanding work by managing her own schedule.

[44] By 2017, the relationship was having some difficulties. The couple tried marriage counselling in the fall of 2017, but ultimately that did not keep their relationship together.

[45] The Applicant and Respondent separated on July 4, 2018, although they continued to reside in the matrimonial home until January 18, 2019, when the Respondent and Ethan vacated the home. Both parties described this time as tense and awkward. According to the Applicant, he never asked the Respondent to leave the matrimonial home, however, the Respondent disagreed with this and testified that he was demanding that she leave.

[46] Either way, the Respondent left the home with Ethan and moved in with friends, Alf and Leslie Anderson, from January 18, 2019 until she moved into her own rented home on or around January 26, 2020. The Respondent took couches, a table set, and workout equipment with her when she left the matrimonial home. The Respondent claims that she stayed with the Andersons longer than expected as she could not afford the added expense of a home for her and Ethan. The Respondent paid monthly rent of $400 per month. It is of note, however, that the Respondent stated that she saved money during this time.

[47] A few months after moving to the Anderson’s home, the Respondent began a relationship with Adam Anderson. Adam Anderson is the son of Alf Anderson from a previous marriage. Facebook posts confirm that the relationship had begun by June 2019. It is true that in the Voice of the Child Report, Ethan confirmed that he and the Applicant began living with Adam Anderson and his parents once they left the matrimonial home. This is denied by the Respondent and she claimed that Adam Anderson did not live with Alf and Leslie Anderson. It is the view of this court that the comments by Ethan are inadmissible hearsay and cannot be considered for the truth. Frankly, not a lot turns on the timing of this relationship.

[48] On July 14, 2019, the Respondent returned to the matrimonial home to pick up some further belongings.

[49] The Respondent became common law with her current partner, Adam Anderson, on February 1, 2020, when he moved in with the Respondent and Ethan. Mr. Anderson contributes 35% to the household bills.

[50] The Applicant claimed that his relationship with Ethan was very close throughout the relationship. When the Respondent was ill, he stated that he and Ethan did a lot together.

[51] Ethan has resided with the Respondent since she and Ethan moved out of the matrimonial home on January 18, 2019.

[52] Ethan is currently in grade 10 and attends Collingwood Collegiate Institute.

[53] Ethan now makes his own decisions regarding exercising parenting time with the Applicant. Both parties agreed that Ethan and the Applicant have not seen each other since Father’s Day 2020.

Procedural History of this Application

[54] After the Respondent left the matrimonial home on January 18, 2019, the Applicant commenced an application on February 13, 2019. At the same time, he brought an urgent motion, without notice, seeking for Ethan to reside primarily with him and for a retraining order. Simultaneously, the Applicant reported issues to the Children’s Aid Society.

[55] The Applicant’s urgent motion was adjourned to allow for notice and an opportunity for a response. The motion was heard by McDermot J. on March 11, 2019. At the time, the Applicant was on stress leave from work. The Society ultimately found no child protection concerns and this was brought to the attention of the Court. McDermot J. ordered, on a temporary basis, that primary residence of the child was to remain with the Respondent, and a parenting time schedule was developed. A Voice of the Child report was also requested. When it came to submissions on costs, counsel for the Respondent (not present counsel at this trial) indicated:

…So she has a partner she works with, but between the two of them, they generate approximately $500 on a full work day of cleaning homes. And she informs me that they’re normally fully booked, with no issues. So we would ask for costs on a substantial indemnity basis in the amount of $4000.

The Respondent testified that she did not instruct her counsel in this respect and that she terminated her counsel following this, however, she made no attempt to correct this submission to the Court.

[56] On August 26, 2019, the parties reached temporary minutes of settlement that were turned into an order by Eberhard J. The court made orders with respect to disclosure, child support to be paid by the Applicant in the amount of $570.00 per month, the parties to consult with each other prior to making major decisions in relation to the child’s health, education and general welfare, the Applicant’s parenting time remained as ordered by McDermot J. on March 11, 2019, the Applicant was to obtain a valuation of his pension at his expense, and there was to be an appraisal of the matrimonial home. The matters of s. 7 expenses, decision-making, parenting time, child support, spousal support and property were then adjourned to a settlement conference on December 11, 2019.

[57] On December 11, 2019, the parties reached final minutes of settlement on several issues relating to disclosure, child support (the Applicant was ordered to pay $794.00 per month based on his 2018 income of $85,266), retroactive payment of child support was set at $5,254 to be paid at the rate of $100 twice per month, joint decision making, primary residence with the Respondent, and a parenting time schedule was established. The issues of spousal support, life insurance and the appropriate proportionate share of retroactive and ongoing s. 7 expenses remained outstanding.

Further Issues Resolved

[58] Prior to the commencement of this trial, the parties resolved further issues by way of final minutes of settlement. Those resolved issues are, in summary, as follows:

1. The Applicant will maintain Ethan as beneficiary of any medical, extended health and dental coverage available to him through his employment;

2. The parties agreed upon things that qualify as section 7 special and extraordinary expenses; and

3. The parties agreed to share Ethan’s section 7 special and extraordinary expenses proportionate to their incomes.

Position of the Parties

[59] Both parties agreed that the Applicant must make an equalization payment to the Respondent. Both have provided Net Family Property statements and the totals differ by just over $10,000. Both parties also agree that, on top of the equalization payment, the Applicant also owes the Respondent a post-separation adjustment amount of $2,267.46, due to payments that she continued to make after separation.

