COURT FILE NO.:428/16

DATE: 20210707

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dian Natasha Riley Doyle

Applicant

– and –

Aidan John Charles Doyle

Respondent

Self-Represented

Patricia Lucas

HEARD: September 30, October 1,2,3, November 26,27,28, December 9,10,11,12, 2019; March 3, November 23,24,25,26,27,30, 2020; January 18,19,20,28, 2021

The honourable justice m. j. donohue

REASONS FOR JUDGMENT

OVERVIEW

[1] This matrimonial trial dealt with financial issues following a 28-and-a-half year marriage.

[2] Ms. Riley, born in 1962, is now 59 years of age. Mr. Doyle, born in 1956, will be 65 this fall. They have one child, a daughter, born in 1993, who is now 28 years of age. She lives independently in Toronto.

[3] Ms. Riley has been on a disability income since 1990 following the first of four car accidents. Mr. Doyle has held a number of different jobs but since 2009 has earned commission income with SAS Global, an American supplier of steel mining materials.

[4] For the purposes of trial, it was agreed that the separation date for valuations was January 1, 2015. The couple did not physically separate until January 14, 2016 following an assault by Mr. Doyle on Ms. Riley. Mr. Doyle pled guilty to a charge of common assault.

[5] The parties jointly own three properties; the matrimonial home on Cheval Drive in Grimsby, a rental investment property in Flamborough, and a rental property on Seaton Street, Toronto, which they own with their daughter.

[6] Ms. Riley seeks a number of court orders with the focus being spousal support and an unequal division of net family property.

[7] Mr. Doyle seeks orders for the sale of the joint properties and an equalization of net family property.

[8] Both parties seek an order for divorce.

[9] The facts as set out above are not in dispute.

SPOUSAL SUPPORT

Entitlement to Spousal Support

[10] Mr. Doyle accepts that spousal support was owed by him on a needs basis, from the date of the application in July 2016, as a result of the breakdown of the marriage.

[11] Ms. Riley submitted that spousal support was owed on a compensatory basis from the date of their physical separation in January 2016.

The Law

[12] Section 15.2 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides the court with jurisdiction to order spousal support.

[13] Section 15.2(4) notes the factors which the court is to consider, those being “the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.”

[14] Section 15.2(5) provides that “the court shall not take into consideration any misconduct of a spouse in relation to the marriage.”

[15] Section 15.2(6) states the objectives of spousal support orders;

(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.

[16] As noted by McLachlin J. in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 1, it is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union.

Ms. Riley’s Work

[17] Ms. Riley worked full time as a district manager for La Vie en Rose at the beginning of their marriage. She had also done some writing. Her evidence was that her career was stopped by her early car accidents such that she has been on a disability income since 1990.

[18] The evidence supports that she was injured in four motor vehicle accidents; December 9, 1990; May 9, 1994; April 30, 2010; and June 3, 2010.

[19] She testified that, but for the accidents, she “would have been employed full time”.

[20] Her daughter was born in January 1993 at a time when she was still disabled from the 1990 accident. She had back surgery in October 1993 and required help with both the household and her daughter’s care for a time. She described being seriously injured again in May 1994. From those injuries, which included a brain injury, she said she was unable to do work as a writer as she had migraines, blackouts and foggy thinking.

[21] Ms. Riley has long been in receipt of the CPP disability pension and she qualified for the disability tax credit as of 2011. Tort and accident benefit settlements from the two 1990s accidents were put into a structured settlement to provide an income stream for her and a lump sum payout for her retirement.

Analysis

[22] From Ms. Riley’s own evidence, I accept that her injuries have prevented her from re-entering the employment world. There is no evidence that there was a financial consequence or sacrifice flowing from her marriage and childcare.

[23] Accordingly, I order spousal support on a needs basis, as acknowledged by Mr. Doyle, and not on a compensatory basis.

Mr. Doyle’s Commissions for Spousal Support Purposes

Gross Income in U.S. Dollars

[24] As Mr. Doyle made sales for SAS Global in the United States, he earned commissions in U.S. dollars. For many years he did not have to draw all his earnings in any calendar year, and could let some of the earnings remain in a commission pool account.

[25] Ms. Riley’s expert accountant confirmed that this was a “totally allowable tax strategy to manage taxable income”.

[26] For this reason, both Ms. Riley and Mr. Doyle, focused on determining what the gross commissions earned were, without reference to what was declared as income on his tax returns.

[27] For the five years from 2016 to 2020, Ms. Riley submits that the gross commissions earned totalled $562,165.01 (U.S.). Mr. Doyle submits that they totalled $557,170.77.

[28] In initial submissions Mr. Doyle submitted that the paid commissions for 2020 were $105,737.20. However, there appeared to be errors in the 2018 commissions and I requested further submissions to be made.

[29] Mr. Doyle corrected the 2018 commission numbers but then submitted that the 2020 commissions were $7,075.98 less than previously stated.

[30] Ms. Riley pointed out that in doing his calculations, Mr. Doyle missed the September 2020 commissions earned of $7,075.98. When this is included, the 2020 gross commissions earned number is again $105,737.20 as reflected in his initial submissions.

[31] This correction brings his five year total of gross commissions earned to $564,246.75, which is just slightly higher than Ms. Riley’s calculations.

[32] The breakdown of commissions earned is as follows:

2016 $152,343.89

2017 $111,275.04

2018 $102,819.66

2019 $92,070.96

2020 $105,737.20

Conversion to Canadian Dollars

[33] The parties disputed the conversion rate from the U.S. dollar commissions to buy Canadian dollars.

[34] Ms. Riley’s submissions proposed that the gross commissions in Canadian dollars over the five year period came to $740,603.59.

[35] Mr. Doyle’s approach resulted in a five year total of $730,117.03.

[36] Ms. Riley submitted that the Bank of Canada conversion rate should be used for each of the five years’ earnings.

[37] Mr. Doyle provided evidence of the actual average rate of exchange when he converted his income from the U.S. into Canadian dollars.

[38] The evidence demonstrates that the actual conversion for 2016 and 2017 was slightly less than the Bank of Canada average conversion rate. For 2018 his evidence shows that the actual rate was the same as the Bank of Canada rate. For 2019 he has used the Bank of Canada average rate. He proposed to use the Bank of Canada average rate for 2020 as well but misstated it as 1.327 rather than the rate of 1.3415.

