COURT FILE NO.: FS-13-385391
DATE: 20210615
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zahra Outaleb, Applicant
AND:
Muhammad Eric Waithe, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Victoria Boger Mull, for the Applicant
Respondent, In person
HEARD: In writing, June 7, 2021
REASONS FOR DECISION
M. Kraft, J.
Nature of Proceedings:
[1] The parties were married on November 24, 1990 They separated on September 29, 2012.
[2] The parties have four children of their marriage, namely, Raheem Waithe, born February 2, 1992 (29 years old); Saffiyya Waithe, born January 22, 1994 (27 years old); Sarah Waithe, born March 30, 1996 (24 years old) and Adam Waithe, born February 23, 1009 (22 years old).[^1]
[3] The applicant (“wife”) is 63 years of age and the respondent (“husband”) is 64 years old.
[4] This matter proceeded by way of an uncontested trial. The wife seeks the following orders:
a. The husband to pay the wife child support arrears, fixed in the sum of $53,726.26;
b. The husband to pay the wife spousal support arrears, fixed in the sum of $74,068;[^2]
c. The husband to pay prospective spousal support to the wife in the sum of $1,726 a month, commencing July 1, 2021;
d. The husband to pay the wife an equalization payment of $268,410;
e. The husband to satisfy the payments referred to in subparagraphs a., b. and d. as a direct rollover from his Bell Canada pension into a pension in the wife’s name held by Bell Canada Pension Plan, or out of the proceeds of sale from the sale of the matrimonial home; and
f. Costs.
[5] I have considered the extensive material filed in support of the uncontested trial and the oral submissions made by both parties.[^3] I reserved my decision. These reasons set out my findings and disposition of the matters at issue.
Litigation History
[6] The wife commenced this Application on March 20, 2013. The husband filed an Answer on November 28, 2013.
[7] On April 16, 2014, the parties attended a case conference before Horkins, J., at which she made the following order:
a. The husband was to serve and file a form 35.1 affidavit;
b. The husband was to pay child support for two children of the marriage, namely, Sarah and Adam, in the sum of $1,072 a month, based on his 2012 income of $72,517.83, as reported in his income tax return. This was without prejudice to the wife’s right to seek past outstanding child support and support for the two children in university;
c. The husband was to produce to the wife his T4 for 2013 and his 2013 income tax return and Notice of Assessment as soon as it was available, with the child support to be adjusted according to his 2013 Line 150 income;
d. The husband was to provide written confirmation that the wife is still covered by his medical and dental insurance plans;
e. The husband was, within 10 days, to provide the wife with written confirmation regarding the status of his request to value his pension at Bell and to advise as to the status of the pension valuation;
f. Counsel for both parties were to send a letter to Ansar Financial and Development Corporation/Ansar Cooperative Housing Corporation Limited, a copy of which was attached as an Appendix to the Endorsement, the purpose of which was to value the husband’s shares in the co-op townhouse (the matrimonial home) and to determine the process for the transfer of shares in the co-op from the husband to the wife (if required by the parties or ordered by the court); and
g. The parties were to attend a settlement conference on July 16, 2014.
[8] On January 18, 2017, a case conference was held before Horkins, J., at which she made the following order, which was to be completed by February 28, 2017:
a. The parties were to agree on the calculation and value of the retroactive child support that had not been paid;
b. The husband was to produce all documents to explain the nature of his interest in the co-op townhouse where the family lived and where he remains living;
c. The husband was to produce mortgage documents relating to the co-op townhouse;
d. The husband was to obtain a letter from Ansar Cooperative Housing Corporation Ltd. and/or the Islamic Cooperative Housing Corporation Limited, explaining the nature of his interest in the co-op townhouse and how it can be valued or sold;
e. The wife was to make best efforts to provide a value of her share in a property in Morocco;
f. The parties were to immediately sign all documents required to request a valuation of the husband’s pension and share the cost of the valuation equally; and
g. A settlement conference (“SC”) was to take place on April 28, 2017, followed by a Trial Management Conference (“TMC”), if a settlement was not reached at the SC.
[9] On September 21, 2018, a SC took place before Goodman, J., during which she ordered the parties to serve and file updated, comprehensive financial statements with 30 days; the parties were free to bring motions against third parties to seek information relating to each other’s respective share ownership (if any) in the co-op unit (matrimonial home); each party was to provide a complete Certificate of Financial Disclosure within 90 days; and the parties were to finalize his/her disclosure requests and proceed to have a final SC.
[10] On March 26, 2019, Nakonechny, J., made an order terminating the child support for Sarah and Adam on April 1, 2019. She also ordered the wife to produce financial disclosure; the Ansar Cooperative Housing Corporation Ltd. to produce documents to the wife relating to the value of the parties’ interest in 40-90 Crockamhill Drive, Toronto (the matrimonial home); the husband to produce his appraisal of 40-90 Crockamhill Drive within 20 days; and for the wife’s spousal support motion to be adjourned and returnable on April 25, 2019.
[11] On April 25, 2019, Paisley, J. ordered the husband to pay temporary spousal support to the wife in the sum of $2,407 a month, based on the mid-range of the Spousal Support Advisory Guidelines (“SSAGs”), commencing April 1, 2019, with the issue of arrears to be determined at trial. The spousal support order was based on the husband earning an income of $87,030 a year. The husband was also ordered to pay the wife’s costs of the motion, fixed in the sum of $1,500.
[12] On September 21, 2020, a case conference was heard by Boucher, J., at which she made a consent order that provided as follows:
a. the Co-op unit at 40 – 90 Crockamhill Drive was to be appraised;
b. the husband was to provide disclosure as to his debts on the date of separation (September 29, 2012); disclosure with respect to his debt consolidation; a copy of his income tax returns and notices of assessment from 2012 to date; and an updated financial statement;
c. the wife was to provide the husband with her banking and credit card statements as at the date of separation; her 2019 income tax return, T4 and notice of assessment; her last 3 pay stubs with the Islamic Foundation and record of employment if no longer employed; proof of the amount she has received from Ontario Works from 2012 to present; a sworn affidavit detailing the earnings of the four adult children and their contributions to household expenses from 2012 to present; proof of the amount she received from the CERB; her banking and credit card statements for the past 3 years; and an updated appraisal of her property in Morocco; and
d. a SC was scheduled to take place on January 13, 2021.
[13] On January 13, 2021, a SC took place before Leiper, J., at which a TMC was scheduled to take place on February 26, 2021;
[14] On February 26, 2021, a TMC was heard by Shore, J., at which she ordered that the wife was free to bring a motion to strike the husband’s pleadings by way of a 14B motion if the husband did not pay his outstanding arrears of spousal support within 30 days; a Trial was set for May 31, 2021 for 7.5 days; and an exit TMC was scheduled for May 19, 2021. The Endorsement of Shore, J. indicates that the husband acknowledged he had not complied with the spousal support order of Paisley, J.; she was concerned as to why the husband should be permitted to seek any order from the court, or to participate in the proceedings when he has ignored an order of the court; the husband did not permit the wife’s property appraiser to enter the co-op townhouse (matrimonial home), as he was required under the order of Boucher, J., dated September 21, 2020, nor did her provide the disclosure as required by the order of Boucher, J., dated September 21, 2020.
[15] On May 7, 2021, on a 14B motion, Shore, J. made an order striking the husband’s pleadings and found that the wife still had to prove her case to obtain the relief requested by her; the husband was not permitted to advance any claims in the proceeding or participate by giving evidence at trial, but he was to be given the opportunity to make submissions on the evidence filed. The exit TMC scheduled for May 19, 2021, was to proceed.
[16] On May 31, 2021, an exit TMC was heard by Hood, J., at which the trial date of May 31, 2021 for 8 days was vacated. Hood, J. set a new trial date of June 7, 2021, for a one-day uncontested trial. He ordered that the trial judge decide whether the affidavit evidence for the uncontested trial was to supplemented by viva voce evidence. Hood, J. confirmed the order of Shore, J., which indicated that the husband was free to make submissions on the evidence presented at trial and make opening or closing submissions but, was not entitled to cross-examine on the evidence presented.
[17] The trial took place before me on June 7, 2021. In addition to the affidavit evidence filed by the wife and four adult children, counsel for the wife made oral submissions and the husband made oral submissions on the evidence at trial. I reserved my decision. These are my reasons.
Background Facts
[18] The wife was born in Morocco on March 11, 1957. She came to Canada in 1988 as a visitor, with an open visa for 2 years. She met the husband in Canada.
[19] The husband was born in Trinidad. He has been employed at Bell Canada as a technician since 1980.
[20] The husband converted to Islam prior to the parties’ marriage. After the parties were married, the husband sponsored the wife. She did not return to Morocco.
[21] At the time of separation, Raheem was 21, Saffiyya was 19, Sarah was 16 and Adam was 15. Raheem and Saffiyya were in the process of completing their post-secondary education. Sarah and Adam were in high school.
[22] At the time of separation, the parties had been married for 22 years.
[23] The wife submits that the husband was psychologically and physically abusive toward her during the marriage. She deposes in her affidavit sworn on May 31, 2021, that the following events took place during the marriage:
a. The husband insisted that the wife stay home to cook and clean and look after the parties four children, while he worked full-time for Bell Canada;
b. The husband forbid the wife from going to work or school;
c. The husband would not allow the wife or children to visit the wife’s family in Morocco for 12 years;
d. The wife was forced to call the police on a number of occasions between 2006 and 2012 because she feared for her safety. The husband was never removed from the house because title to the matrimonial home was in his sole name;
e. On one occasion, the husband turned off the water supply of the house before he left for work. The wife turned the water back on so she and the children could use the water. When the husband returned home from work and discovered that the wife had turned the water back on, he chocked her with rage and anger in front of the children;
f. The husband would unplug the television when the wife tried to watch t.v., telling her she did not buy the t.v. and was, therefore, not permitted to watch it;
g. The wife would have to beg the husband for money if she wanted to purchase anything, as he would only give her enough funds to purchase groceries for the family;
h. The husband kept the child tax credit monies and would not allow the wife to use the funds for the children’s benefit;
i. The husband would not permit her to fix the kitchen sink when it broke, claiming that she would have to “live with it” because she had broken it. As a result, the wife was forced to wash the household dishes in the bathtub;
j. The wife spoke no English when she arrived in Canada. After she and the husband were married, the wife went to night school to learn English as a second language. She attended this class for 3 months before becoming pregnant with Raheem;
k. The husband would regularly abuse her psychologically by ignoring her when she spoke with him, or try and intimidate her by “moving dramatically close to [her] and just leer”;
l. When the wife took the children to Morocco and the husband saw that the wife’s brother had cut Raheem’s hair, he was very angry that the wife had not asked for his permission and proceeded to grab and twist her hand in an attempt to break a bracelet that she had received as a gift from her mother;
m. The wife was forbidden to speak her native language, Arabic. She was not permitted to cook Moroccan food for the family.
n. The husband would try and prevent the wife from making decisions about the children and if she signed a form for a school trip, the husband would require the children to get a new form so he could sign the form; and
o. The husband was abusive toward the children, particularly with Saffiyyah and Sarah.