[60] The Applicant submitted that there should be no spousal support on any basis, whether compensatory or non-compensatory, as the Respondent has not established an entitlement to same and the Respondent earned and earns higher income than what is being declared. With respect to life insurance, the Applicant agrees to having the Respondent as the beneficiary on a policy with a face value of no less than $50,000 for as long as he has a child support obligation. As for retroactive and ongoing section 7 special and extraordinary expenses, the Applicant is willing to pay his proportionate share, but asks this court to calculate and impute a truer income to the Respondent. The Applicant also asks for costs.

[61] The Respondent seeks compensatory and non-compensatory retroactive (to the date of separation) and ongoing spousal support in the mid to high range based on the Applicant’s 2020 income, as reflected in his Notice of Assessment, and the Respondent’s 3 year average income from 2017-2019 in addition to her CPP disability income; subject to variation on a material change. The Respondent requests that the arrears of spousal support be paid in a lump sum with no tax consequences or benefits. As for the life insurance policy, the Respondent submitted that this should be in place to cover both spousal and child support. With respect to s. 7 expenses, the Respondent submitted that she has been completely forthright and that the proportionate share of such expenses should be based on the same calculation as spousal support. Finally, the Respondent requests prejudgment and post judgment interest and costs.

Credibility of the Parties

[62] This court had some concerns with the reliability and credibility of both parties.

[63] As for the Applicant:

1. He denied knowing that the Respondent started a court application in 2006, of which he was clearly aware;

2. He claimed that counsel for the Respondent stated in correspondence that the Respondent instructed her clients to pay by cash or electronic money transfer. This is not what the correspondence stated, and the Applicant agreed in cross-examination that the letter did not state what he had suggested;

3. The Applicant claimed to be unaware that the Respondent withdrew money from her LIRA in August 2012, however, his signature was on the Low Income Financial Hardship Application for 2012 at Exhibit FF to the Respondent’s affidavit;

4. There were several discrepancies in his various sworn financial statements;

5. The Applicant’s affidavit contained a statement at paragraph 43 that the Respondent received “54 cash deposits” in the 2015 calendar year to her personal account. When questioned during cross-examination, the Applicant agreed that statement was not accurate;

6. When the Applicant was questioned about his statement that he did not benefit from the proceeds of the sale of the Respondent’s home in 2013, the Applicant confirmed that $3000 was transferred to his TD Line of Credit ending in account number ***076 on the date that the proceeds of sale were deposited into the joint bank account ending in ***449. The Applicant, initially, refused to admit that the bank draft made out to RBC Auto, the day following the deposit of the proceeds of sale of the home, in the amount of $27,650.35 went towards paying off the outstanding financing on the Silverado, however, eventually admitted that it did.

[64] With respect to Exhibit R to the Applicant’s affidavit, this court did not find this to be an inconsistency. It is the view of this court that the Applicant never suggested that he found this document, rather he stated that he found the client list upon which he created this document. While the wording of the affidavit is a bit confusing, this court accepts the Applicant’s testimony that he never intended to suggest that he found this document as opposed to created this document.

[65] Further, with respect to whether the Applicant provided for the Respondent and Ethan during the marriage or whether the parties contributed equally to the finances and expenses, it is the view of this court that these things are not necessarily contradictory. The Applicant could easily have seen himself as “providing” for the family without demanding contribution, while, at the same time, the Respondent was contributing. Further, even though the Respondent’s employment status changed throughout the years, she had various sources of “income”, as set out in the background facts above, that allowed her to contribute.

[66] Finally, with respect to how long the Respondent lived in the matrimonial home, it was the view of this court that the Applicant simply misspoke when he said five years.

[67] As for the Respondent,

1. She refused to disclose her hourly rate, number of cleans, and frequency of cleans earlier in these proceedings, citing privacy concerns. However, it would seem obvious that this information could be easily provided without disclosing a client’s identity;

2. She denied that some of the entries on her 2017 calendar were her entries, specifically those that refer to cash, even though she admitted that she received cash from time to time;

3. She denied that the client list found by the Applicant was hers, even though the entries on the list seemed to be familiar to her;

4. She did not correct the information put before the Court back in March 2019 that she and her partner were earning $500 per day;

5. She was mostly unwilling to admit anything good about her relationship with the Applicant or the role he played as a partner or father, contrary to the various Facebook posts throughout 2013, 2014, 2015, 2016, and 2018 (Exhibit 55).

Income of the Parties

[68] The Applicant is employed, on a rotating shift schedule, as a manufacturing associate with Honda of Canada. For many years, he has worked two-week rotating shits, meaning that during the first two-week period, he works the day shift from 6:30 a.m. to 3:00 p.m. and then, during the second two-week period, he works night shifts from 4:30 p.m. to 1:00 a.m. This is the Applicant’s only source of income.

[69] The Applicant’s annual income from 2015 to 2020, according to his Notices of Assessment and T4s, were as follows:

• 2015 - $87,063

• 2016 - $81,436

• 2017 - $80,801 (Exhibit 40)

• 2018 - $85,266 (Exhibit 41)

• 2019 - $95,769 (Exhibit 42) (which included $21,589.80 in RRSP withdrawals)

• 2020 - $95,427 (which included $15,000 in RRSP withdrawals) (Exhibit 43 and 44)

[70] The Applicant also included three pay stubs for 2021 which were as follows:

• Pay period ending April 11, 2021 - $1395.14 (Exhibit 45)

• Pay period ending April 18, 2021 - $1462.18 (Exhibit 46)

• Pay period ending April 25, 2021 - $1396.32 (Exhibit 47)

[71] The Applicant’s income has fluctuated somewhat over the last three years, especially given that he has added to his income through RRSP withdrawals. It is the view of this court that the RRSP income is still income and must be considered as such. See: Bordin v. Bordin, 2015 ONSC 3730, at paras. 85. However, this court is willing to take an average of the last three years in order to reach a fairer calculation. See: Bordin v. Bordin, at para. 86. Therefore, the Applicant’s income is determined to be $92,154 (the average of income for 2018, 2019, and 2020).