[39] I am satisfied that the evidence supports the rates chosen for 2016 and 2017 for what he was actually able to garner in Canadian funds on exchange. Thereafter, the average Bank of Canada rate is appropriate.

[40] Accordingly,

2016 $152,343.89 x 1.273 = $193,933.77 (Canadian $)

2017 $111,275.04 x 1.263 = $140,540.37

2018 $102,819.66 x 1.295 = $133,151.45

2019 $92,070.96 x 1.327 = $122,178.16

2020 $105,737.20 x 1.3415 = $141,846.45

[41] The five year total commissions earned in Canadian dollars is therefore $731,650.20.

Other Income

[42] Mr. Doyle declared his half of the rental income from the jointly owned Flamborough property to Revenue Canada on his tax returns.

[43] The evidence supports that the mortgage and expenses exceeded the actual rental income. Neither party included the rental income in their calculations for spousal support.

[44] I accept this approach as even if it was included it would be shared and increase Ms. Riley’s and Mr. Doyle’s incomes by an equal amount. It would not change the spousal support calculation.

[45] Mr. Doyle also declared income from playing music in a band to Revenue Canada. It appeared to net him approximately $2,000 each year after expenses.

[46] Ms. Riley’s expert accountant considered that it was a hobby and should not be included in the calculations of Mr. Doyle’s income for support.

[47] Neither Ms. Riley nor Mr. Doyle have included the music income. I accept this approach in light of it being a modest income and that since the pandemic that income has ceased.

[48] Ms. Riley’s final reply submissions included in the income for 2019 and 2020 an additional $157,726.09 which Mr. Doyle withdrew from his commission pool balance.

[49] Her expert accountant testified that the income for support was the commissions earned and not what was drawn from the commission pool balance where the earned commissions accumulated. The accountant said he did a “pool continuity schedule” to cross-check what actual commissions were earned. He said he was able to reconcile the numbers “to the penny”.

[50] The accountant confirmed that the unusually high income declared on the recent tax return was due to drawings from the commission pool which could be the equivalent of 15 months’ revenue.

[51] Both Ms. Riley’s accountant and Mr. Doyle considered that the gross income was the commissions earned in each given year. These figures were to be used rather than the reported commission pool drawings as shown on Mr. Doyle’s tax return.

[52] I accept evidence of the expert that the funds withdrawn from the commission pool balance are not additional income for calculations of support.

Are Deductions of Expenses Permitted?

[53] Mr. Doyle has long claimed his commissions as business income and deducted expenses to earn that income on his tax returns. His tax returns from 2012 to 2019 were filed with the court.

[54] Ms. Riley disputed his ability to properly deduct expenses and relied on her expert accountant’s evidence. He described Mr. Doyle as an employee and therefore not permitted to deduct expenses.

[55] Ms. Riley’s expert largely relied on a letter of employment from 2009 by SAS Global to conclude that Mr. Doyle was an employee and not self-employed.

[56] Mr. Doyle gave evidence that when he started with SAS Global in 2009 they proceeded on the contract as set out in the letter wherein he submitted his expenses to SAS and was reimbursed. He later found that SAS then deducted from his commissions earned the expenses that they had paid to him. He renegotiated with them in 2010 or 2011 and thereafter did not bother to submit expenses to SAS which would later be deducted. He simply claimed the expenses from the commissions he declared on his taxes to reduce his tax liability.

[57] Ms. Riley’s expert pointed to Mr. Doyle not having a business number as indicia that he was not self-employed. Mr. Doyle provided evidence that he applied for a business number in 2017 and received one.

[58] Ms. Riley’s expert noted that Mr. Doyle did not collect GST/HST to suggest that he was not self-employed. However, it is clear that SAS did the billing and shipping in the U.S. so I am satisfied that this fact does not negate self-employment.

[59] The expert suggested that if Mr. Doyle had only one client, SAS, this was more consistent with employment than self-employment. Both Ms. Riley and Mr. Doyle testified that he has also sold for another company, Aztech, in the past, but just not in recent years.

[60] The expert also suggested that SAS controlled the amount of Mr. Doyle’s pay, the way an employer would do for an employee. Mr. Doyle testified that he varied the percentage he would charge on a job. His evidence is supported by the commission statements.

[61] Ms. Riley’s expert testified that a self-employed person would be able to hire an assistant. Mr. Doyle provided evidence that in 2019 he did hire an assistant.

[62] Ms. Riley’s expert did acknowledge that self-employment can come from commission income. The fact that Mr. Doyle is responsible for his own CPP contributions is also consistent with self-employment.

[63] There is certainly no evidence that SAS Global has been paying for Mr. Doyle’s expenses for the last 10 years.

[64] Ms. Riley’s expert reviewed the tax returns and notices of assessment and confirmed that they were in order. The CRA has never challenged the expenses he has claimed.

[65] On the evidence, I am satisfied that Mr. Doyle is permitted to deduct business expenses from his business income in accordance with the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.).

Which Expenses are Appropriate to Deduct?

[66] For much of the trial Ms. Riley’s focus was on trying to establish that Mr. Doyle was an employee and therefore not permitted to make deductions on his taxes. However, at the end of the trial she stated, “I am not of the understanding that Mr. Doyle cannot deduct expenses. That would be unrealistic.”

[67] In her closing submissions, she proposed that his expenses be capped at 20%-30%. There was no evidence in the trial to support that approach.

Particulars of the Expenses Deducted

[68] Mr. Doyle seeks a deduction for business expenses as follows:

2016 $44,787.39

2017 $36,159.25

2018 $30,321.47

2019 $38,624.53

2020 $37,473.16 (averaged)

[69] This is a percentage of his gross commission earnings which I have noted above as follows:

2016 23% of $193,933.77

2017 26% of $140,540.37

2018 23% of $133,151.45

2019 32% of $122,178.16

2020 26% of $141,846.45

[70] As noted above, none of the expenses claimed by Mr. Doyle have been disallowed by Revenue Canada.

The Law

[71] Section 6.1 of the Spousal Support Advisory Guidelines (“SSAG”) provides that the starting point for the determination of income under the SSAG is the definition of income under the Federal Child Support Guidelines (“CSG”). Sections 15-20 of the CSG, along with Schedule III of the SSAG, create a framework for income determination.