[24] All four children swore affidavits in support of the relief sought by the wife in this uncontested trial. These affidavits corroborate the wife’s evidence, in that the children witnessed the husband being physically, verbally and emotionally abusive toward the wife and that he was physically intimidating with them, particular with Saffiyya and Sarah.
The Evidence
Issue One: Child Support:
[25] Based on the evidence put forward by the wife, the husband did not pay child support to the wife from the date of separation, September 29, 2012, until April 16, 2014, when Horkins, J., made an order for child support. During this 19-month period, the wife and children had moved out of the matrimonial home and the husband lived there alone.
[26] Again, pursuant to the order of Horkins, J., dated April 16, 2014 (“Horkins 2014 order”), the husband was ordered to pay the wife child support in the sum of $1,072 a month, based on his 2012 income tax return (“ITR”) of $72,517, for two children (Sarah and Adam) commencing April 1, 2014. The court order was made, without the consent of the husband. It was without-prejudice to the wife’s right to seek past outstanding child support for the two older children (Raheem and Saffiyya) who, at the time, were pursuing post-secondary education. The husband was to produce his 2013 T4 and ITR when it was available and the child support was to change in accordance with this information. The husband did not produce his 2013 T4 or ITR. The child support was never adjusted.
[27] The husband complied with the order and paid the child support until April 1, 2019, when the child support payments were terminated, pursuant to the order of Nakonechny, J., dated March 26, 2019 (“Nakonechny 2019 order”). The total sum of child support paid by the husband, since the 2014 Horkins order was $64,320.
[28] Although the husband was ordered during the proceedings to provide copies of his income tax returns; first in the 2014 Horkins Order and second, by the Boucher J. order, dated September 21, 2020, he did not do so until just before this uncontested trial. The husband never updated his child support payments to accord with the increases in his income in the five years between April 2014 and April 2019. Again, the Horkins 2014 order was based on the husband’s 2012 ITR (the only income information for the husband available to the court at the time), which was $72,517. By the time of the Nakonechny 2019 order was made, which terminated the child support as of April 1 2019, the husband’s income (based on his 2018 ITR) was $87,030. The husband did not increase his child support payments during these five years, despite the 20% increase in his income.
[29] Raheem completed his university studies in April 2015. Saffiyya completed her university studies in October 2016. Sarah completed her university studies in April 2018 and Adam completed his college studies in April 2021.
[30] It is the wife’s position that the husband’s owes child support arrears as follows:
a. Retroactive child support for Raheem and Saffiyya from the date of separation, September 29, 2012, to the date they each obtained their first university degree. For Raheem, that is from September 29, 2012 to April 30, 2015; for Saffiyya, that is from September 29, 2012 to October 30, 2016;
b. Retroactive child support for Sarah and Adam from the date of separation, September 29, 2012, to April 1, 2014, the date of the Horkins 2014 order;
c. Retroactive child support for Adam from the date of the order of Nakonechny, J., dated March 26, 2019, until April 2021, when he completed his post-secondary degree;
d. Retroactive adjustments to child support to reflect the husband’s increases in income over the years child support was due and owing; and
e. Retroactive adjustments to determine the husband’s proportionate contribution toward the children’s .s7 expenses over the years;
[31] The husband’s income between the years 2012 to 2020, was as follows:
a. 2012: $72,517;
b. 2013: $79,026;
c. 2014: $76,276;
d. 2015: $79,786;
e. 2016: $84,578;
f. 2017: $90,714
g. 2018: $87,030;
h. 2019: $84,766; and
i. 2020: $86,422.
Child Support the husband should have paid from September 29, 2012 to April 2021:
[32] The below chart sets out what amounts of child support the husband ought to have paid from the date of separation September 2, 2012 to May 1, 2021, based on the increases in his income and the number of children entitled to receive child support in each year.
| Year | Husband’s Income[^4] | No. of children entitled to child support | Child Support Guideline monthly amount | Total child support owing |
|---|---|---|---|---|
| Oct. – Dec. 31, 2012 | $72,517 | 4 | $1,670 for 3 months | $5,010.00 |
| Jan- Dec 2013 | $79,026 | 4 | $1,804.48 for 12 months | $21,653.76 |
| Jan-Dec 2014 | $76,276 | 4 | $1,747.96 for 12 months | $20,975.52 |
| Jan – Apr. 30/2015 | $79,786 | 4 | $1,818.62 for 4 months *Raheem finished his studies in April 2015 |
$7,274.48 |
| May – Dec 2015 | $79,786 | 3 | $1,526.26 for 8 months | $12,208.00 |
| Jan – Oct 31/ 2016 | $84,578 | 3 | $1,602.13 for 10 months *Saffiyya completed her 1st degree in October 2016 |
$16,020.13 |
| Nov-Dec 2016 | $84,578 | 2 | $1,226 for 2 months | $2,454.00 |
| Jan – Oct 2017 | $90,714 | 2 | $1,302 for 10 months | $13,020.00 |
| Nov-Dec 2017 | $90,714 | 2 | $1,359.14 for 2 months *new 2017 Federal Child Support Guidelines Tables |
$2,718.28 |
| Jan – April 30 2018 | $87,577 | 2 | $1,319.85 for 4 months *Sarah completed her university studies by April 30, 2018 |
$5,279.40 |
| May and June 2018 | $87,577 | 1 | $816 for 2 months | $1,632.00 |
| July – Dec 2018 | $87,577 | 0 | Nil *no children in school |
Nil |
| Jan – Aug 31 2019 | $87,754 | 0 | Nil *no children in school |
Nil |
| Sept – Dec 2019 | $87,754 | 1 | $816.48 for 4 months *Adam resumed post-secondary studies |
$3,265.92 |
| Jan – Dec 2020 | $86,422 | 1 | $805 for 8 months *not including May-Aug |
$3,265.92 |
| Sept – April 2021 | No income information Impute $86,422 |
1 | $805 for 8 months *Adam completed his post-secondary studies in April/21 |
$3,265.92 |
| Sept 2012 – April 2021 | $110,027.33 | |||
| Less child support paid | ($64,320.00) | |||
| Outstanding child support arrears | $45,707.33 |
[33] The children of the marriage are now young adults. They have only recently completed their post-secondary studies. They all lived with the wife while in university. The children utilized student loans available to them and now must pay these loans back while also earn an income to maintain their own expenses.
[34] From the time of the separation onward, the wife sustained herself and the children on very limited resources. She relied on support from the Mosque, Ontario Works and part-time employment income to pay for the children’s basic needs. The children relied on food from food banks, went to second-hand clothing stores for clothing and moved on a number of occasions to places where rent was cheaper. Once the children graduated from high school, they each applied for OSAP loans to fund their post-secondary studies. In addition, the child each worked part-time from age 18 onward to supplement their living expenses. Together, the children pooled their incomes from part-time employment to assist the wife in meeting their expenses once they each graduated high school. It is clear the children had great need for child support during the time after the parties’ separation until they each obtained a post-secondary degree/diploma.
[35] Again, all four children swore affidavits in support of the relief the wife is seeking in this trial, as per the order of Boucher, J., dated September 20, 2020, and deposed as follows:
a. Raheem obtained a Bachelor of Commerce, Business Technology Management degree from Ryerson in June 2015. He currently works full-time as a Reporting Analyst at Simpro Solutions. His current annual salary is $38,942. Raheem began working part-time in 2012, when he was 18 years old. He worked at Staples Business Depot part-time while he was in university, until he became employed by Simpro Solutions in November 2015. Raheem currently owes $19,304 to OSAP.
b. Saffiyya obtained a Bachelor of Arts in Sociology from Ryerson in October 2016. She is in the midst of completing a Masters Degree in Education in Social Justice Education and expects to be finished by May 2022. She deposes that she began working part-time in September 2012, when she was 18 years old and worked throughout her university studies. She currently works part-time, teaching at the YMCA, which she began in February 2021. She currently owes $20,247 to OSAP.
c. Sarah obtained a Bachelor of Arts, Honours degree from York University in June 2018. She was working at York University from September 2019 to April 2020 as a Teaching Assistant (“TA”). Her only source of income currently is from the Canada Recovery Benefit (“CRB”). She is eligible for this benefit until July 2021. She receives $900 every two weeks. Sarah began working part-time in 2014 when she was 18 years old. She worked at Food Basics while she was in university until she obtained the TA position at York. She currently owes $27,539 to OSAP.
d. Adam completed his college degree from Seneca College at the end of April 2021. He graduated from Albert Campbell high school in 2018. Adam took a gap year between high school and Seneca and went to Sweden to play soccer. He moved out of the family home in September 2020 and lives independently. In 2020, Adam worked part-time at Costco and earned $27,849. He currently owes $3,800 to OSAP.
[36] Raheem, Saffiyya and Sarah continue to reside with the wife. Raheem continues to contribute to the family’s expenses by maintaining a vehicle, and paying for the lease, gas and maintenance for the vehicle.