[72] As for the Respondent, between 2009 and the date of separation, her work history was as follows:

1. Between June 2009 and December 2010, the Respondent did not work, but rather chose to be at home with Ethan. While Ethan was at school during the day, she studied for the Canadian Securities Course. However, the Respondent was continuing to earn income. As a result of accepting the SVSO buyout from Honda, the Respondent received a lump sum of $25,000 and severance of $8,330 before taxes. In addition, the Respondent also received 52 weeks of severance, paid weekly in the amount of $1,288 before taxes. Further as a result of the buyout, the Respondent’s pension was transferred into a LIRA at Sunlife.

2. In addition to the income from the buyout, from August / September 2009, when the Respondent and Ethan moved back into the matrimonial home, until the house was sold in September 2013, the Respondent received rental income from her house in Barrie.

3. In December 2010, the Respondent began working at CITI Financial in Midland, earning approximately $13.00 per hour. She worked full time during the school year, however, in June 2011, she reduced her work to part-time in order to be home for Ethan in the summer, as the expense of daycare did not make sense to her given her income. The employment ended in August 2011.

4. In August 2012, the Respondent withdrew $12,000 from her LIRA.

5. In September 2012, the Respondent qualified and began receiving permanent CPP disability. The first payment was made on September 7, 2012 in the amount of $5,083.52, backdated to January 2012.

6. In September 2013, the Respondent sold her Barrie home, and received proceeds of $61,724.29. The profits were used as financial contributions to the family unit.

7. In the spring of 2014, the Respondent commenced cleaning homes with a business partner and they ultimately registered a business in September 2015. She has been self-employed in this business ever since. Most recently, the partnership has dissolved, and she is in the process of starting a business of her own. The Respondent and her business partner have divided the regular clients and are dividing any new clients. Assets of the business have also been divided. The business accounts remain open until they have paid the HST to CRA.

It is clear and obvious from this chronology that the Respondent has never been without an income throughout these years and continues to run her own business, in addition to receiving regular and permanent CPP disability.

[73] The Respondent’s reported income for tax purposes in previous years is as follows:

• 2015 - $14,122 - the business income is noted as gross $7,690 and net -838.28, therefore, the bulk of this income was CPP benefits.

• 2016 – $21,653 - $13,285 in CPP disability income and the remainder in self-employment income.

• 2017 - $27,143 - $13,471 in CPP disability income and the remainder in self-employment income.

• 2018 - $25,889 – this was made up of $13,673 in CPP benefits, $1,112 in RRSP income, and $11,104 in net business income (gross of $31,400)

• 2019 - $34,641 – this was made up of $13,988.40 in CPP benefits, $1,112 in RRSP income and $19,541.78 in net business income (gross of $56,206.44)

• 2020 – taxes for 2020 are not yet complete, however, according to the financial statement sworn May 12, 2021, the Respondent reports self-employment monthly income of $2,000, before taxes and expenses, and $1457.31 in CPP benefits, leading to a total of $41,487.72 projected for the year.

[74] The starting point for determining income is the line 150 income reported by the parties in accordance with Section 16 of the Federal Child Support Guidelines. However, the Respondent submitted that her income should be calculated as her CPP disability in 2019, plus an average of her net self-employment income in the years 2017, 2018 and 2019 pursuant to section 17 of the Federal Child Support Guidelines and relying on Bordin v. Bordin, para. 86.

[75] The Applicant has not explicitly pleaded for this court to impute income to the Respondent. However, this court does need to determine the true income of the parties in order to consider the issue of spousal support and proportionate share of s. 7 expenses. Section 19(1) of the Federal Child Support Guidelines provides the Court with jurisdiction to impute income to a spouse if the Court deems it appropriate in the circumstances. In this case it is necessary given that spousal support and proportionate share of s. 7 expenses are both at issue and a failure of the court to consider true income may amount to a calculation that is unfair.

[76] The court in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), para. 23, set out a three-part analysis that must be undertaken before the Court imputes an income under section 19(1)(a) of the Federal Child Support Guidelines, which is the same analysis that can be applied where the issue is spousal support:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the reasonable educational needs of the spouse?

3. If no, what income is appropriately imputed in the circumstances?

The onus is on the party seeking to impute income to the other to establish an evidentiary basis for such a finding. See also: Homsi v. Zaya, 2009 ONCA 322, 2009 O.J. No. 1552 (C.A.), para. 28.

[77] In Hathway v. Hathway, 2017 ONSC 3490, the court imputed minimum wage income to the spousal support recipient wife. The Court relied on Drygala and stated:

[65] If a spouse has made an unreasonable choice to earn less than he/she is capable of earning, the spouse is deemed to be intentionally under-employed. The issue then becomes whether the fact that the spouse is earning less income than he/she is theoretically able to earn resulted from actions that were both voluntary and reasonable.

[66] When an employment decision results in a significant reduction of support by the payor, or a significant increase in need for spousal support by the recipient, it needs to be justified by compelling evidence. It must be reasoned, thoughtful, and highly practical.

[68] In assessing how much income to impute to a spouse, the court must have regard to the payor’s, or payee’s, capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities, and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.

The court inferred from the fact that the wife had remained self-employed for five years that the income that she had earned was at least equal to what she could earn elsewhere at minimum wage employment, and imputed the minimum wage to her over a 36.4 hour work week.