[72] Of particular relevance is s. 19(1) of the CSG, which states that “The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: ….(g) the spouse unreasonably deducts expenses from income.”

[73] Section 19(2) specifically states that “For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.”

[74] In Sobiegraj v. Sobiegraj, 2014 ONSC 2030, at para. 64 McDermot J. noted that the onus is on the party asking the court to impute income to establish sufficient grounds for their request. Once the claimant establishes an evidentiary basis, the onus shifts to the responding party to prove that the claimed expenses are reasonable. At paras. 67-68, McDermot J. stated the following:

67 However, it appears that once the claimant establishes that evidentiary basis, the onus shifts to the responding party to prove that the expenses that are claimed are reasonable. Again, as noted above, this only makes sense as the proof of the reasonableness of the expenses lies solely in the possession and control of the party claiming those deductions. It would be unfair to put the entire burden on the claimant to prove that the expenses were unreasonably claimed as the information lies in the hands of the putative support payor. Therefore, once the claimant has provided an evidentiary basis for the imputation of income, the responding party must provide some clarity as to whether the expenses can be reasonably deducted for child or spousal support purposes… [Emphasis added.]

68 The onus resting on the party seeking the deduction to adequately explain the business deductions that he or she claims has been confirmed in several cases: see Bekkers v. Bekkers, supra, at paragraph 25, Joy v. Mullins, supra at paragraph 15 and Lo v. Lo, 2011 ONSC 7663 (Ont. S.C.J.) at paragraphs 57 and 58.

Analysis

[75] The challenge for the court is that while Ms. Riley was arguing that Mr. Doyle was not entitled to deduct any expenses, there was not much exploration of the evidentiary grounds to impute income back to Mr. Doyle. Nonetheless, the court is obliged to look at the reasonableness of the expenses where there is some evidence.

A) Legal, Accounting and Other Professional Fees

[76] During the marriage Mr. Doyle claimed such fees as follows:

2012 $4,179.32

2013 $10,619.85

2014 $7,154.39

2015 $6,579.56

[77] After separation, he claimed fees as follows:

2016 $17,844.58

2017 $2,825.00

2018 $1,275.49

2019 $1,350.00

2020 (no information)

[78] Ms. Riley testified that she believed the legal and professional fees in 2016 related to Mr. Doyle’s criminal charges and the matrimonial litigation. Mr. Doyle did not testify on this issue.

[79] During the marriage, the fees averaged $7,133 per annum. Apart from 2016, the post-separation fees averaged $1,816.83 per annum. Mr. Doyle specifically testified that the fees on his 2018 return were accounting fees.

[80] I draw an adverse inference from Mr. Doyle’s failure to provide any meaningful explanation for the unusually high expense of $17,844.58 in 2016 and deny that deduction beyond his demonstrated post-separation accounting expenses of $1,816.83.

[81] Accordingly, I reduce his 2016 expenses of $44,787.39 by $16,027.75.

B) Rent

[82] Mr. Doyle was cross-examined on his rental expense for his office. He claimed 50% of his rent for his office. I accept that this is a reasonable expense as there is no other office space for SAS Global in Canada.

C) Motor Vehicle Expenses

[83] Mr. Doyle was extensively cross-examined on his vehicle expenses which were as follows:

2016 $11,911.82

2017 $14,440.14

2018 $13,750.81

2019 $14,111.33

2020 (no information)

[84] Roughly half of the expense is attributable to lease payments and the balance for insurance, maintenance and mileage.

[85] Mr. Doyle admitted that some of the mileage may relate to his attendance at musical gigs. He pointed out however that this was perhaps a trip to Toronto once a month. This is minor in comparison to his travel for work which included trips to mines in Cochrane, Northern Quebec, and Labrador, or to SAS Global meetings in Michigan.

[86] Mr. Doyle provided sufficient evidence to support the vehicle expenses claimed, except for 2020 as discussed below.

D) Health Insurance

[87] Mr. Doyle claimed deduction of premiums for a private health service plan covering himself and Ms. Riley as follows:

2016 $5,087.89

2017 $5,844.69

2018 $6,085.22

2019 -0-

[88] Ms. Riley’s expert testified that this was not an expense to earn business income and should not be deducted for calculating spousal support. Mr. Doyle did not provide any basis to support his position that this deduction should be permitted. Although accepted by Revenue Canada, I do not consider it a proper deduction from income for our purposes.

[89] Accordingly, I adjust the expenses to be deducted as follows:

2016 $44,787.39 - $16,027.75 - $5,087.89 = $23,671.75

2017 $36,159.25 - - $5,844.69 = $30,314.56

2018 $30,321.47- - $6,085.22 = $24,236.25

2019 $38,624.53 = $38,624.53

E) 2020’s Estimated Expenses

[90] Mr. Doyle proposed to average his expenses for 2016 to 2019 to determine his expected expenses for 2020.

[91] This is a reasonable approach but for the evidence from Mr. Doyle that during the pandemic he was not able to travel. It would be expected that his costs for fuel, 407 and parking charges would significantly reduce. These expenses of approximately $4,000 per annum of prior years should not be included for 2020.

[92] In 2019, Mr. Doyle included a one time expense for a sub-contractor in the amount of $12,750, which Mr. Doyle testified he would not continue. It is therefore not appropriate to include that expense in averaging the expenses for 2020.

[93] A reasonable estimate for 2020’s expenses is therefore as follows:

2016 $23,671.75

2017 $30,314.56

2018 $24,236.25

2019 $38,624.53 - $12,750 = $25,874.53

Total Average $26,024.27 less Fuel/407 $4,000 = $22,024.27

Conclusion on Net Income for Spousal Support

[94] Accordingly, I have determined Mr. Doyle’s net income after appropriate expenses are deducted to be as follows:

2016 $193,933.77 - $23,671.75 = $170,262,02

2017 $140,540.37 - $30,314.56 = $110,225.81

2018 $133,151.45 - $24,236.25 = $108,915.20

2019 $122,178.16 - $38,624.53 = $83,553.63

2020 $141,846.45 - $22,024.27 = $119,822.18

[95] As a portion of gross earnings, I have permitted expenses of 12.2% in 2016; 21.6% in 2017; 18.2% in 2018; 31.6% in 2019; and 15% in 2020.

Ms. Riley’s Income

[96] Mr. Doyle submitted that Ms. Riley has received CPP disability benefits of $10,729.44 per annum since 2016.