Issue Two: Spousal Support
[37] The wife submits that she is entitled to compensatory spousal support from the date of the separation onwards for the following reasons:
a. The parties were married for 22 years. This was a long-term traditional marriage where the parties had four children;
b. During the marriage, she was a stay-at-home mother and wholly responsible for childcare and maintaining the household. The husband worked full-time for Bell Canada throughout the marriage;
c. She is currently 64 years of age, has a limited command of the English language and few, if any, employment opportunities;
d. The husband was psychologically and physically abusive toward her throughout the marriage. He insisted on her staying home and not working. She submits that she was a victim of intimate partner violence. The abuse suffered by the wife at the hands of the husband was corroborated by the parties’ adult children, all of whom swore affidavits in support of the relief sought by the wife in this uncontested trial.[^5]
e. She is financially dependent on the husband and unable to achieve self-sufficiency;
f. She has experienced financial hardship as a result of the marriage breakdown. She struggled to find accommodation for herself and the children after separation. She relied on assistance from the mosque, food banks and social assistance to provide necessities and shelter to sustain herself and the children over the years;
g. The husband continued to reside in the matrimonial home while the wife was forced to find alternate accommodation for herself and the children with limited financial means;
h. The husband has not paid any spousal support to the wife since separation;
i. On April 25, 2019, Paisley, J. ordered the husband to start paying the wife spousal support in the sum of $2,407 a month on April 1, 2019, leaving the issue of spousal support arrears to be determined at trial. The husband breached this court order and made no spousal support payments to the wife, ignoring the court order;
j. The wife’s education, career development and earning potential were impeded as a result of the marriage breakdown because she provided care to the husband and children. In the meantime, the husband remained employed full-time at Bell Canada. His career at Bell Canada flourished and he experienced steady income with raises annually in most years, and was able to continue to contribute to his pension and retirement savings, while the wife was force to deplete any and all savings to support herself and the children;
k. The wife worked part-time for the Islamic Foundation prior to the parties’ separation as a lunchroom supervisor. Regrettably when the Covid-19 health crisis began, the wife was laid of from this position in March 2020. She has no knowledge if she will be rehired in this position;
l. The wife has no capital on which she can earn any income or encroach. The husband has benefitted financially by having not paid the wife spousal support;
m. Currently, the wife’s only source of income is the Canada Recovery Benefit (CRB) in the sum of $896 every two weeks. She also receives a small amount from Ontario Works in the sum of $2.50 a month. Her annual income in 2021 will be approximately $23,300;
n. The wife will turn 65 years of age in March 2022, at which time she can apply for Canada Pension Plan (CPP) which will not be significant since it is based on what she has earned in Canada. She can also apply for Old Age Security at this time but she has no information as to what she will be entitled to receive from this source; and
o. The husband engaged in blameworthy conduct by failing to pay spousal support despite a court order that he do so and by his failure to provide financial disclosure as ordered by both Paisley, J., dated December 19, 2019 and Boucher, J., dated September 22, 2020.
[38] Again, pursuant to order of Paisley, J., dated April 25, 2019, the husband was to commence paying spousal support to the wife on April 1, 2019, in the sum of $2,407 a month. The husband was also ordered to pay the wife costs of the motion, fixed in the sum of $1,500. The husband has never complied with this order. For some unknown reason, the Family Responsibility Office, did not enforce the spousal support order, despite the fact that a Support Deduction Order had been issued.
[39] A chart detailing each party’s income (assuming the husband is also obliged to pay the wife child support as per the above-chart) sets out the spousal support payable to the wife pursuant to the SSAGs, using the mid-range, based on the husband’s annual income in each year:
| Year | Wife’s Income | Husband’s Income | Spousal Support mid-range of SSAGs | Total Spousal Support Amount under the SSAGs owing |
|---|---|---|---|---|
| 2012 | $12,165 | $72,517 | Nil *priority given to child support |
Nil |
| 2013 | $21,265 | $79,026 | Nil *priority given to child support |
Nil |
| 2014 | $26,165 | $76,278 | Nil *priority given to child support |
Nil |
| 2015 Jan-April | $24,990 | $79,786 | $102 | $102 x 4 = $408 |
| 2015 May-Dec | $184 | $184 X 6 = $1,472 | ||
| 2016 Jan-Oct | $25,590 | $84,578 | $1,059 | $1,059 X 10 = $10,590 |
| 2016 Nov.-Dec | $1,171 | $1,171 X 2 = $2,342 | ||
| 2017 Jan -Oct. | $22,135 | $90,714 | $876 | $876 X 10 = $8,760 |
| 2017 Nov-Dec | $786 | $786 x 2 = $1,572 | ||
| 2018 Jan-April | $22,135 | $87,754 | $1,363 | $1,363 x 4 = $5,492 |
| 2018 May-June | $1,453 | $1,453 x 2 = $2,906 | ||
| 2018 July - Dec | $1,914 | $1,914 x 6 = $11,484 | ||
| 2019 Jan - Aug | $27,927 | $84,754 | $1,919 | $1,919 x 8 = $15,352 |
| 2019 Sept-Dec | $27,927 | $87,754 | $1,219 | $1,219 X 4 = $4,876 |
| 2020 Jan to Sept. | $27,927 | $86,422 | $1,317 | $1,317 x 8 = $10,536 |
| 2020 Sept - Dec | $1,620 | $1,620 x4= $6,480 | ||
| 2021 Jan. - June | $23,300 | $86,422 (use 2020 income) |
$1,726 | $1,726 x 6 = $10,356 |
| Total Spousal Support owing | $92,626 total gross spousal support that should have been paid |
[40] According to the wife, based on the husband’s income in each year and applying the mid-range of the SSAGs as the correct amount of spousal support owing to the wife, the husband should have paid her spousal support in the total gross sum of $92,626 from 2015 to June 2021.
[41] However, based on the order of Paisley, J., dated April 25, 2019, the husband owes spousal support of $62,582, plus interest for the period April 1, 2019 to June 30, 2021.
[42] The wife submits that based on the husband’s current income, as disclosed by him during the trial, he would owe ongoing spousal support in the sum of $1,726 a month, using an income of $23,300 for the wife and an income of $87,754 for 2020 (which was the husband’s income in 2019). She is seeking an order that the husband pay her ongoing spousal support in the sum of $1,726 a month, commencing July 1, 2021.
Property Division
[43] It is the wife’s position that the husband owes her an equalization payment (“EP”) in the sum of $286,410 to satisfy her claims under Part I of the Family Law Act.
[44] The matrimonial home (co-op townhouse) is in the sole name of the husband. The parties purchased the Islamic co-op home in 1995. The parties lived in the co-op as their matrimonial home from 1995 to September 2012, when they separated. According to the wife, she and the children moved out of the matrimonial home in 2012 because the situation in the home was toxic and unhealthy. The husband continues to live in the co-op today.
[45] In July 2019, Mr. Pervez Nasim, Chairman of the Islamic Co-Operative Housing Corporation Ltd. wrote to the parties advising as follows:
“The condo townhouse was purchased for $134,500 in which member’s contribution is $72,500 and the Co-operative’s contribution is $62,000. Upon the sale of the house, the Co-operative will be entitled to 10% of the appreciation and the member will get 90% of the appreciation. In case any of the spouses wants to have the house, present value appraisal of the house will be required to determine its appreciation in value.”
[46] The husband did not comply with the Orders of Paisley, J., dated December 19, 2019, or Boucher, J., dated September 22, 2020, with respect to assisting the wife in obtaining an appraisal of the co-op.
[47] Accordingly, the wife obtained a valuation of the co-op on her own. The appraisal was prepared without the appraiser having the benefit of being able to enter the property because the husband would not comply with court orders and allow the appraiser to come into the home. The appraisal values the matrimonial home as at the date of separation (September 30, 2012) at somewhere between $295,000 and $335,000. The appraisal also sets out that the fair market value of the co-op matrimonial home, as at December 13, 2020, was between $600,000 and $650,000. The husband, alone, has the benefit of the significant increase in the matrimonial home since the date of separation. The wife deposes that the current fair market value of the matrimonial home is likely closer to $800,000.
[48] The husband has a pension with the Bell Canada Pension Plan. The wife retained Peter Martin of Golden Actuarial Services in April 2017 to value his pension. Mr. Martin’s report sets out that the Family Law Value of the husband’s pension with Bell Canada as at the date of separation is $258,320. The Family Law Value of the pension only considers the increase in the value of the pension between the date of marriage and date of separation.
[49] Mr. Martin’s report confirms that the Bell Canada Pension is a pension plan registered under the federal Pension Benefits Standards Act and therefore, provides the husband with two settlement options from the plan:
a. A transfer of a lump sum from the plan to a locked-in retirement savings vehicle of the wife; or
b. Creation of a separate pension payable to the wife in her own rights. This will continue to the wife for her lifetime even if the husband, as the plan member, were to predecease her. The wife’s pension would receive the same inflation increased as are received by Bell Canada pensioners.[^6]
[50] The wife and her two siblings, Abdullah Outaleb and Fatima Outaleb, inherited a small property at Hammam Road, Farq Lahbab, Taroudant Morocco in August 1999, when their mother died. The mother’s brother, Abdulla Outaleb swore an affidavit in this proceeding confirming that the wife inherited this property during the parties’ marriage. It is the wife’s position that pursuant to s.4(2) of the Family Law Act, the portion of the Morocco property in the wife’s name is excluded property.
[51] The wife’s calculation of the EP takes into account the following values of the following assets and debts in each party’s name, as at the date of separation:
a. The value of the matrimonial home on the husband’s side of the ledger was $335,000. Title to the matrimonial home is in the husband’s sole name. Accordingly, the increase or decrease in the fair market value of the co-op townhouse belongs to him alone. The EP is crystallized based on the FMV of the home as at the date of separation;
b. The value of the husband’s 2003 Ventura on the husband’s side of the ledger was $4,500, which value the wife accepts;
c. The value of the husband’s savings and savings plan at Royal Bank of Canada on his side of the ledger was $2,000, which the wife accepts;
d. The wife had $500 in her CIBC bank account on the date of separation;
e. The Family Law Value of the husband’s pension at Bell Canada, on his side of the ledger, was worth $258,320 as at the date of separation, according to Mr. Martin’s pension valuation; and
f. The balance on the mortgage with the Islamic co-op registered on title to the matrimonial home as at the date of separation on the husband’s side of the ledger was ($63,000).
[52] During these proceedings, the husband filed three sworn financial statements; November 28, 2013; January 12, 2017 (or December 1, 2017) and April 10, 2019.