[78] In Anslow v. Anslow, 2017 ONSC 7518, the court was determining the husband’s income from self-employment. The court found that it was appropriate to use the wife’s proposed imputed income for the husband based on the demonstrated level of need, the amounts that the husband had paid to date, and the failure of the husband to provide precise evidence of his income. The motion judge in this case did not have evidence about the husband’s reputation as a hair dresser, what he charged, what hours he worked, how many chairs he had, what services he provided, or the number of clients he had, in order to determine whether the self-declared income on his tax returns was accurate.

[79] In Gogas, v. Gogas, 2011 ONSC 4571, the wife ran a jewelry making business and worked periodically at a banquet hall. Healey J. suspected that the wife’s income was greater than she had disclosed. As Healey J. was unable to determine the wife’s true income, the Court turned to an analysis of the wife’s income earning capabilities to determine her income for spousal support purposes. At para. 41:

[41] The respondent is not likely to ever achieve economic self-sufficiency because of the impact of the marriage on the development of her job skills, yet she is not unemployable. She obviously has some aptitude for computers and is creative. The stress that she and her physicians refers to appears to be in great part related to this litigation, which is now at an end. The order that I am making will require her to find employment or turn her current business into a profitable venture if she wishes to maintain her current lifestyle.

[80] In Bath v. Bath, 2010 ONSC 1630, Spies J. considered a claim by the wife that she was unable to work due to medical issues. The court found that the claimant did not provide adequate proof to support her contention that she was unable to work (para. 87).

[81] In Soares v. Machado, 2017 ONSC 743, the court considered the fact that expenses which had been deducted ought not to have been deducted and the court imputed a higher income.

[82] In the case at bar, the Respondent claimed that most of her clients pay by e-transfer, with those funds being deposited directly into the business account. In addition, they also receive some cash and cheques which, according to the Respondent, are deposited into the same account.

[83] The Respondent admitted in her affidavit that when her and her partner started the business, they were taking money out sporadically because they were not making much, however, as the business started to grow, they started to pay themselves from the business account. Beginning in 2016, they started to pay themselves on a more regular basis, withdrawing the same amount on alternating Fridays. The Respondent also admitted that they would employ a third person on a part-time basis to assist them.

[84] This court does not accept that the imputed income that the Respondent has been earning through her business I,s necessarily, at least equal to, if not more than, the income she had previously earned through prior employment, such as Honda. However, it is worth noting that the Respondent has never earned minimum wage and has conceded that her hourly rate is at least $30 per hour. The Respondent’s spending and standard of living do not appear to be impacted based on her financial statement.

[85] It is the view of this court that the Respondent likely makes more from her business than what has been reported. This is based on the following:

1. Submissions made to the court on March 11, 2019 – The Respondent argued that submissions are not evidence. This court accepts that submissions are not evidence. However, the fact that it was submitted by counsel, with no clarification from the Respondent, leads this court to believe that the Respondent did not take issue with this submission at the time, leading this court to question the Respondent’s evidence as to her income at that time;

2. Unwillingness to provide information about her business such as, an hourly rate, number of clients, and number of cleans – It is true that as stated in Kovachis v. Kovachis, 2013 ONCA 663 at para. 34 that “exhaustive disclosure may not always be appropriate” and that issues of burden, relevance, costs and time must be considered. However, the unwillingness of the Respondent to provide an hourly rate, list of clients and number of cleans was not due to these reasons, rather she cited privacy concerns. This information could have been disclosed while still respecting privacy concerns;

3. Lack of evidence with respect to deducted expenses – On the record presented at this trial, this court is unable to conduct any analysis as to whether the significant expenses claimed are appropriate.

4. Motivation to carry on with this business on her own – Based on the fact that the Respondent has carried on this business for 7 years and intends to continue a similar business as a sole proprietor suggests to this court that the business is more successful than suggested.

[86] If this court is wrong about the actual earnings of the Respondent, then this court finds that the Respondent is, by choice, under employed. She has chosen to only work certain days and certain hours in order to achieve a work-life balance. Her business provides her with the flexibility to work hours suitable to her at a significant hourly rate, which she can fluctuate depending on the nature of the work.

[87] Many years ago, the Respondent chose to open a business in a physically demanding industry, despite her stated health limitations. The Respondent suggests that her medical issues restrict her from working full time. However, the Respondent commented, on numerous occasions, that Ethan was her priority, and that she had adjusted her work schedule throughout the years to ensure that she was available to him. There has been no medical evidence presented to suggest that the Respondent is unable to work full time. The Respondent wishes to be with Ethan as much as possible. She is clearly a very involved parent, including in relation to Ethan’s extra curricular activities. The Respondent was intimately familiar with all details of Ethan’s life. It is clear that the Respondent and Ethan have a very close bond and that the Respondent consistently places Ethan as her top priority. The Respondent has made a choice to spend her time with Ethan as opposed to working full-time. The Respondent has also made a choice to take time to focus on her own well-being as opposed to working full-time. There is absolutely nothing wrong with making these choices. It is to be commended and respected. However, it is not that the Respondent is unable to work more. In her profession, she made it clear that she can work as often as she wants and on the schedule she wants. The court must consider this when determining whether to impute income.

[88] Accordingly, the Respondent’s income will be imputed as follows:

• $30 per hour for 8 hours per day = $240. (This is roughly in accord with the submissions made on the record in March 2019.)

• 5 days per week

• The court has assumed 48 weeks per year, in other words 4 weeks of vacation

• The court has also allowed for $10,000 worth of expenses – given that the expenses are not clearly known.

for a total of $47,600 per year.