[97] From her notice of assessment in 2016 she only earned $8,777. Thereafter it increased to $10,729.44 per annum.

[98] Ms. Riley also receives non-taxable income from a structured settlement of $23,577.40 per annum.

[99] Ms. Riley’s final submissions were that she earned $33,000 per annum.

[100] For the purposes of calculating spousal support Mr. Doyle’s position, since the beginning of trial, has been that Ms. Riley’s non-taxable income must be grossed up for tax such that her income is to be considered a gross amount of $38,770.56 for 2016 and $40,723 per annum for 2017-2020.

[101] Pursuant to the SSAG this is the correct approach to consider what income Ms. Riley has available to her.

Ms. Riley’s Expenses

[102] Ms. Riley’s financial statement suggested that she had monthly expenses of $9,652.54 per month or $115,830.48 per annum.

[103] She acknowledged that she overstated the property taxes by $166 per month or $1,992 per annum. Also, she has not actually paid any of the taxes since 2016.

[104] She suggests that she has debt payments of $4,000 per month or $48,000 per annum. The only debts she claimed in September 2019 were a total of $14,995. These would have to have been paid out long since. She did not provide documentary proof of such debt payments.

[105] Ms. Riley claimed $300 per month or $3,600 per annum for vacation expenses. However, her evidence was that her time away was at friends’ cottages, or that she may share a cottage rental at a cost of $400-$600. If this was the case that would be, at most, a monthly cost of $50 per month or $600 per annum.

[106] Her needs are therefore more properly stated as $5,236.54 per month or $62,838.48 per annum.

[107] Ms. Riley’s grossed up income for the five years from 2016 to 2020 of roughly $40,000 per annum comes to $200,000. Over that time, Mr. Doyle has paid spousal support pursuant to interim, without prejudice, court orders for a total of $116,007. Her total income for the five years has therefore been approximately $316,007 or $63,201.40 per annum, which would have met her expenses.

Mr. Doyle’s Ability to Pay

[108] Mr. Doyle does not dispute that he has the ability to pay support while he is earning the commission income until his proposed retirement in December 2023.

[109] After that time he will rely on the RRSP, which through day trading has risen to $425,000, and the equity from the jointly owned properties. He will then be in a similar income position to Ms. Riley.

Range of Spousal Support

[110] On the incomes I have determined for the parties, there is a range of support suggested by the SSAGs.

[111] I accept Mr. Doyle’s proposal that the high end of the range is appropriate as this considers Ms. Riley’s medical needs noted below, as well as his means and ability to pay.

Commencement of Spousal Support

[112] Ms. Riley filed her application in July 2016 but seeks retroactive spousal support to commence six months earlier on February 1, 2016. In other submissions, she appears to suggest that she is seeking it to commence on January 1, 2016.

[113] Mr. Doyle submits that retroactive support is not properly payable but acknowledges that he owes support as of the date of notice on July 2016.

The Law

[114] In MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 24, the Court of Appeal for Ontario described the initiation of proceedings as the “usual commencement date” for spousal support entitlement.

[115] This was acknowledged by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, at para. 211. However, notwithstanding this general rule, Cromwell J. held that the courts have the discretion to order retroactive support depending on the circumstances. See para. 211:

211 In D.B.S., Bastarache, J. referred to the date of effective notice as the “general rule” and “default option” for the choice of effective date of the order (paras. 118 and 121; see also para. 125). The date of the initiation of proceedings for spousal support has been described by the Ontario Court of Appeal as the “usual commencement date”, absent a reason not to make the order effective as of that date: MacKinnon v. MacKinnon (2005), , 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175, at para. 24. While in my view, the decision to order support for a period before the date of the order should be the product of the exercise of judicial discretion in light of the particular circumstances, the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in how the relevant considerations are weighed. It is important to note that, in D.B.S., all four litigants were requesting that child support payments reach back to a period in time preceding their respective applications; such is not the case here. [Emphasis added.]

[116] When deciding whether to grant retroactive spousal support, Cromwell J. stated at para. 207 that the factors laid out in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 31, are relevant:

207 While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively. [Emphasis added.]

[117] For example, in Taylor v. Taylor, 2011 ONSC 3690, the court exercised its discretion to order spousal support prior to the initiation of proceedings of October 2008, finding that the applicant had experienced financial hardship in the months following the separation. See para. 9:

9 I have also considered that in Ontario, the usual commencement date for spousal support entitlement is the initiation of proceedings (MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (Ont. C.A.) at paragraph 24). I balance this consideration against the fact that the spouse who has undergone hardship may be compensated by way of a retroactive award (S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.) at paragraph 113). There is no question that the applicant experienced financial hardship in the months following separation. It is my opinion that the applicant is entitled to spousal support commencing in July, 2008 when the respondent ceased contributing to the family expenses.

Analysis

[118] Although in February 2016 Ms. Riley stopped depositing her monthly annuity income into their joint account, Mr. Doyle continued to deposit his SAS Global draws, as well as the rental income from the Flamborough property, until sometime in May 2016. Ms. Riley accessed that account until May 2016. A number of the utility expenses continued to be paid until May. As noted, she had her own income, which she deposited into a private account.

[119] Ms. Riley continued to reside, from January 2016 to date, in the matrimonial home which was mortgage free. She has also had all the contents.

[120] Ms. Riley’s discussion of financial hardship was rearranging the billing for the utilities and requests by the bank to service the line of credit which Mr. Doyle used in March. She provided one receipt showing she had paid $30. Thereafter she said she paid in cash but could not confirm what payments she made. She testified that Mr. Doyle’s ceasing to make deposits in their joint bank account in May 2016 caused her credit rating to suffer.

[121] The only other consideration for financial hardship was Mr. Doyle’s cancellation of the health insurance policy in May 2016. After a motion, on consent, that policy was however reinstated by Mr. Doyle retroactive to May 1, 2016, by order of Lococo J. on August 4, 2016.

[122] I am not persuaded that Ms. Riley established financial hardship before the effective notice in July 2016. There is no basis for me to exercise my discretion to award support before then.

[123] Accordingly, I order spousal support to commence as of July 1, 2016.

Spousal Support Owed to Date

[124] The court prepared DivorceMate calculations based on the incomes found. They are attached as Appendix A.