[53] In the November 28, 2013 financial statement, the husband lists the values of the following assets and debts on the parties’ date of separation (V-date): the co-op matrimonial home as “TBD”; his 2003 Ventura at $4,500; household contents as “TBD”;, savings and savings plans as $4,053.28; and his Bell Canada pension as “TBD”. The husband listed his debts and other liabilities on V-date as ($165,238.09). In this first financial statement filed by the husband his net family property (“NFP”) is deemed to be zero since it was a negative number.
[54] In the husband’s January 12 2017, (or December 1, 2017), financial statement, the husband lists the values of the following assets on V-date: the co-op matrimonial home as “TBD”; his 2003 Ventura at $4,500; savings and savings plans of $4,053.28; and his Bell Canada pension as “TBD”. The husband lists his debts and other liabilities on V-date as ($165,441.51). He also lists date of marriage contents worth $5,000. In this second financial statement filed by the husband his NFP is deemed to be zero, since it was a negative number. Even though four years had passed between the date he filed his first financial statement and his second financial statement, he had taken no steps to obtain an appraisal of the matrimonial home or his pension, both of which he had been ordered to do in the 2014 Horkins order, and both of which are his obligations under the Family Law Act.
[55] In the husband’s April 10, 2019, financial statement, he lists the value of the co-op matrimonial home as $72,000. He specifically states that the matrimonial home is in the name of the Islamic Co-operative Housing Corporation Limited and that the husband holds 720 shares valued at $100 each in the co-op. He valued the household contents at $2,500 on V-date and lowered his 2003 Ventura from $4,500 to $3,500. He continued to list the value of his household contents on the date of marriage at $5,000. The husband included the value of his Bell Canada pension on the date of separation at $258,320 and included the value of the pension on the date of marriage at $150,000. The value of the assets in the husband’s name on V-date totalled $338,372.38. The husband listed his debts and other liabilities as being ($139,385.70) on the date of separation, about $26,000 less than he had on his two earlier sworn financial statements. His net family property was deemed to be zero because his net worth on V-date less his date of marriage net worth was negative.
[56] The husband’s three sworn financial statements are inconsistent. No disclosure was produced by him to verify the debts he listed owing by him on V-date, despite two courts orders that he do so. Further, he provided no financial disclosure to verify his savings and savings plan on V-date or his date of marriage deductions. Finally, the value of the matrimonial home on V-date given by the husband in his April 10, 2019, is entirely inconsistent with the information provided by the Islamic Co-Operative.
[57] Based on the wife’s NFP calculations, she is owed an EP of $268,410 by the husband. She did not include any assets or debts on V-date in the husband’s name that were not proven. Nor did she include any date of marriage deductions for the husband that were not proven by him.
[58] The wife seeks an order that the EP and support arrears be paid to her as a direct rollover from the husband’s pension to a pension in her name, also held by Bell Canada. Alternatively, she seeks an order that the EP and support arrears be paid to her out of the proceeds of sale from the matrimonial home when the home is sold by the husband.
ANALYSIS
Retroactive Child Support
[59] The wife relies on s.15.1 of the Divorce Act in claiming retroactive child support. Section 15.1 of the Divorce Act provides as follows:
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.
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 pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).
Guidelines apply
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.
Terms and conditions
(4) 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 or interim order as it thinks fit and just.
[60] Pursuant to Michel v. Graydon, 2020 SCC 24, child support can be recalculated retroactively even if a child has reached adulthood. In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada interpreted s.15.1 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), as precluding a court from granting an order on an original application for retroactive child support unless the child beneficiary is a “child of the marriage”, as defined in the Divorce Act, when the application is made (para. [2]). After D.B.S., courts grappled with whether the same principle applies to provincial legislative schemes or to variation applications under s.17 of the Divorce Act. In Michel v. Graydon, supra, the court confirmed that D.B.S. does not stand for the proposition that courts can retroactively vary child support only while the child beneficiary is a “child of the marriage” (at para [15]).
[61] In the case at bar, the wife seeks retroactive child support for Raheem, Saffiyya, Sarah and Adam, all of whom are now young adults and no longer “children of the marriage”, as defined by the Divorce Act. When the wife commenced her application on March 20, 2013, each of the four children were “children of the marriage”, although the older two children were pursuing their post-secondary education.
[62] As stated in paragraph [31] of Michel v. Graydon,
“When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para.5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations…Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur.””
[63] In the case at bar, the husband did not pay child support until he was ordered to do so under the Horkins 2014 order. Even then, the husband was only ordered to pay table child support for the two younger children, using the income figure known by the court at the time, from 2012. The temporary child support order was without prejudice to the wife seeking retroactive child support and to her seeking child support for the two older children who were residing primarily with her, while pursuing their post-secondary educational studies. While the husband complied with his ongoing obligation to pay child support pursuant to the Horkins 2014 order, he did not comply with the disclosure obligations under the Child Support Guidelines (“CSG”), nor did he vary his child support upward as his income level increased from what he was earning beyond 2012, the income on which the temporary child support order was based.
[64] In the recent Supreme Court of Canada decision, Colucci v. Colluci, 2021 SCC 24, Martin J, confirmed that financial disclosure by a payor is central to the child support regime and affirmed what the Court found in Michel v. Graydon, namely that “payor parents are subject to a duty of full and honest disclosure and where the payor fails to comply with this duty and leaves the recipient unaware of increases in income, a retroactive award will commonly be appropriate because non-disclosure eliminates any need to protect [the payor’s] interest in the certainty of his [or her] child support obligations” (para. 42).
[65] Further, in Colucci, the court confirmed that
“in a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it. It would this be illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation. This is why frank disclosure of income information by the payors lies at the foundation of the child support regime.” (at paras. 49 and 50.)
[66] As in Michel v. Graydon, where the mother was in receipt of social assistance and the father had understated his income, in the present case, the wife was only able to sustain herself and the children with the support of Ontario Works, the community and friends. The children were all forced to pool their part-time income to meet their needs and to take out student loans to pay for their post-secondary studies. They now have to repay these student loans with their minimal income. Further, the husband did not disclose his income tax returns or make proper financial disclosure despite court orders that he do so. His income tax returns were not produced until just prior to the hearing of this uncontested trial, making it impossible for the wife to have calculated the appropriate quantum of table child support until the hearing of this uncontested trial.
[67] The wife commenced her Application on March 20, 2013. The husband had reasonable notice that the wife was seeking child support. Child support is now treated as a debt and does not extinguish even once the children are independent. Furthermore, in this case, the husband did not pay child support to the wife upon the separation. He waited until he was ordered to pay child support by the Horkins 2014 order. In addition, the husband did not make any voluntary child support payments to Raheem and/or Saffiyya even though he knew they were in full-time post-secondary studies. Finally, the husband did not voluntarily disclose the increases in his income or voluntarily adjust his child support to reflect the changes in his income which were significant.
[68] In the present case, the wife and children suffered significant hardship, as a result of the wife sacrificing everything to ensure the children did not go without while they pursued their post-secondary studies. The family relied on food banks, second hand clothing stores, and were forced to move residences to secure cheaper accommodations. This all took place while the husband continued to reside in the matrimonial home on his own. The children completed their post-secondary studies with very little financial means and the wife did everything in her power to assist them with the very little resources available to her. The husband, on the other hand, had the benefit of the unpaid child support for the period September 29, 2010 to date, and his access to these monies funded a lifestyle for him that ought to have been enjoyed by the four children of the marriage.
[69] As a result, I find that the husband owes the wife retroactive child support in the sum of $45,707.33, as calculated in paragraph 32 above.
Retroactive Spousal Support
[70] The wife seeks an order that the husband pay the wife retroactive spousal support arrears, fixed in the sum of $74,068. The total retroactive spousal support arrears of $92,626 was been netted down by 25% to reflect the fact that lump sum spousal support is not deductible by the payor, nor taxable in the recipient’s hands.
Legislative Framework
Statutory Factors: Section 15.2(4) of the Divorce Act
[71] Sections 15.2(1) and (2) of the Divorce Act (“Act”) set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. Section 15.2(4) of the Act directs the court hearing a spousal support claim to 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 arrangements relating to support of either spouse.
[72] Section 15.3 of the Act addresses situations where the court is considering claims for both spousal support and child support, and there is concern regarding a party’s ability to pay both at the appropriate levels. In these circumstances, section 15.3 directs the court to give priority to child support in determining the application.
[73] The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge (“Moge”),1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 and are circumscribed by that purpose. As L’Heureux-Dube, J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” (Moge, at para. 43). The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.
[74] The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life.[^7] A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits.[^8] The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux,2009 ONCA 569, 2009 CarswellOnt 4077 (C.A.), para. 42, “self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage.” In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.
Statutory Objectives: Section 15.2(6) of the Divorce Act
[75] Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:
15.2(6) Objectives of Spousal Support Order- 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.
[76] The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount: Rioux, Supra. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14; Moge v. Moge, Supra.
[77] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.
[78] As set out above, the wife seeks spousal support on a compensatory basis.
[79] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions: Moge, Supra, paras. 68-70. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives; Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (C.A.).
[80] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations.
[81] In the circumstances of the present case, I find that there is no doubt the wife has entitlement to compensatory support based on the following:
a. Her education, career development and earning potential have been impeded as a result of the marriage because she looked after the household and the four children while the husband continued in the pursuit of his career and continued to contribute to his pension plan at Bell Canada;
b. Her education and career development were negatively affected by the marriage because she was unable to take the necessary courses to improve her skills in the English language or pursue a career as a result of the husband’s demands and controlling, abusive psychological and physical treatment toward her;
c. Her absence from the workforce as a result of her family responsibilities resulted in her losing training, job promotion, medical benefits and pension benefits;
d. Her significant contribution toward the household and family was an indirect contribution to the husband’s career development as it enabled him to pursue his career interests without any regard for his familial responsibilities; and
e. She clearly meets the SSAG examples of suffering an economic disadvantage as a result of the marriage and its breakdown in that a) she was at home with the children full-time; b) she worked on a very part-time basis at the children’s school during lunch in the lunch room; and c) she was the primary caregiver to the children after the separation.