[89] Therefore, the Respondent’s annual income, after adding $1,457.31 per month for CPP benefits, as reflected on her financial statement, is imputed as $65,000.

Spousal Support

[90] In this case, the court could derive its statutory authority to order spousal support from the Divorce Act and/or the Family Law Act.

[91] Under section 15.2(4) of the Divorce Act, the factors the court shall take into consideration are the “condition, means, needs and other circumstances of each spouse”, including:

1. The length of time the spouses cohabited;

2. The functions performed by each spouse during cohabitation; and

3. Any order, agreement or arrangement relating to support of either spouse.

[92] Pursuant to section 15.2(6) of the Divorce Act, the objectives of a spousal support order are:

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.

[93] Similarly, pursuant to section 33(8) of the Family Law Act, the purposes of an order for support of a spouse should:

1. Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

2. Share the economic burden of child support equitably;

3. Make fair provision to assist the spouse to become able to contribute to his or her own support; and

4. Relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home)

[94] When considering these factors, the courts have been clear that no single objective is paramount and that the factors should all be considered. See Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.J. No. 107 at para. 52 and 85; Racco v. Racco, 2014 ONCA 330 at para. 23.

[95] As for the factor of economic hardship, the court in Moge stated as follows at para. 73 and 112-114:

[73] The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in my view, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse. Significantly, it recognizes that work within the home has undeniable value and transforms the notion of equality from the rhetorical status to which it was relegated under a deemed self-sufficiency model, to a substantive imperative. In so far as economic circumstances permit, the Act seeks to put the remainder of the family in as close a position as possible to the household before the marriage breakdown...

[112] Parties sometimes argue that the economic disadvantage of their spouse was not caused by the marriage or its breakdown, or that her economic hardship was not caused by the termination of the marriage…

[113] A formalistic view of causation can work injustice… Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant, unless the parties acted unreasonably or unfairly...

[114] Similarly, in determining whether economic hardship of a spouse arises from the breakdown of the marriage, the starting point should be a comparison of the spouse’s actual situation before and after the breakdown. If the economic hardship arose shortly after the marriage breakdown, that may be a strong indication that it is caused by the family breakdown. Arguments that an ex-spouse should be doing more for herself must be considered in light of her background and abilities, physical and psychological…

The Court shall analyze the entitlement to spousal support on a case-by-case basis. See also: Thompson v. Thompson, 2013 ONSC 5500 at para. 50; Fisher v. Fisher, 2008 ONCA 11 at para. 53.

[96] The Supreme Court of Canada, in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, recognized three conceptual grounds for entitlement to support: (1) compensatory; 2) contractual; and (3) non-compensatory. In the case at bar, the Respondent requests both compensatory and non-compensatory support.

[97] Under the heading of compensatory support, the court must look at the economic circumstances of each spouse’s role during the marriage. Moge and Bracklow set out some examples of compensatory support, such as:

1. A spouse’s education, career development or earning potential have been impeded as a result of the marriage because of such things as withdrawing from the workforce to provide child care, frequent moves to permit the other spouse to pursue opportunities, or loss of job advancement due to absence from the workforce for family reasons; or

2. A spouse has contributed financially either directly or indirectly to assist the other in his or her education or career development;

[98] The basis for compensatory support is that, upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. A compensatory award recognizes the sacrifices, contributions and benefits which often lead to interdependency between the spouses. See: Thompson v. Thompson at para. 55. In determining whether compensatory entitlement exists, the court should undertake a broad analysis and consider all of the advantages and disadvantages experienced. See: Kinsella v. Mills, 2020 ONSC 4785 at para. 97.

[99] As for non-compensatory support, a support obligation may arise from the marriage relationship itself when a spouse is unable to become self sufficient. It can be based on need or on the recipient’s ability to become self sufficient for reasons such as health.

[100] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which they were accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support themselves, in light of income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.

[101] On its own, a mere disparity of income does not automatically lead to entitlement, although a disparity of income may lead to a finding that there is an economic hardship arising from the breakdown of the marriage. See: Berger v. Berger, 2016 ONCA 884. However, there must be some evidence that the disadvantage to the recipient spouse arises from the breakdown of the marriage as opposed to something else. See: Lamb v. Watt, 2017 ONSC 5838.

[102] In McIntyre v. Winter, 2020 ONSC 4376, the court held at para. 52, “Where a spouse maintains a similar standard of living to that enjoyed before separation, there is no basis for a needs-based, non-compensatory claim for support”. However, the court went on to explain the concept of “need”. At para. 54, the court stated:

[54] The word “need” is not limited to one’s basic needs. It can be interpreted to cover situations where a spouse suffers a significant decline in the standard of living, he or she enjoyed during the relationship. Nixon v. Lumsden, 2020 ONSC 147.

[103] The parties in this case cohabited for nine years, from 2009 to 2018, including a four-year marriage. This is not considered to be a short period of time as the Applicant suggested.

[104] The Applicant has maintained a fairly consistent salary throughout. There was no exorbitant lifestyle enjoyed at any point in time by either party, whether before during or after the relationship. The Respondent has maintained the same level of success with her career following separation, in fact the evidence would suggest that it has continued to improve over the years. There is no evidence that the Respondent suffered any economic disadvantage following separation. She lived with friends with little to no expense and saved money during that time. The Respondent is in a similar position now and this will improve upon equalization, while the Applicant has had, roughly, the same income and will have to incur further debt to make the equalization payment.