[125] The high range of spousal support pursuant to the SSAGs for the six months in 2016 on Mr. Doyle’s income of $170,262 and Ms. Riley’s taxable income of $8,777 and non-taxable income of $23,577 (grossed up) is $5,023 per month or a total of $30,138.

[126] The high range of spousal support pursuant to the SSAGs for 2017 on Mr. Doyle’s income of $110,225 and Ms. Riley’s taxable income of $10,759 and non-taxable income of $23,577 (grossed up) is $2,580 per month or a total of $30,960.

[127] The high range of spousal support pursuant to the SSAGs for 2018 on Mr. Doyle’s income of $108,915 and Ms. Riley’s income as noted above is $2,527 per month or $30,324.

[128] The high range of spousal support pursuant to the SSAGs for 2019 on Mr. Doyle’s income of $83,554 and Ms. Riley’s income as noted above is $1,460 per month or $17,520.

[129] The high range of spousal support pursuant to the SSAGs for 2020 on Mr. Doyle’s income of $119,822 and Ms. Riley’s income as noted above is $2,968 per month or $35,616.

Determining Mr. Doyle’s income for 2021

[130] For 2021’s support to date and for the future, a determination is necessary as to what Mr. Doyle’s income is most likely to be.

[131] It is acknowledged that as a commission salesman, Mr. Doyle’s income fluctuates each year. The reasonable approach is to average prior years’ income to predict the future.

[132] Mr. Doyle’s income in 2016 was unusually high due to a single order for a mine up north. He testified that that order was “off the charts bigger than anything I’ve seen….in the 11 years I’ve worked for the company”. He thought it was not likely to happen again.

[133] Even Ms. Riley’s expert accountant acknowledged that 2016’s earnings were an “anomaly”.

[134] Accordingly, I consider it more reasonable to average his income, after deduction of permitted business expenses, for the four years of 2017 to 2020. This figure is $105,629.

[135] The high range of spousal support pursuant to the SSAGs for 2021 on Mr. Doyle’s average income of $105,629 and Ms. Riley’s income as noted above is $2,394 per month. The support owed for the seven months of 2021 to this judgement is $16,758.

Total Spousal Support Payable

[136] The total spousal support payable from July 2016 to July 2021 is therefore $131,178.

[137] Ms. Riley in reply submissions stated that Mr. Doyle has paid support in the amount of $115,402.

[138] The court requested Mr. Doyle’s submissions in response. Mr. Doyle has provided a FRO statement which shows a total of $116,007.

[139] The FRO statement is presumed to be correct.

[140] Accordingly, I find a shortfall of spousal support payable to date of $15,171.

Future Spousal Support

Positions of the Parties

[141] Both parties have asked the court to order a lump sum payment for future spousal support.

[142] Ms. Riley submitted that she was owed mid-range spousal support of $6,000 on an income of $162,949 until she is 68 (a further nine years) totalling $720,000 for a lump sum payment.

[143] Mr. Doyle submitted that he owed high-range spousal support of $2,434 on an income of approximately $106,000 until December 2023 totalling $87,645 for a lump sum payment. At that time, he planned to retire at the age of 67 and Ms. Riley would be 62.

[144] As discussed above, I have found that the future spousal support is to be $2,394 per month based on an average income of $105,629 for Mr. Doyle.

Duration of Spousal Support

[145] Mr. Doyle is now 64 and a half years of age and Ms. Riley is 59. At trial, Ms. Riley had sought support to be considered payable for a further five years to May 2027 when she turned 65. In submissions, she proposed a further nine years to May 2030 when she turned 68. At that date, Mr. Doyle would be almost 74.

[146] Mr. Doyle proposes the December 2023 date because this is when Ms. Riley’s structured annuity matures, in the amount of $600,000. She testified that she intends to roll that fund over by purchasing a guaranteed, though taxable, annuity payment for her continued support.

[147] It is a reasonable approach to consider Mr. Doyle’s proposal of continuing his obligation past age 65, a common age for retirement, to age 67, to coincide with Ms. Doyle having access to her annuity pay-out.

[148] It is also appropriate to take into consideration the equalization payment noted below and the equity expected from the two jointly owned properties, one of which is mortgage free.

[149] On Mr. Doyle’s retirement he will not have means to pay spousal support. He will be relying on the equity he receives from the sale of the jointly owned properties and an RRSP which is currently $425,000.

[150] Accordingly, I consider that future spousal support is to be resolved based on a lump sum payment of $2,434 per month ending December 2023.

[151] I order a lump sum payment of $40,407 to satisfy future spousal support. This number was arrived at by using the midpoint of the Spousal Support Lump Sum calculation pursuant to the DivorceMate calculations, attached as Appendix A.

Life Insurance

[152] The parties agreed that should I decide to order a lump sum spousal support payment then there was no need to consider ordering life insurance to secure future support.

[153] As I have ordered a lump sum, I find there is no need for life insurance.

EQUALIZATION

[154] At the commencement of trial Mr. Doyle abandoned his position that the date of separation was January 2016. He accepted that the valuation date for net family property was January 1, 2015.

[155] Ms. Riley’s position was that Mr. Doyle owed her an equalization payment of $190,113.66. Mr. Doyle’s position was that he owed $71,855.71.

[156] Ultimately, there was some common ground in their comparisons of net family property which were filed with the court. I address the areas where there were differences.

Determination of Values and Exemptions

Land

[157] The value of the jointly owned matrimonial home on Cheval Drive was disputed. Ms. Riley proposed that its value was $656,750. Mr. Doyle proposed that it’s value was $1,070,000. Its actual value currently will be determined by the market on its sale.

[158] The only evidence filed was the appraisal of September 19, 2019 by CHS Realty for $850,000. As the property is equally owned it does not affect the equalization result. I accordingly will rely on the appraisal in evidence that the value is $425,000 for each party’s interest in the exercise of equalization.

[159] The parties also jointly own a rental property in Flamborough. Ms. Riley assessed the value at $635,000. Mr. Doyle assessed it at $500,000. Neither party provided evidence of an appraisal. Its actual value will also be determined on its sale. For the purposes of the equalization, I take the mid-point between their two proposals as $567,500 and attribute $283,750 for each of their interests.

[160] The parties invested in a rental property on Seaton Street in Toronto with their daughter. She holds 60% of the value; Mr. Doyle holds 30% of the value; and Ms. Riley holds the remaining 10%.