General Principles Regarding Quantum and Duration of Spousal Support
[82] The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in section 15.2 of the Act. The SSAGs provide considerable assistance in addressing questions relating to quantum and duration of spousal support. While the SSAGs are not binding, they provide a valuable litmus test for assessing the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.
[83] The SSAGs formulas generate suggested ranges for both quantum and duration of spousal support. The ranges allow for accommodations for the specific circumstances of each case, taking into consideration the support factors and objectives set out in the applicable legislation. The SSAGs and the case-law that has considered the guidelines outline a number of factors which the court may wish to consider in deciding the appropriate quantum and duration of support within the ranges. These include the following:
a. The strength of any compensatory claim for support. A strong compensatory claim may be a factor that favours a spousal support award at the higher end of the ranges both in terms of quantum and duration. By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration; Bracklow v. Bracklow, Supra.; Midgley . Midgley, 2001 CarswellBC 2009 (C.A.);
b. The recipient’s needs. Where the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration ranges;
c. The age, number, needs and standard of living of the children;
d. The payor spouse’s needs and ability to pay;
e. The need to preserve work incentives for the payor;
f. Property division and debts. An absence of property to divide may render an award in the higher range appropriate. On the other hand, a significant property award to the recipient may cause the judge to determine that an award in the lower range is appropriate; and
g. Self-sufficiency incentives in relation to the recipient spouse.
[84] Where there are dependent children and associated child support obligations, the With Child Support formula comes into play. This formula addresses a number of special considerations that arise where dependent children are involved, including the fact that priority must be given to child support, that there is usually reduced ability to pay as a result of child support obligations, and that there are special tax and benefit issues relating to the children. In addition, the objectives of and rationale for spousal support, as well as quantum and duration considerations, are typically different where children are involved. As the authors of SSAGs emphasize, in these cases, spousal support is driven not only by the length of the marriage, marital interdependency, and merger of the parties’ economic lives over time, but also by the need to provide care and financial support for the children.[^9] The case law supports that spousal support considers not only past loss, but also the potential for ongoing financial disadvantage arising as a result of current and future child care responsibilities.
[85] In the present case, the SSAGs, produce a range of spousal support for an indefinite (unspecified) duration, subject to variation. This was a 22-year marriage, with four children. Until 2015, the SSAGs calculations showed no spousal support owing by the husband to the wife, because priority was given to child support. The strength of the wife’s compensatory spousal support claim suggests that one ought to look to the ranges of spousal support in the mid- to high-range. However, the wife is only seeking retroactive spousal support in the mid-range.
[86] Now that the children are no longer entitled to spousal support, determining duration of the wife’s spousal support entitlement is calculated under the without child support formula. The wife relies on the Rule of 65 to support her position that indefinite spousal support is appropriate. The Rule of 65 applies if the length of the parties’ relationship in years plus the recipient’s age at the date of separation equals or exceeds 65. In this case, the length of the parties’ relationship was 22 years. The wife was 54 at the time of separation. As a result, the Rule of 65 is applicable, making the duration of the wife’s spousal support indefinite, subject to variation.
Retroactive Spousal Support Claim
[87] The Supreme Court of Canada tackled the issue of retroactive spousal support in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.). In that case, the court touched on the issue of the semantics around the word “retroactive,” and emphasized that the principles which the court established in D.B.S., Supra, were articulated in the context of claims for child support for periods predating the commencement of the legal proceedings. The court referred to the Ontario Court of Appeal decision in MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 2005 CarswellOnt 1536 (C.A.), where the court held that the date of the initiation of court proceedings for spousal support is the usual commencement date for the support order, unless there is a reason for making the order commence on a different date.
[88] With respect to retroactive spousal support claims, the court held that the four general considerations which it had articulated in D.B.S. are also relevant in deciding the suitability of a retroactive spousal support order.[^10] However, it emphasized that retroactive spousal support cases must be analyzed within the framework of the unique legal principles and objectives that underlie the right to spousal support, which are very different from those which apply to child support. Specifically, it highlighted that the duty of both parents to support a child arises at birth, whereas there is no automatic entitlement to spousal support or obligation on the part of a spouse to look out for the other spouse’s legal interests. In addition, it noted that child support is the right of the child rather than that of one of the litigants, and that the SSAGs have simplified the calculation of a parent’s support obligation. Accordingly, the prejudice where retroactive relief is denied flows to the child rather than to the custodial parent. The court’s analysis indicates that because of these different principles and objectives, concerns about a spousal support claimant’s notice of the claim and delay in pursuing it, and about misconduct, will generally carry more weight in retroactive spousal support cases.
[89] With respect to the concern of payor spouses in retroactive claim cases about the recipient’s delay in pursuing relief, the Supreme Court noted in Kerr v. Baranow, Supra, that there are two important underlying interests at stake. First, there is the payor’s interest in having certainty regarding their legal obligations. Second, there is a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly. In regard to the issue of conduct, the court clarified that the focus must be on “conduct broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure.” (Kerr v. Baranow, para. 212). Consideration of the circumstances of the spousal support claimant must focus on that spouse’s needs both at the time the spousal support should have been paid and at present.
[90] In the present case, the wife did not delay in pursuing her spousal support claim. She commenced her Application in 2013 and the husband had notice of her spousal support claim since then. When Paisley, J. made the spousal support order in 2019, it was after the child support had been terminated, and child support was no longer given priority. Despite knowing he was ordered to pay spousal support to the wife in 2019, the husband flagrantly breached and ignored the court order. Further, the husband will not experience hardship if a retroactive spousal support order is made. He has significant equity in the matrimonial home and the benefit of a Bell Canada pension. In contrast, the wife has no retirement savings or any property in her name.
The Treatment of Post-Separation Increases in a Payor’s Income in Spousal Support Cases
[91] The wife has calculated what the husband would have owed her in spousal support using the SSAGs, adjusting the spousal support annually in accordance with the husband’s increases in income. Her position respecting spousal support is premised on the assumption that she should be permitted to benefit from the husband’s increases in income since the parties’ separation on September 29, 2012. This position raises difficult questions regarding the relevant timing for income determination in spousal support cases, and the circumstances in which a recipient spouse should be permitted to reap the benefits of the payor’s post- separation income increases.
[92] The Ontario Court of Appeal has adopted two approaches to this issue. In the 2003 decision of Marinangeli v. Marinangeli,2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.), where the facts indicate that the Respondent wife had a compensatory spousal support claim, the court made the following comments respecting need and ability to pay:
“In determining need, the court is to be guided by the principle that the spouse receiving support is entitled to receive the support that would allow her to maintain the standard of living to which she was accustomed at the time cohabitation ceased. In addition, there is jurisprudence to the effect that a spouse is entitled to an increase in the standard of living such as would have occurred in normal course of cohabitation. See MacDougall v. MacDougall (1973), 1973 CanLII 1940 (ON SC), 11 R.F.L. 266, 1973 CarswellOnt 130 (Ont. S.C.) per Henry, J. See also Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), 1 O.R. 3d 1 (Ont. C.A.). At the same time the court must guard against redistributing the payor’s capital in the guise of support.”
[93] By contrast, in Fisher v. Fisher, Supra, where the Court of Appeal was dealing with a non-compensatory support claim, Lang, J.A. did not consider the payor spouse’s post-separation income in determining the spousal support claim. Rather, she averaged out the spouses’ respective incomes during the three years prior to separation and in the year of separation.
[94] These two cases provide a backdrop against which to analyze the issue of post-separation increases in a payor’s income, and they suggest that a fundamental consideration in determining how to treat such increases is whether the spousal support claim is based on compensatory or non-compensatory grounds.
[95] In an annotation to Fisher v. Fisher, Supra, Phillip Epstein provided the following analysis of the appropriate treatment of post-separation increases in income, in spousal support cases:
In both Kelly v. Kelly 2007 BCSC 227, and Emery v. Emery, 2007 BCSC 1747, , the British Columbia Supreme Court, a court most identified with the Guidelines, notes that the SSAG provide limited guidance in situations where a payor's income has increased post-separation. The court points out that the authors of the SSAG in that regard, wrote in the report that "circumstances such as post-separation increase in the payor's income ... are best left to a discretionary, case by case determination." Thus, the authors of the Guidelines suggest that in cases where there is an increase in post-separation income, the court has to take a case-by-case look at the circumstances and determine how the post-separation income should be factored into the support award.
The treatment of increases in post-separation income for spousal support purposes is not an easy issue. It is suggested that of the three types of spousal support described in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), only compensatory support allows a spouse to share in post-separation increases in income. Contractual spousal support is proscribed by the terms of the contract and need -based support is generally restricted in quantum to the lifestyle enjoyed during the marriage. Compensatory support considerations, on the other hand, might sometimes take into account post-separation increases in income, for example, where the claimant has conferred a substantial career enhancement benefit on the other spouse. See Keast v. Keast, 1986 CarwellOnt 257, 1 R.F.L. (3d) (Ont. Dist. Ct.) and Ferguson v. Ferguson, 2008 CanLII 12836 (ON SC).
There is no automatic entitlement to increased spousal support when a spouse's post-separation income increases. See Dextrase v. Dextrase, 2004 BCSC 215, [2004] B.C.J. No. 266, 2004 CarswellBC 287 (B.C. S.C.) at para40 and Hariram v. Hariram, 2001 CanLII 32749 (ON SCDC), 2001 CarswellOnt 732, 14 R.F.L. (5th) 88 (Ont. Div. Ct.).
Generally, there must be some economic advantage/disadvantage conferred and suffered in order to be entitled to share in any increase in income. The difficulty lies in drawing a clear line between the conduct which specifically contributed to future income potential and conduct which is only a general contribution reflective of the roles adopted during the marriage.
Much case law suggests that a direct contribution to future income earning potential by way of contributing to credentials or skills is a necessary precondition of sharing post-separation success. If the payor obtains skills or credentials during the marriage, the recipient is more likely to be entitled to share in the future increases of income. If the payor's post-separation success flows from a job which is a different job than that which he had during the marriage, the court is more likely to reject a claim for the sharing of post-separation success. In contrast, where the payor's job that generated the increased income is the same or similar to the payor's job during the marriage, the court is more likely to allow the other spouse to share in the increased income. As well, where there was a long-term marriage with a complete integration of the parties' personal and economic lives, there is more likely to be an entitlement to share in a post-separation increase in income.