[105] While this court accepts that the Applicant participated in the parenting of Ethan and household responsibilities when available to do so, it is the view of this court that his time was somewhat limited as compared to the Respondent who has clearly been the primary caregiver for Ethan from his birth to present.. The Applicant has consistently maintained fulltime employment, whereas the Respondent has not worked outside of the home continuously throughout the cohabitation / marriage. She terminated her employment with Honda of Canada in 2009, she did not work again outside of the home until December 2010, which only lasted until August 2011, some of which was part time, and then did not work again outside of the home until 2014 when she started her own cleaning business. As for the cleaning business, it was difficult to know how much time the Respondent spent away from the home with this work, however, this court accepts that with traveling and the work itself it would have taken her away from the home a fair amount, at least when the business was getting started. However, as previously stated, the Respondent is able to control the volume of her work and she actively does so. It is of note, however, that despite her changing employment status, the Respondent has always maintained an income. The Respondent has co-owned and operated a business for seven years. It is only logical to infer that the business is profitable as the Respondent is still pursuing this line of work on her own now that the partnership is dissolving. While the Applicant has contributed financially on a more consistent basis, given the regularity of his work and income, there is no question that the Respondent also financially contributed significantly to joint expenses. The parties mutually benefitted from their roles during the relationship at different times.

[106] Even accepting that the Respondent took on more responsibilities with Ethan and the household, the Respondent does not argue that such responsibilities negatively impacted her career goals and aspirations or advanced those of the Applicant. Neither party contributed to the other’s continued educational pursuits or passed on professional advancements. The Applicant’s career was the same throughout the relationship. While the Respondent’s career did change, this was not as a result of her marriage or any decisions within the marriage. At various times, the Respondent had health issues that needed to be addressed. The Respondent was able to stop working and focus on her health and family due to the fact that the Applicant was continuing to earn a stable income. Currently, the Respondent attempts to achieve a work-life balance through controlling her own hours and work schedule. The Respondent’s choice to achieve this work-life balance is perfectly valid, but this should not create an entitlement to spousal support. In Bracklow, the Court made an order for spousal support as the claimant was sick and unable to work following the breakdown of the marriage. This is not the case here.

[107] The Respondent’s current means meet her needs in that she is self-sufficient. The Respondent is able to meet her basic expenses and support a reasonable standard of living based on income earned from her business and CPP benefits. The Respondent, if not actually earning, is certainly capable of earning an income comparable to the Applicant. The Respondent has the ability to adjust her income by taking on more or less clients or by adjusting her rates, all things within her full control.

[108] Having considered the financial arrangement of the parties during cohabitation, and what they can reasonably except after separation, this court is satisfied that the Respondent is in a similar position, or at least will be after equalization. There were no decisions made in the interests of the family which have disadvantaged the Respondent or benefited the Applicant upon breakdown of the marriage. The Respondent was free to make choices about her work throughout the marriage, and she made choices on a number of occasions to allow her to take care of her health issues and to take the primary role in caring for and being present for Ethan. There was no suggestion that the Applicant played any part in these decisions, rather the Respondent was free to make these decisions as she felt necessary. The Applicant, on the other hand, continued his employment at a steady pace and steady income despite the Respondent’s employment status.

[109] The Respondent is in exactly the same position now as she was in 2014 when she started her cleaning business. She still has a cleaning business. She still controls the schedule and volume of her work, while prioritizing her time with Ethan. While the Respondent claims that her medical issues affect her ability to work more often, it is this court’s impression that it is not the medical issues that are causing the Respondent to reduce her work, but rather her desire to have a more equalized work life balance and to maximize her time with her son. Despite her health issues, the Respondent has shown an ability to continue to do this very physically demanding work since 2014.

[110] It is the view of this court that the Respondent did not give up any career or suffer any economic disadvantage as a result of the marriage. She was never encouraged to stay home to care for Ethan, rather this was her desire. She made various choices that have suited her wishes and needs at the time. The Respondent has had the flexibility to both work and then start her own business during the marriage. The Respondent’s earning capacity was not restricted by the marriage but rather by her health and own choices made within that marriage. She has an obligation to maximize her current earning potential and any order should encourage her to do so.

[111] Even after an imputation of income, there is an income disparity between the parties. However, income disparity alone is not sufficient to warrant a spousal support order in this case.

[112] The onus is on the Respondent to prove her entitlement to spousal support. The Respondent has not satisfied this court that she is entitled to an order for spousal support.

S. 7 expenses

[113] The Applicant and Respondent agree that they should both contribute a proportionate share to Ethan’s expenses, and they have agreed, in final minutes of settlement, as to the types of expenses covered. The Applicant and Respondent also agree that there are retroactive expenses for which the Applicant owes a proportionate share. This court, however, must determine the appropriate proportionate share based on the relative incomes of the parties.

[114] This court has already determined, above, the income of the parties:

1. The Applicant’s income is determined to be $92,154 (the average of income for 2018, 2019, and 2020).

2. The Respondent’s income is imputed as $65,000.

Therefore, the proportionate share is 60% for the Applicant and 40% for the Respondent.

Life Insurance to Secure Support

[115] This court has the ability to make an order to secure support pursuant to the Family Law Act and specifically section 34(1)(k). Further, section 15.2(1) of the Divorce Act has been interpreted to provide authority to courts to make the same Order. See Katz v. Katz, 2014 ONCA 606 at para. 73.

[116] The Applicant agrees to maintain a life insurance policy with the Respondent as the beneficiary in the minimum amount of $50,000 to secure his child support obligation. Given the age of Ethan and the amount of support being paid, this is an appropriate amount to protect the support obligation.