[161] Each party obtained historical appraisals of the Seaton Street property but only Mr. Doyle’s appraiser, Mr. Saxe, testified. He did a comprehensive appraisal and determined that its value on valuation date would have been $755,000. Ms. Riley proposed a value of $989,000 largely on the basis that in 2014 they had listed the property for over $1.3 million. She also relied on Mr. Saxe’s 2017 appraisal of $1,090,000.

[162] I do not consider the listing price of a property to be a reliable indicator of value. The fact that it did not sell at $1.3 million is evidence that it was worth less at that time. Ms. Riley appears to have accepted Mr. Saxe’s expertise in his 2017 valuation but questions his expertise in the 2015 valuation. I prefer the evidence of Mr. Saxe and his assessment of what comparable properties were selling at in 2015.

[163] With the Seaton Street property valued at $755,000, Ms. Riley’s 10% interest is determined to be $75,500 and Mr. Doyle’s 30% interest is determined to be $226,500.

Household Items & Vehicles

[164] Neither party provided evidence or appraisal of the household goods and furniture which have remained in the Cheval Drive matrimonial home. These will be dealt with separately from the equalization as set out below.

[165] At valuation date Mr. Doyle owned a 2004 Audi A8. He sold it a year and a half later in 2016 for $1,500 after he was offered $500 as a trade-in.

[166] Mr. Doyle understood that it had a black book value of $2,500 as of valuation date but he did not have this evidence at trial.

[167] Ms. Riley provided two black book values for 2004 Audi A8s for $8,995 and she proposed a value of $7,025. Those vehicles had 250,000 kilometres on them.

[168] However, Mr. Doyle’s vehicle had an additional 200,000 kilometres.

[169] Mr. Doyle’s expense report for 2016 on his tax return indicated that he drove 10,000 kilometres in 2016. When sold in mid 2017, the vehicle had 285,000 miles on it, which is an equivalent of 458,663 kilometres. I estimate that he added 15,000 kilometres between January 2016 and July 2017. I conclude that as of valuation date the vehicle had approximately 443,663 kilometers on it.

[170] Ms. Riley also pointed to and relied on the black book value of a 2001 Audi A8 being $6,995. That vehicle had 227,230 kilometres on it.

[171] When I weigh the evidence of both parties, I consider that the high mileage would make the vehicle worth, at best, half the black book value of the 2001 Audi A8, being $3,500.

[172] At valuation, Ms. Riley owned a 2010 Mercedes GLK. Initially, she testified that it had a black book value of $21,925. In re-examination, she testified it had a value of $18,000 which is what the insurers paid in 2016 as a total loss following an accident. She had purchased the vehicle in 2012 for $35,688.

[173] Mr. Doyle proposed that the vehicle had a value of $24,000.

[174] Neither party had black book values in evidence.

[175] From the time of purchase in 2012 to the insurer’s assessed value payout in 2016, the vehicle dropped $17,688 or $4,422 per annum. By this analysis between the two assessed values, the vehicle would be worth approximately $22,422 in 2015.

(c) Bank Accounts

[176] The parties ultimately agreed on all the values for the bank accounts except for the RBC banking account #1051 shared with their daughter. On this account, they were $3.02 apart.

[177] The bank records show a balance on December 31, 2014 of $2,450.45 and a balance of $2,420.45 on January 2, 2015, after a withdrawal that day of $30. The parties agreed that their respective interest is one-third of the account.

[178] Mr. Doyle used the December 31, 2014 value to get an interest of $816.82 for both himself and for Ms. Riley.

[179] Ms. Riley used a value of $2,445.93 which is not supported by the evidence.

[180] I find that the account #1051 had a value for each party of $816.82.

Money Owed to Mr. Doyle

[181] As discussed above, when Mr. Doyle earned commissions they could go into a commission pool from which he could make draws. Mr. Doyle’s statement from SAS Global shows a negative balance on valuation date of -$34,775.00(U.S.).

[182] Ms. Riley chose a positive balance figure of $158,538.95 which she said was a 2018 pool balance as stated by her expert accountant.

[183] On the contrary, the accountant testified and provided his calculations in a “commission pool continuity schedule”. He concluded that the commission pool was in a negative position at -$38,206.81 which is a less favourable number for Ms. Riley.

[184] I accept the figure as presented by Mr. Doyle of -$34,775 (U.S.) as it is supported by the statement. That figure, converted to Canadian dollars at a rate of 1.26% comes to -$43,816.50.

Value of Debts

[185] The parties agree on the values of debts except for Mr. Doyle’s claim that he owed income tax to Revenue Canada in the amount of $6,050.72. Ms. Riley does not acknowledge this debt. She did not make a submission on why it is not acknowledged.

[186] Mr. Doyle’s tax return for 2014 shows a balance owing of $6,202.60 for the 2014 income. His reassessment confirms that $6,050.75 was payable.

[187] Mr. Doyle’s number is three cents more favourable to Ms. Riley but I prefer to use the number as stated by Revenue Canada which is persuasive evidence that the debt was owed, being $6,050.75.

Value of Excluded Property

Therapy Pool

[188] Ms. Riley sought to exclude $85,000 which related to funds she used to build a therapeutic pool at the matrimonial home.

[189] It is not disputed that Ms. Riley received a settlement from the motor vehicle actions and used approximately $85,000 to build the therapy pool, in approximately 1999.

[190] The pool is attached to the house and it was included in the overall appraisal of the matrimonial home. Ms. Riley submits that it is separate because the property receives a partial tax reduction for its medical use.

Law

[191] Sections 4(2)3 and 4(2)5 of the Family Law Act, R.S.O. 1990, c. F.3, allow exclusions from net family property for damages for personal injuries and property, other than the matrimonial home, into which damages can be traced.

[192] In Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 73, the Ontario Court of Appeal stated that “s 4(2)(5) provides, in effect, that any excluded asset invested in the matrimonial home loses its classification as an excluded asset”.

[193] In a later decision, Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 71, the Court of Appeal confirmed and expanded on this principle. The court indicated that where the matrimonial home is found not to extend to the entire property, an asset enumerated under s. 4(2) that can be traced to the part of the property that is not the matrimonial home will maintain its classification as an excluded asset:

71 …..the special treatment of the matrimonial home for the purpose of s. 4(2)(5) extends only to property that is so-deemed; where the matrimonial home is found not to extend to the entire property, a gift or inheritance that can be clearly traced into a part of the property that is not the matrimonial home would allow that portion of the property to be excluded from the net family property as set out in s. 4(2)(5). At the same time, s. 4(3) of the FLA squarely places the onus for proving an exclusion from the net family property on the person claiming it.