[96] The authors of the SSAGs and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support.
[97] In Thompson v. Thompson, 2013 ONSC 5500, the court outlined that the following general principles should guide and inform the court’s exercise of discretion on this issue, at para. 103:
a. A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases.[^11]
b. The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship.[^12]
c. Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income.[^13]
d. The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case.[^14]
e. A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant.[^15] When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.
f. In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career.[^16]
g. If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.[^17]
h. By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.[^18]
i. Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.[^19]
j. Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.[^20]
k. Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult.[^21]
l. The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post–separation income increases.[^22]
m. Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases.[^23]
[98] Applying these general principles to the case at bar, I find that the wife should be permitted to benefit from post-separation increases in the husband’s income for the purposes of the spousal support analysis on the following grounds:
a. The wife has a very strong compensatory claim for spousal support;
b. Without the wife’s support in looking after the parties’ household and caring for the parties’ four children, the husband would not have had the benefit to continue along his career trajectory at Bell Canada and continue to experience salary increases and contributions toward his pension plan;
c. The husband worked at Bell Canada prior to the parties’ relationship and continued to work there throughout the parties’ 22 year marriage. He never had to take off any time from work to care for the parties’ four children, as the wife was fully responsible for doing so;
d. The wife was entirely reliant on the husband financially. Other than obtaining part-time employment as a lunch room supervisor at the children’s Islamic school, the wife earned no income. She never obtain a command of the English language. In fact, at the husband’s insistence, the wife was not permitted to gain training or work during the marriage. He expected her to clean the house; clean his clothing, cook for him and the children; and look after the children entirely. The parties’ financial affairs were integrated. The wife sacrificed her own education and career for the benefit of the husband and children; and
e. The husband did not obtain new skills or a different job after the parties’ separated. Instead, the husband’s income increased at the same job. However, the husband never disclosed his increases in income, nor did he increase his child support payments.
[99] In my view, there is a clear temporal link between the parties’ marriage and the increases in the husband’s annual income with no intervening change in his career at Bell Canada, or any other event, that could explain the increase. There can be no principled argument that the wife is not entitled to have the husband’s increased income taken into account in the years following the separation.
[100] Again, after the separation, the wife continued to be the custodial parent of the parties’ four children, shouldering almost entirely all of the child-rearing responsibilities, including the additional burden created by the fact that the husband was not paying her any spousal support. This restricted her income-earning potential and left the husband free to continue to devote his energies to his career at Bell Canada, increasing his income and pension contributions.
[101] I am satisfied that the years the parties lived together, from the time that the husband was 33 years of age until he was 55 years old, are crucial years in his career trajectory at Bell Canada. The husband’s contributions toward his pension during these years enabled him to know he could retire comfortably and to experience annual increases in his salary.
[102] Ultimately, this family decided to divide their family responsibilities in such a way as to make a joint investment in one career – the husband’s. It would be unfair for him alone to reap the benefits.
[103] Based on the above reasons, the wife’s retroactive claim for spousal support will follow the SSAG calculations in each year to reflect the post-separation increases in the husband’s income, as opposed to relying only on the spousal support on the order made by Paisley in 2019.
[104] In accordance with the factors the court must consider when addressing a retroactive claim for spousal support, as set out in Bremer v. Bremer, 2005 CanLII 3938 (Ont. C.A.), I find that the wife has demonstrated that she is entitled to retroactive spousal support, for the following reasons:
a. She has established past need. The wife was on social assistance, relied on the assistance of the mosque and community, food banks and second hand clothing to subsist. She sacrificed her own needs to provide for the children;
b. The wife had no capital on which she could encroach, contrary to the husband who had access to the equity in the matrimonial home, which is solely in his name, and who has a significant pension plan with Bell Canada;
c. The underlying basis for the spousal support order is clear. This was a 22-year marriage, where the wife was out of the workforce and looked after the four children primarily and the household. In addition to the wife’s compensatory claim for spousal support, the wife has established her clear need and dependence on the husband and the husband had the means to pay spousal support but simply ignored his court ordered obligations to do so;
d. The husband has benefitted by not having paid the wife spousal support. He can pay the spousal support arrears by rolling monies from his pension at Bell Canada into a pension in the name of the wife, or by entering into a payment plan. Despite a court order that he pay the wife spousal support, the husband failed to do so;
e. The husband has engaged in blameworthy conduct as the payor, by his lack of financial disclosure and his failure to pay spousal support in accordance with the order of Paisley, J., dated April 25, 2019; and
f. The husband caused delay in this proceeding by changing solicitors on four occasions and by being unrepresented for periods of time.
Adjusting the retroactive award to account for income tax considerations
[105] In quantifying retroactive spousal support, the ranges of support generated by the SSAGs have to be adjusted to account for the fact that the ranges are based on a payor making periodic payments that are presumed to be taxable in the hands of the recipient and tax deductible by the payor.
[106] In Vanasse v. Seguin, 2008 CanLII 35922 (ON SC), [2008] O.J. No. 2832 (Ont. S.C.) [Vanasse], the court reduced the amount of retroactive spousal support owed by 30% as it would not be taxable in the recipient’s hands. Similarly, in Bargout v. Bargout, 2013 ONSC 29, 35 R.F.L. (7th) 391 [Bargout], the court followed the approach in Vanasse and reduced the retroactive amount found owing by 30%, based on the fact the recipient would not pay tax on the retroactive spousal support award. In Thompson v. Thompson 2013 ONSC 5500, the court wrote, at para. 75, that with respect to:
The quantification of retroactive spousal support, the range that is generated by the SSAG must be adjusted because these ranges are based upon periodic ongoing payments which are presumed to be taxable in the hands of the recipient and tax deductible by the payor. A retroactive award must be “nettled down” to account for its non-taxable status in the recipient’s hands, and its non-tax deductible status in the payor’s hands.
[107] In Patton-Casse v. Casse, 2012 ONCA 709, the Court of Appeal considered how to quantify retroactive lump sum spousal support. McDermot, J. reasoned that since an order for retroactive spousal support is not deductible to the payor, the payor would pay more by way of lump sum than he would have, had the amounts been paid periodically and deductible in his hands (at para 22).
[108] The appeal judge had to consider the fact that Patton had a lower marginal tax rate than Casse, and therefore, the value of Casse’s lost deduction exceeded that of Patton’s tax savings. As a result, the appeal judge recognized that there were no way to adjust the lump sum retroactive award in a way that would place both parties in the same position they would have been in had the payment been deductible and taxable. In taking a balanced approached, McDermot, J. considered both parties’ tax positions and awarded $177,000 of retroactive spousal support by using a 25% reduction in the support arrears.
[109] The case law I have referenced (see: Vanasse; Bargout; Lalonde v. Lalonde, [2009] W.D.F.L. 297 (Ont. S.C.); Patton-Casse v. Casse, 2011 ONSC 6182, 8 R.F.L. (7th) 393; and Korkola v. Korkola, [2009] W.D.F.L. 1380 (Ont. S.C.)) demonstrate that the court has reduced the retroactive lump-sum payable for spousal support arrears, taking into consideration the approximate marginal tax rate of the payor, as opposed to adjusting the lump-sum payable based upon the Divorce Mate provisions for the “net” or “after-tax” amounts or “Net Disposal Income” NDI amount. As noted, the SSAG’s software, Divorce Mate, addresses after-tax amounts for periodic support ordered rather than retroactive lump-sum payments.
[110] Other than working part time for the Islamic Foundation, the wife has had no employment. She is 64 years of age. She was laid off from her position at the Islamic Foundation in March 2020 as a result of Covid-19. She is unsure if and when she will be able to return to this part-time position.
[111] Her only current source of income is CRB of $896 every two weeks. She continues to receive $2.50 a month from Ontario Works to keep her medical plan open and active while she collects CRB. When she turns 65 years of age, the wife will be able to apply for CPP and Old Age Security. However, the wife has no assets in her name; no savings, no pension or retirement savings. She is in desperate financial needs.
[112] In Canada, individuals are subject to two layers of tax – federal and provincial. The 2021 combined Federal and Ontario tax brackets and tax rates are set out in the below charts[^24]:
a. Federal tax rates for 2021
- 15% on the first $49,020 of taxable income, plus
- 20.5% on the next $49,020 of taxable income (on the portion of taxable income over 49,020 up to $98,040), plus
- 26% on the next $53,939 of taxable income (on the portion of taxable income over $98,040 up to $151,978), plus
- 29% on the next $64,533 of taxable income (on the portion of taxable income over 151,978 up to $216,511), plus
- 33% of taxable income over $216,511
b. Ontario tax rates for 2020:
Ontario
5.05% on the first $45,142 of taxable income, + 9.15% on the next $45,145, + 11.16% on the next $59,713, + 12.16% on the next $70,000, + 13.16% on the amount over $220,000
[113] The wife’s income in 2020 was $27,723. She submitted that she expects her 2021 income to be $23,300. Her marginal tax rate is 20.5%.
[114] During the husband’s oral submissions at this uncontested trial, he advised that his 2020 income was $86,422. His marginal tax rate is 31.48%. This does not mean that the husband’s entire income is taxed at his marginal tax rate. If the husband earned $86,422 in 2020, his income tax would be calculated as follows:
a. $45,142 at 20.5% = $9,254.11
b. $49,020 - $45,142 at 24.15% = $936.54;
c. $79,505 - $49,020 at 29.65% = $9,038.81;
d. $86,422 - $79,505 at 31.48% = $2,177.47
Total tax = $21,406.94
[115] Accordingly, the husband does not pay tax at a rate of 31.48% on his gross annual income ($86,422 x 31.48%). The marginal tax rate of 31.48% is the amount of tax paid on any additional dollar made up to the next tax bracket. For the husband, his average tax is only 24.7% ($21,406.94 divided by $86,422 of total income). Average tax is the percentage of tax paid based on a person’s total gross income and reflects the total tax the husband is paying. In other words, it is the total amount of tax one pays through all the brackets divided by total income and will always mathematically be lower than the marginal tax rate.
[116] The wife seeks retroactive spousal support of $92,626 to be netted down by no more than 25%, which amounts to $73,469.50 ($92,626 - $23,156.50).