Equalization

[117] Each party has filed a Net Family Property Statement, and both agreed that the Applicant owes the Respondent an equalization payment. In addition to the amounts calculated in the Net Family Property Statements, the parties agreed that there needs to be an adjustment, as following separation, the Respondent continued to make payments on the Applicant’s TD RRSP loan in the amount of $59.67 per week up until March 2019. Therefore, the Respondent is entitled to an additional $2,267.46.

[118] As for land, the property located at 43 – 51st Street, Wasaga Beach, Ontario is owned solely in the name of the Applicant. This is the matrimonial home. The value of the matrimonial home as at date of separation was $450,000 pursuant to an appraisal completed by Hutchesson Appraisals on October 17, 2019. The appraisal has been marked as Exhibit 2. The parties accept this appraisal as the value. Further, the Applicant submitted that the current value of the house is believed to be $510,000 and relies on a Purview Broker Report dated October 2, 2020 which reported the estimated value to be $501,400.00 (Exhibit 4 – Purview Broker Report). There did not appear to be any disagreement from the Respondent.

[119] As for general household items and vehicles, the parties agreed as to the value of a 2016 utility trailer at $1,880. The parties disagreed about the following general household items and vehicles:

1. Household items – the Applicant stated that the items have been divided. The Respondent asserted that there are a number of her belongings remaining at the matrimonial home including the items listed in Schedule A – no value was provided;

2. Valuation of the 2010 GMC Chevrolet Silverado – $20,822.27 (Applicant); $21,062.50 (Respondent);

3. Valuation of 2016 Honda Side by Side 700 (sold Oct 12, 2018 for $8,000) - $8,000 (Applicant); $12,186.72 (Respondent);

4. Valuation of 2011 Trailmaster Travel Trailer (sold June 16, 2020 for $11,000) - $11,909.61 (Applicant); $18,890.00 (Respondent)

Therefore the difference in general household items and vehicles is $54,019.22 (Respondent) minus $42,611.88 (Applicant), leaving a difference of $11,407.34.

[120] As for the household items, these items should be returned if still available. The Applicant made no argument with respect to these items. The Respondent appears to have a personal connection to each of the items listed, and /or the items belong to others. Having said that, over two years have passed since the Respondent left the matrimonial home. These items may no longer be available and certainly may not be in the same condition as the Respondent last saw them. The parties are to negotiate, in good faith, to ensure that these items are returned, if possible, in the best condition possible.

[121] As for the valuation of the Chevy Silverado, the Applicant has provided an undated “Used Car Depreciation Schedule” from a website https://goodcalculators.com/car-depreciation-calculator/. (Exhibit 6) This court was not given any further information as to the nature and reliability of the information on this site, although the Applicant did confirm in his testimony that the website asked for the make and model of the vehicle. On the other hand, the Respondent has provided information from http://www.canadianblackbook.com/ dated July 2, 2018 which indicates the make, model, and body style of the truck and values the truck at $21,062.50 (averaging the low and high range). (Exhibit NN to her affidavit marked as Exhibit 49). It is the view of this court that the Respondent’s valuation would appear to be more reliable in terms of true value at the date of separation.

[122] As for the valuation of the travel trailer, neither the Applicant not the Respondent provided reliable evidence of the value at the date of separation. The Applicant provided a one page print out from a website called https://thecampingnerd.com/rv-depreciation-method/ (Exhibit 7). This suggested that the value of the trailer in 2018 was $11,909.61, however, there is no indication on this page as to what was searched and when it was searched. This court also has no idea what condition this particular travel trailer was in at the date of separation. Further, this court was not provided with any information as to the nature and reliability of this source. On the other hand, equally unhelpful, the Respondent provided an undated Kijiji ad for a trailer advertised in Edmonton Alberta for $18,990.00. (Exhibit PP to the Respondent’s affidavit marked as Exhibit 49) The ad indicated that it was posted on Kijiji since March 2015 which makes this court question the date of this particular ad. One would not think that this ad was still up in 2018, although it is possible. It is also not clear whether this is the same trailer, given that it is a 2011 Gulfstream Trailmaster 265BHS, and the travel trailer involved in this litigation is described in the sales contract as a “Gulf Stream Coach”, “Trailmaster 3”. Given the uncertainty of this evidence, the only fair thing to do is to value this trailer in the middle of the two values provided at $15,500.

[123] With respect to the ATV, the Applicant provided a BMO Transaction Record dated October 12, 2018 which showed a deposit of $8000. (Exhibit 16) He has testified that this was payment for the ATV when it was sold only a few months after separation. The Respondent’s evidence on the valuation is an undated ATV Trader ad for various Honda Side by Side vehicles. (Exhibit OO to the Respondent’s affidavit marked as Exhibit 49) This court is unable and unwilling to rely on the evidence provided by the Respondent given that it is not clear when this ad was obtained and, therefore, how old the advertised vehicles were at the time of sale. It is also unclear as to the condition of the ATV in this case or the mileage on the vehicle. Given the uncertainty of the Respondent’s evidence, this court is prepared to accept the Applicant’s valuation of the ATV at $8000.

[124] The only difference with bank accounts, savings, securities and pensions was that the Respondent subtracted the overdraft on the TD Canada Trust Account ***449 from her total. The Applicant carried this into debt and divided the debt equally. The Applicant acknowledged during his testimony that this account was used solely by the Respondent. Therefore, the subtraction of this amount from the Respondent’s savings is the correct way to calculate this amount.