[194] At issue in Martin v. Sansome was whether the parties’ farm, into which the husband had invested a gift and an advance of his inheritance, comprised the matrimonial home. The Court held that the entire farm did not constitute a matrimonial home pursuant to s. 18(3) of the FLA, which provides that “[i]f property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence.” The husband was thus permitted to exclude the percentage of the farm property that was financed by his gift/ inheritance from the net family property calculation.

[195] Reviewing the Cheval Drive appraisal, it is clear that the pool is part of the “use and enjoyment of the residence”. It is very much a part of the matrimonial home. Accordingly, I find the exemption, which Ms. Riley seeks, is not permitted.

Mercedes Benz GLK

[196] Ms. Riley also sought to exclude from her assets the Mercedes which I have valued as $22,422.

[197] Ms. Riley testified that she purchased this vehicle in 2012 with settlement funds from her accident benefit insurer related to two car accidents in 2010. Her evidence is that she did not pursue tort lawsuits for damages as against the at-fault drivers.

[198] There is no “damage” component in an accident benefit claim or settlement. The payments she received were for medical benefits. I do not consider medical benefits to be damages that would permit the funds invested in the Mercedes to be excluded.

[199] Accordingly, I deny this exclusion.

Annuity

[200] Ms. Riley also sought to exclude the value of her annuity in the amount of $400,135.80. There is no evidence on that value as of valuation date. Mr. Doyle did not include the annuity as an asset for Ms. Riley as he considered it to be income.

[201] As Ms. Riley included the annuity as an asset and then sought to exclude it, there is no net effect on the numbers for equalization.

[202] I have not included it as an asset nor as an exclusion.

Equalization Summary

[203] Accordingly, I find

(a) Land Ms. Riley Mr. Doyle

Matrimonial Home-Cheval $425,000 $425,000

Flamborough Rental $283,750 $283,750

Seaton Street Rental $75,500 $226,500

(b) Household & Vehicles

Contents (not valued) -0- -0-

2004 Audi A8 $3,500

2010 Mercedes GLK $22,422

(c) Bank Accounts $10,725.03 $150,217.80

(d) Pool Balance ($43,816.50)

SUBTOTAL $817,397.03 $1,045,151.30

Less Debts $161,165.17 $242,630.04

Exemptions

--Therapy Pool -0-

--Mercedes Benz GLK -0-

TOTAL NET FAMILY

PROPERTY $656,231.86 $802,521.30

DIFFERENCE IS

$146,289.44 - 0- $73,144.72

[204] I have determined that on the evidence, Mr. Doyle owes an equalization payment of $73,144.72.

Unequal Division of Net Family Property

[205] Ms. Riley submitted that the court should order an unequal division of net family property for a number of reasons as discussed below.

Therapy Pool

[206] She requests an unequal division on the basis that she requires the therapy pool as a medical benefit to her.

[207] As noted above, I considered the therapy pool to be a part of the matrimonial residence and that it was not separate, pursuant to s. 18(3) of the Family Law Act.

[208] Ms. Riley, in submissions, stated that the pool heater broke in 2015 and she has an urgent need for the hydrotherapy to stop a decline in her health.

[209] I do not have evidence on these issues. Ms. Riley was advised that if she was putting her health in issue, post-separation, that I would require her family doctor to testify, as set out in her trial scheduling form. At minimum, I would require her doctor’s clinical notes and records. This evidence was not provided.

[210] The fact that the pool has not been repaired since before the couple’s physical separation suggests that it is not urgently needed as she submits.

Depletion of Assets

[211] Ms. Riley further submitted that there should be an unequal division on the basis that Mr. Doyle depleted their family assets. She submitted that he “systematically debt loaded the properties to the tune of approximately $200,000.” She submitted that he was motivated to financially ruin her. Her examples were as follows.

Flamborough Mortgage Increase

[212] The parties purchased the Flamborough property in 1988 and the two semi-detached houses have been rented over the years.

[213] Ms. Riley was critical of an increase in the mortgage which occurred during the marriage in April 2014. Ms. Riley submits that she did not sign that mortgage. Mr. Doyle was shown the signature of Ms. Riley and stated that he did not sign her name on her behalf. I have no conclusive evidence that this was a forged signature, as was suggested by Ms. Riley.

[214] The evidence at trial largely showed that Mr. Doyle handled their financial concerns during the marriage and dealt with their taxes and investments to their mutual benefit.

[215] Mr. Doyle acknowledged that over the years they regularly increased the mortgage on the Flamborough property. There was a tax advantage as they could deduct the mortgage interest from income which they could not do with a mortgage on the matrimonial home. By doing this, they could invest in other things or pay off the mortgage on the matrimonial home.

[216] Mr. Doyle testified that he increased the mortgage on the Flamborough property by $135,000. Ms. Riley submitted that it was increased by $155,000. I have no documentary proof as to the amount of the increase suggested by either party. Ms. Riley testified that the mortgage had previously been $140,000. The evidence filed shows the mortgage in April 2014 was for $239,999. If Ms. Riley is correct then there appears to have been an increase of roughly $100,000.

[217] Mr. Doyle testified that the funds from the increased mortgage were not used for his private or personal benefit. He testified that he paid off the joint line of credit of $85,000 that had been on the matrimonial home. He explained that $65,000 of that line of credit had been the amount that he had deposited in 2011 for the purchase of the Seaton Street property. He testified that the rest of the funds from the increased mortgage were used to pay debts and expenses connected with Seaton Street as well as a kitchen renovation in the matrimonial home.

[218] Ms. Riley testified that the kitchen renovation was about $20,000 and later stated it was only $17,000. Again, I had no documentary proof from either party as to the renovation costs.

[219] If the increase in the mortgage was approximately $100,000 and $85,000 paid the line of credit and $17,000 went to a renovation cost, then the monies appear to be accounted for.

[220] I am not persuaded that Mr. Doyle increased the Flamborough mortgage during the marriage to “financially hamper” Ms. Riley as she suggests.