[117] An average of the parties’ marginal tax rates is 22.6%. Balancing the interests of both parties, I find that the correct percentage rate to be used to net down the gross retroactive spousal support owing to wife by the husband is 23%, making the spousal support arrears total $71,322.02 ($92,626 - $21,303.98) owing to the wife.
Prospective Spousal Support
[118] The wife seeks an order that the husband pay her ongoing spousal support in accordance with his income. During this uncontested trial, the husband disclosed that his income in 2020 was $86,422. The SSAGs demonstrate that with the wife’s annual income in 2020 of $23,300, the range of spousal support on a “without child support” formula, is $1,736 a month on the low-range; $2,025 a month on the mid-range; and $2,314 on the high-range.
[119] The range of spousal support is indefinite (unspecified duration). As explained above, the Rule of 65 is applicable in this case.
[120] While in the circumstances of this case, I would have been inclined to order the husband to pay the mid-range of the SSAGs given the wife’s compensatory spousal support claim, the wife is seeking the low-end range of the SSAGs, in the sum of $1,746 a month. I see no reason to depart from what she seeks. Accordingly, I order the husband to pay ongoing spousal support to the wife in the sum of $1,736 a month, commencing on July 1, 2021 and on the 1st day of each following month. This order is based on the husband’s stated income in 2020 of $86,242 and the wife’s estimated current income of $23,300.
Equalization Payment
[121] Sections 4 and 5 are the key property division provisions in the Family Law Act. “Net family property” under s.4 is comprised of all the property in a spouse’s name, valued on the valuation date (the date of separation), after deducting debts and the value of the property the souse brought into the marriage. Excluded from, a spouse’s net family property, among other things, are gifts or inheritances during the marriage and income therefrom.
[122] Section 4(3) of the Family Law Act provides as follows:
(3) ONUS OF PROOF RE DEDUCTIONS AND EXCLUSIONS – the onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it.
[123] The NFP statement filed by the wife is reproduced below in a chart, with a commentary column I have added to indicate what items the wife did not include her NFP statement that were included by the husband in his FS:
| Asset/Debt | Husband | Wife | Comments – The NFP if the W had accepted all of the H’s figures in his FS |
|---|---|---|---|
| 40-90 Crockhamhill Drive (co-op) | $335,000 *this should be $314,500 |
The letter from the Islamic Co-operative housing indicates that 10% of the appreciation in the value of the co-op belongs to the co-op. This was not considered in the wife’s NFP statement. The co-op was purchased for $134,500. If it’s FMV on the date of separation was $335,000, then the appreciation in value is $200,500, 10% of which belongs to the Islamic Co-operative in the sum of $20,500. The correct figure, therefore, for the H’s interest in the matrimonial home is $314,500 (being $335K less $20,500) | |
| Land in Morocco | $2,500 | This was not included in the wife’s NFP statement but the wife did exclude the land, not having included it. The correct approach, therefore, is for the W to have included this asset on her side of the ledger. | |
| 2003 Ventura | $4,500 No black book value provided |
No proof of documentation but W accepted H’s figure | |
| CIBC | $500 | ||
| Bell Canada Pension | $258,320 | Family Law Value (“FLV”) as per Peter Martin’s report | |
| Chequing RBC Acct #5028956 | W did not include $1,582.92 for H because he provided no disclosure for this | ||
| RBC Acc #5016381 | W did not include $24.90 for H because he provided no disclosure for this | ||
| Scotiabank chequing account #91082011289 | W did not include $74.90 for H because he provided no disclosure for this | ||
| Communications Technologies chequing account #0239582 | W did not include $275.07 for H because he provided no disclosure for this | ||
| CIBC Chequing account #84-28735 | W did not include $92.30 for H because he provided no disclosure for this | ||
| Bell ESP | W did not include $2,000 for H because he provided no disclosure for this | ||
| Without considering the H’s savings and savings plans, the correct value of his assets on V-date should be $577,320 (incl. only 90% of the MH). If the W had included these savings for the H on V-date they would add $4,050.09 to the H’s assets on V-date, totalling $581,370.09 | |||
| Subtotal of Assets on V-date | $597,820 *this should be $577,320 |
$3,500 | $581,370.09 (if W added in H’s savings) |
| Debts on V-date | |||
| Mortgage on 90 Crockhamhill Drive | ($63,000) | ||
| School fees owing to Islamic Foundation School | W did not include ($7,300) because H provided no proof of debt | ||
| Rent for 40-90 Crockhamhill Drive | W did not include $1,428) because H provided no proof of debt | ||
| Bailiff Collection for property tax arrears | W did not include ($4,126.50) because H provided no proof of debt | ||
| Condo fees for 40-90 Crockamhill Drive | W did not include ($978.72) because H provided no proof of debt | ||
| CRA Child Tax Credit | W did not include ($2,303.36) because H provided no proof of debt | ||
| Property tax arrears | W did not include ($3,783.46) because H did not provide proof of debt | ||
| CIBC Dividend Card #9725 | W did not include ($2,789.09) because H did not provide proof of debt | ||
| CIBC Petro Points MC #3937 | W did not include ($7,840.95) because H did not provide proof of debt | ||
| CIBC Line of Credit | W did not include ($4,314.78) because H did not provide proof of debt | ||
| RBC Rewards Visa Class #1850 | W did not include ($8,369.38) because H did not provide proof of debt | ||
| RBC Visa Platinum Avion #0189 | W did not include ($8,385.76) because H did not provide proof of debt | ||
| RBC Line of Credit | W did not include ($19,377.50) because H did not provide proof of debt | ||
| RBC line of Credit | W did not include ($4,620) because H did not provide proof of debt | ||
| Scotiabank no fee Visa #025 | W did not include ($7,443.44) because H did not provide proof of debt | ||
| Scotia Bank value Visa #017 | W did not include ($6,725.32) because H did not provide proof of debt | ||
| Scotiabank line of credit | W did not include ($14,037.94) because H did not provide proof of debt | ||
| Sear MC | W did not include ($1,262.18) because H did not provide proof of debt | ||
| Sears Financial | W did not include ($1,718.07) because H did not provide proof of debt | ||
| Gas Advantage MC | W did not include ($5,445.61) because H did not provide proof of debt | ||
| Faber | W did not include ($27,140) because H did not provide proof of debt | ||
| If W had included the debts not proven by the H it would be a total of ($139, 390.18) in debts on V-date in his name | |||
| Subtotal of Debts on V-date | ($63,000) | ($202,390.18) | |
| Net worth on V-date | $534,820 *this should be $514,320 |
$3,500 | $378,979.91 (adjusted) |
| Date of Marriage Assets | |||
| Household contents | W did not include $5,000 for H because H did not provide disclosure or proof of asset | ||
| Savings | W did not include $1,650 of savings for H because H did not provide proof of asset | ||
| Bell Canada Pension | W did not include $150,000 for the value of H’s Bell Canada Pension because she used the Family Law Value also called Imputed Value, which is the value of the pension accrued between the date of marriage and separation Peter Martin’s report page 10 confirms that his FLV exclude the value of the H’s pension accrued prior to marriage which was equal to 9.85 years of credited service. |
||
| DoM Net Worth | Nil | Nil | $5,650 if W had allowed H to deduct his savings and contents |
| Exclusions | $2,500 | W should only have excluded the $2,500 if she included it as an asset owned by her on V-date | |
| Subtotal Exclusions | Nil | ($2,500) | Nil |
| NFP | $536,820 *this should be $514,320 |
$500 | $372,329.99 if W accepted all figures listed by the H |
| Adjusted EP owing to Wife | $268,160 | $186,414.99 if the husband’s listed assets/debts were proven |
[124] In this case, the husband has not fulfilled his onus under s4(3) of the Family Law Act. He did not prove any of his deductions, being either his debts on the date of separation or his date of marriage deductions. As such, the wife has submitted an NFP statement that only includes debts for the husband on the date of separation that were proven and no date of marriage deductions for the husband.
[125] Despite court orders that he do so, the husband did not provide any disclosure to verify the debts he alleges he owed on the date of separation. Furthermore, the husband did not prove his net worth on the date of marriage, yet he claimed a date of marriage deduction. Again, despite court orders that he provide this disclosure, he failed to do so.
[126] Accordingly, the wife has not included the debts that the husband listed on the three financial statements sworn in this proceedings. It is the wife’s position that she was not aware of the husband having any debts on the date of separation other than the mortgage.
[127] As indicated in the Commentary column above, the wife incorrectly listed the entire value of the matrimonial home co-op without considering the disclosure from the Islamic Co-operative that the husband is only entitled to 90% of the appreciation in its value. Further, the wife incorrectly excluded the value of the land she owns in Morocco, without having included it as an asset on V-date. Upon correcting these two items, I find that the husband owes the wife an EP of $268,160.
[128] Had the husband complied with his financial disclosure obligations pursuant to the Family Law Rules and court orders made in this case, and proven his savings and savings plans on the date of separation; his debts on the date of separation and date of marriage deduction, his net family property may have been lowered and the resulting EP could have been lower. However, he did not do so. The disclosure obligation lies with the husband not the wife. The information that was not disclosed was entirely within the husband’s control. His failure to make full disclosure undermines the policies underlying the property division sections of the Family Law Act. Without proper disclosure, the net family property of the husband can only be calculated based on what items have been proven, not based on what the husband lists in three different financial statements without proof.
[129] Method of Payment of EP, Child Support Arrears and Spousal Support Arrears
[130] The wife has asked for an order that the EP and support arrears be paid to her as a direct rollover of the husband’s pension at Bell Canada into a pension in her name. This is possible as set out by Peter Martin in his pension valuation report. Mr. Martin’s report sets out that the husband’s Bell Canada pension is governed by the Pension Benefits Standard Act, R.S.C. 1985, c.32, (2nd Supp.).
[131] Section 10.2 of the Pension Benefits Standard Act (“PBSA”) provides as follows:
Transfer of Funds
No transfer without permission
10.2 (1) Subject to section 26, the administrator may transfer or permit the transfer of any part of the assets of the pension plan that relate to defined benefit provisions to another pension plan, including a pension plan to which this Act does not apply, only with the Superintendent’s permission.