[125] As for debts, the parties only disagreed on the following items:

1. Mortgage on the matrimonial home – difference of $2,292.15

2. TD Visa ***6941 – difference of $27.62

3. RBC loan on travel trailer – difference of $21.64

[126] As for the total mortgage at date of separation, the Applicant relied on an Amortization schedule printed on March 17, 2016, two years prior to separation. (Exhibit 5) While this court accepts that the amortization schedule relates to the property in question, this is an anticipated balance based on expected payments. This is not necessarily a true reflection of the balance at date of separation. The Respondent on the other hand relied on a text message from the Applicant dated August 8, 2018, a month after separation which indicated the mortgage balance to be $235,768. (Exhibit XX to the Respondent’s affidavit marked as Exhibit 49) It is clear from the mortgage documents presented by the Respondent that payments of $355.92 were being made weekly at that time, therefore, five payments would have been made following the date of separation to the time of this text message. It is unclear what portion of the payments go to principal versus interest. Having considered the evidence presented, the most reliable evidence that this court has is the amortization schedule, showing the anticipated balance owing on the date of separation as that submitted by the Applicant being $240,224.71.

[127] As for the TD Visa ***6941, the statement provided by the Applicant ended on July 9, 2018, five days after separation. (Exhibit 23) Therefore, if the charges after July 4 are removed, the total is $3,443.34 (misstated by the Respondent in her NFP as $3,543.34)

[128] As for the RBC Travel Trailer Loan ***9988, the Applicant has provided an annual statement from RBC showing the opening and closing principal balance of the loan in 2018. (Exhibit 25) However, it is not clear what the amount would have been on July 4, 2018. The Respondent used the amount of $20,194.13 as being the opening principal balance that year. The remaining loan could not have been more than this, in fact would likely have been less. Therefore, this amount will be used for the calculation.

[129] With respect to Part 6 – Valuation on Date of Marriage, this court has made some adjustments based on documents provided. The Respondent’s breakdown is more detailed and easier to follow, therefore, those numbers were used, with some adjustments:

1. The black book value of the Silverado in 2014, finding the mid range between low and high, is $24,362.50 (Exhibit III to the Respondent’s affidavit marked as Exhibit 49)

2. The value of the travel trailer was arrived at by finding the midpoint between the price of goods purchase price ($21,000) and the date of separation valuation which amounted to $18,250.

3. As for the value of the Respondent’s assets at date of marriage, there was not a lot of discrepancy, therefore, this court will accept the net value of property owned on date of marriage as $16,000.

[130] With these adjustments made, the Applicant will owe the Respondent an equalization payment of $123,480.42, in addition to the $2,267.46 for a total of $125,747.88

Prejudgment and Post judgment interest

[131] The Respondent seeks prejudgment and post judgment interest on the equalization payment.

[132] In Van Delst v. Hronowsky, 2019 ONSC 2569, the court considered whether a spouse can claim pre-judgment interest against the other for the time leading up to trial. Similar to the case at bar, the parties in Van Delst had managed to resolve some of the legal issues but differed about the valuation of certain items for the purpose of equalization. The court observed that pre-judgment interest is allowed for in the Court of Justice Act, however also recognized the courts discretion. Pre-judgment interest was ordered.

[133] The Applicant has enjoyed exclusive possession of the matrimonial home to the Respondent’s detriment from January 18, 2019 to present. The Respondent initially resided with friends and has now moved into a leased home. The Respondent requires the equalization payment in order to contribute toward the purchase of a new home. However, at this time, the Respondent finds herself in the midst of a real estate market which has seen significant increases in the price of homes, certainly as compared to the market at the beginning of 2019. Seemingly, the Applicant has always recognized that a sizable equalization payment was owed, in fact, the parties were not that far apart on the amount. It is of note that delays have occurred in this case that were beyond the control of either party given the COVID-19 pandemic.

[134] Having considered the circumstances of this case, pre-judgment interest on the equalization payment, prior to adjustment, is warranted from the date the litigation commenced to the date of the first scheduled trial management conference on April 24, 2020. Post judgment interest is also warranted.

Conclusion

[135] There will be an order to go as follows:

1. The issues of health insurance for the child, Ethan, and ongoing section 7 expenses proportionate to the parties’ incomes are finalized in accordance with the Final Minutes of Settlement dated May 28, 2021.

2. The Respondent’s claim for retroactive and ongoing spousal support is dismissed.

3. The Applicant will make an equalization payment to the Respondent in the amount of $123,480.42 in addition to a post-separation adjustment of $2,267.46 for a total of $125,747.88.

4. As much as reasonably possible, the Applicant shall return all items listed in Schedule A to the Respondent’s Net Family Property Statement, forthwith, and in the best condition possible.

5. The Applicant shall maintain the Respondent as beneficiary on his life insurance policy with a face value amount of no less than $50,000, to secure his child support obligations, for as long as the child support is owed to the child.

6. The Applicant earns approximately 60% percent of the combined income of the parties. This is based on his annual averaged gross income being $92,154.

7. The Applicant shall reimburse the Respondent for 60% of the retroactive extraordinary expenses submitted during this trial in the amount of $3,382.08; in other words, shall reimburse 60% of this amount.

8. The Applicant shall reimburse the Respondent for 60% of the child’s future extraordinary expenses.

9. There will be pre-judgment interest on the equalization payment of $123,480.42, in other words, prior to adjustment, owed to the Respondent from the date the litigation commenced being February 13, 2019 to the date of the first scheduled TMC /TSC on April 24, 2020, inclusive of both days, at the rate of 2%.

10. There will be post-judgment interest on the equalization payment, as adjusted, at the rate of 3%.

11. Either party is free to apply for an uncontested divorce with proper documentation.

12. If the parties are unable to agree as to costs, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, which may be delivered to the court by email at BarrieSCJFamily@ontario.ca, with a copy to my assistant bev.taylor@ontario.ca, no later than June 18, 2021.

Justice V. Christie

Released: June 11, 2021