[132] Section 10.3 of the PBSA provides as follows:
Separate Pension Plan
Establishment of separate pension plan
10.4 (1) The Superintendent may direct the administrator of a pension plan that is subject to the pension legislation of more than one jurisdiction to
(a) establish a separate pension plan for members employed in included employment, former members who were employed in included employment and any survivors of those members or former members; and
(b) transfer assets and liabilities relating to the members and former members of the separate pension plan, as well as to any survivors of those members or former members, from the original pension plan to the separate pension plan.
[133] Accordingly, I order the husband to take the steps under pursuant to the PBSA to transfer funds from his pension into another pension in the name of the wife, or to direct the administrator of his Bell Canada pension to establish a separate pension plan for the wife, into which the sums he owes to the wife under this order, including amounts on account of retroactive child support, retroactive spousal support and an equalization payment, can be paid.
Costs
[134] The wife seeks costs of the uncontested trial on a substantial indemnity basis in the sum of $13,707.00, or a partial indemnity basis in the sum of $8,224.38.
[135] She has submitted a Bill of Costs which appears to cover the period of time which includes a May 19th, 2021 court attendance. The time for the uncontested trial on June 7th, 2021, however, does not form part of the applicant’s Bill of Costs as it is listed as “TBD”. Further, the Bill of Costs does not have any attached dockets, making it impossible for the court to know exactly what time period is covered by the Bill of Costs.
[136] The successful party in family law litigation has no automatic right to full recovery of their costs.[^25] However the Rules do provide for an entitlement to full recovery of costs in specific circumstances, including bad faith.[^26]
[137] As described earlier, the respondent’s refusal to comply with his disclosure obligations and his total disregard of the Paisley 2019 spousal support order rises to the level of bad faith. I therefore find that the applicant is entitled to recovery of her costs incurred in relation to this trial.
[138] I have reviewed the hourly rates of the lawyers and law clerk involved in this matter and find all of it to be reasonable. I therefore award the applicant her costs on a full-recovery basis in the amount of $13,707.30, inclusive of fees, disbursement and HST.
Order
[139] Order to go as follows:
a. Pursuant to ss. 15.1 and 15.2 of the Divorce Act, and ss. 4 and 5 of the Family Law Act, in satisfaction of the wife’s claims for retroactive child support, retroactive spousal support and property division pursuant to Part I of the Family Law Act, subject to b. below, the respondent shall pay the applicant the following amounts:
i. Child support arrears, fixed in the sum of $45,707.33;
ii. Spousal support arrears, fixed in the sum of $71,322.02; and
iii. An equalization payment in the sum of $268,160.
b. Pursuant to ss. 10.2 and 10.4 of the Pension Benefit Standards Act, to satisfy the payments set out in a. above, the respondent shall take the necessary steps to direct the administrator of his pension at Bell Canada to create a separate Bell Canada pension in the name of the applicant in her own right, which shall continue for the applicant’s lifetime, even if the respondent predeceases her. Upon creating the separate Bell Canada pension in the name of the applicant, the respondent shall cause the total sum of $385,189.35 (a.(i)-(iii)) to be rolled from his Bell Canada pension into a pension in the name of the applicant If there are insufficient funds in the respondent’s Bell Canada pension to rollover the total amount of a.(i) – (iii), then the respondent shall arrange to borrow against the equity in the matrimonial home to satisfy the sums owing to the applicant or pay the sum to the applicant out of the proceeds of sale from the sale of the matrimonial home, whichever event comes first.
c. Pursuant to s. 15.2 of the Divorce Act, commencing July 1, 2021 and on the 1st day of each following month, the respondent shall pay the applicant ongoing spousal support in the sum of $1,706 a month, based on his income of $86,422, for an indefinite period;
d. The applicant shall confirm that the calculations set out in the net family property statement above are correct and advise the court within five days of any necessary corrections.
e. The respondent shall pay the costs of this trial in the amount of $13,707.30 (inclusive of HST and disbursements), and the said costs shall be enforceable as spousal support by the Director, Family Responsibility Office (Ontario).
Madam Justice Kraft
Released: June 15, 2021
COURT FILE NO.: FS-13-385391
DATE: 20210615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Zahra Outaleb
Applicant
AND:
Muhammad Eric Waithe
Respondent
REASONS FOR JUDGMENT
M. Kraft, J.
Released: June 15, 2021
[^1]: Hereinafter referred to individually by name, Raheem, Saffiyya, Sarah and/or Adam. [^2]: The wife calculates the spousal support arrears from 2015 to June 2021, to be $92,586 using the mid-range of the Spousal Support Advisory Guidelines (“SSAGs”) and the annual income for the husband from 2015-2020. She nets this lump sum down by 20% to arrive at a figure of $74,068, to account for the fact that lump sum spousal support arrears are not taxable in her hands or deductible by the husband. [^3]: The wife’s Application, dated March 20, 2013; The wife’s financial statement (“FS”), sworn on March 14, 2013; The wife’s FS, sworn on October 15, 2018; The wife’s FS, sworn on March 20, 2019; The wife’s FS, sworn on April 30, 2021; The wife’s FS, sworn on June 3, 2021; The wife’s Legal Submissions, dated June 1, 2021; The wife’s affidavit, sworn on May 28, 2021; The affidavit of Abdullah Outaleb, sworn on May 31, 2021; The affidavit of Raheem Waithe, sworn on May 28, 2021; The affidavit of Saffiyyah Waithe, sworn on May 28, 2021; The affidavit of Sarah Waithe, sworn on May 31, 2021; The affidavit of Adam Waithe, sworn on May 31, 2021; The husband’s Answer dated November 28, 2013; The husband’s FS, sworn on November 28, 2013; The husband’s FS, sworn on January 12, 2017 (or December 1, 2017); The husband’s FS, sworn on April 10, 2019; the wife’s Bill of Costs; and the wife’s Closing Submissions, dated June 9, 2021. [^4]: All income information for the husband is found in his Notices of Assessment attached as Exhibits “D”, “F”, “H”, “J”, “M”, “P”, “R”, “S”, and “U” to the wife’s affidavit, sworn on June 9, 2021. [^5]: Affidavit of Raheem Waithe, paras. 20, 21, 22 and 23; Affidavit of Saffiyya Waithe, paras 21-34; Affidavit of Sarah Waithe, paras 18-26; and Affidavit of Adam Waithe, paras. 19-21. [^6]: Exhibit “X” to the wife’s affidavit, sworn on June 1, 2021. [^7]: Metz v. Metz, 2004 ABQB 528, [2004] A.J. No. 925 (Alta. Q.B.); supplementary reasons, [2004] A.J. No. 1558 (Alta. Q.B.); Bennett v. Bennett, 2005 ABQB 984, [2005] A.J. No. 1824 (Alta. Q.B.); Bockhold v. Bockhold, 2010 BCSC 214, [2010] B.C.J. No. 283 (B.C.S.C.). [^8]: Strang v. Strang, 1992 CanLII 55 (SCC), [1992] S.C.J. No. 55 (S.C.C.); Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. No. 25 (S.C.C.). [^9]: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016, at pg. 97. [^10]: In D.B.S, the four factors that a court should consider before awarding retroactive child support include, the reason for the recipient parent’s delay in seeking spousal support, the conduct of the payor parent; the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship. [^11]: Dextrase v. Dextrase, 2004 BCSC 215, [2004] B.C.J. NO. 266 (S.C.); Hariram v. Hariram, 2001 CanLII 32749 (ON SCDC), 2001 CarswellOnt 732 (Div. Ct.). [^12]: A.A.M. v. R.P.K. 2010 ONSC 930, [2010] O.J. No. 807 (S.C.), where Pazaratz, J. cited Phillip Epstein on this issue from his annotation on Fisher v. Fisher. [^13]: A.A.M. v. R.P.K., Ibid.; Keast v. Keast, 1986 CanLII 6323 (ON SC), 1986 CarswellOnt 257 (Dist. Ct.); Ferguson v. Ferguson, 2008 CarswellOnt 1676 (S.C.); Fletcher v. Fletcher, 2003 ABQB 890 (Q.B.). [^14]: Marinangeli v. Marinangeli, Supra.; A.A.M. v. R.P.K., Supra., Judd v. Judd, 2010 CarswellBC 246 (S.C.). [^15]: Hartshorne v. Hartshorne, 2009 BCSC 698, 2009 70 R.F.L. (6th) 106 (B.C.S.C.), rev’d in part 2010 CarswellBC 1618 (C.A.); Farnum v. Farnum, 2010 CarswellOnt 6917 (O.C.J.). [^16]: Hartshorne v. Hartshorne, Ibid.; Sawchuk v. Sawchuk, 2010 CarswellAlta 32 (Q.B.), Judd v. Judd, Ibid. [^17]: Judd v. Judd, 2010 CarswellBC 246 (S.C.). [^18]: Ibid. [^19]: Sawchuk v. Sawchuk, Supra. [^20]: Hartshorne v. Hartshorne, Supra.; Chalifoux v. Chalifoux, 2006 ABQB 535, rev’d on other grounds 2008 ABCA 70 (C.A.); C. (D.B.) v. W. (R.M.), 2006 CarswellAlta 1723 (Q.B.); Kelly v. Kelly, 2007 BCSC 227 (S.C.); Rozen v. Rozen, 2003 BCSC 973 (S.C.). [^21]: Hartshorne v. Hartshorne, Supra.; Fletcher v. Fletcher, 2003 ABQB 890 (Q. B.); Robinson v. Robinson, 1993 CarswellOnt 349 (C.A.). [^22]: Bryant v. Gordon, 2007 BCSC 946 (S.C.). [^23]: Bryant v. Gordon, Ibid.; Kelly v. Kelly, Supra.; Walsh v. Walsh (2006), 2006 CanLII 20857 (ON SC), 29 R.F.L. (6th) 164 (Ont. S.C.J.). [^24]: As found on the Government of Canada website, retrieved from https://www.canada.ca/en/revenue-agency/services/tax/individuals/frequently-asked-questions-individuals/canadian-income-tax-rates-individuals-current-previous-years.html. [^25]: Beaver v Hill, 2018 ONCA 840, at para. 13. [^26]: See Rule 24(18).