[221] There is evidence before the court that Mr. Doyle has been paying down that mortgage since April 2014. It has reduced from $239,999 to $112,592.63 which has actually increased their joint equity in the property.

The Alleged Forgery

[222] Ms. Riley submits that Mr. Doyle behaved unconscionably by forging her signature on the Flamborough mortgage in 2014.

[223] It is noteworthy that the suggestion that the mortgage signature had been forged was only raised at trial, in 2019. It was not listed as an issue for trial on the trial scheduling endorsement form of March 6, 2018 or August 12, 2019.

[224] I am not persuaded on the evidence that Mr. Doyle forged her signature.

Flamborough Mortgage Rate

[225] The mortgage rate in April 2014 had been 3.14%. Ms. Riley was critical of Mr. Doyle renewing the mortgage five years later at 7.45%.

[226] Mr. Doyle testified that he was forced to renew at this high rate because Ms. Riley would not sign the mortgage renewal.

[227] The mortgage payment at 7.45% is $2,580.13 per month but at 3.64% it would be $2,377.44 per month. They are therefore paying an additional $202.69 per month. Ms. Riley has not been paying any of the rental expenses so Mr. Doyle has had to pay the increase to keep the mortgage in good standing.

[228] Ms. Riley’s refusal to sign is unnecessarily increasing the expenses on the rental property.

[229] Ms. Riley’s position at trial was that she will not sign the renewal because she maintains that she did not sign for the increased mortgage in 2014.

[230] As noted above, I have not been persuaded that it is not her signature on the 2014 document. I am persuaded that the increased mortgage funds were used for the couple’s joint financial benefit. I find her refusal to sign the renewal, which increases their joint rental expenses, to be unreasonable.

Flamborough Rental Income

[231] Ms. Riley submitted that Mr. Doyle “attempted to disadvantage her by denying her access to their joint rental income” which was collected on the Flamborough property.

[232] Mr. Doyle acknowledged that until the spring of 2016 the rental income was deposited into their joint account and the rental expenses were paid out from that account. He stopped depositing the rental cheques in that account because he alleged Ms. Riley was withdrawing money such that there was not enough funds for him to pay the bills.

[233] Mr. Doyle provided evidence, acknowledged by Ms. Riley, that the rental income is about $21,000 per annum. He has declared half the joint income on his tax returns but he is only able to deduct half of the expenses.

[234] Mr. Doyle testified that he has been paying all the expenses each year which have exceeded the income. For example, the evidence for the expenses in 2018 was as follows:

Mortgage $2,330.73 x 12 months = $27,968.76

Insurance $1,177.20

Taxes $3,873.56

Maintenance $83.99

Total $33,103.51

[235] This situation has worsened for Mr. Doyle since Ms. Riley has not agreed to sign the mortgage renewal at a lower rate of interest.

[236] Ms. Riley’s position is that she is entitled to half the rental income of the last five years for a total $52,500. She does not recognize that the rental income is not pure profit. There are necessary costs of mortgage, taxes, insurance and maintenance.

[237] I am not persuaded that Ms. Riley is the one who has been financially hampered in dealing with the Flamborough rental property since 2016.

Flamborough Line of Credit

[238] Ms. Riley testified that Mr. Doyle used up over $40,000 in a line of credit on the Flamborough property. She pointed to there being an available credit line in February 2016 of $40,518.52 and then in March 2016 there was an available credit line of $1.

[239] Ms. Riley did not have evidence of withdrawals of funds from that line of credit. Nor did she give evidence that she was called upon to service this line of credit which she alleges was used.

[240] I am not persuaded that Mr. Doyle took money out of the Flamborough line of credit.

Cheval Line of Credit

[241] Ms. Riley cited another example of Mr. Doyle depleting their assets by his withdrawal of $9,600 from the line of credit on the Cheval Drive, Grimsby, matrimonial home.

[242] Mr. Doyle withdrew $600 in January 2016 but he cannot recall the purpose of those funds. He testified that he withdrew $9,000 on March 15, 2016 to pay an MBNA credit card. His evidence was that this card had been used by Ms. Riley and their daughter until he cancelled the card sometime in March 2016. The charges for January/February bill appear to be from their daughter for Ubers and for food or for the Canadian Tire in Grimsby.

[243] Mr. Doyle testified that he was removed from the matrimonial home on January 14, 2016 and he had no funds to pay the credit card at the time.

[244] I do not find that using the line of credit to pay the credit card which had been used by the daughter and Ms. Riley rises to unreasonable or unconscionable behaviour.

[245] Ms. Riley testified that she had made cash payments of $950 to service that line of credit but did not have any receipts. This may be dealt with below regarding adjustments on the sale of the Cheval property.

Emptying Their Joint Bank Account

[246] Ms. Riley submitted that Mr. Doyle stopped putting money into the joint account and ran the account into overdraft after their physical separation in mid January 2016.

[247] A careful review of the account shows that after January 2016 Mr. Doyle continued to make deposits of the Flamborough rental cheques and his draws from SAS Global until April 2016, but it was Ms. Riley who stopped depositing her monthly Sun Life/Manulife cheques of $1,900 as of February 1, 2016.

[248] Throughout 2015 both parties made deposits and there were regular large withdrawals of $2000 and $3000 for credit card payments. The account maintained a healthy balance until February 2016 when Ms. Riley stopped her deposits. The first time the account went into overdraft was February 26, 2016.

[249] Ms. Riley testified that she began to pay her bills from a joint account which she shared with her mother and into which she deposited her Sunlife/Manulife cheques. The joint account with Mr. Doyle however still shows that power, Bell, Enbridge Gas and taxes were continuing to be paid out.

[250] Ms. Riley said she stopped depositing her income because Mr. Doyle withdrew the funds from the line of credit. I do not accept this evidence as it is clear on the documents that she stopped her deposits on February 1, 2016 and she would not have learned of his use of the line of credit until after March 15, 2016.

[251] When parties separate and have to establish two households, it is expensive and challenging for both. Each must begin to manage their own finances and budgets.

[252] Mr. Doyle’s decision to open a new bank account for his deposits and expenses in May 2016 is consistent with Ms. Riley’s decision to manage her finances in a private account in February 2016.

[253] I do not find his behaviour to have been a financial attack on her, or to be unconscionable.

Seaton Street Line of Credit and Bank Account

[254] Ms. Riley sought to demonstrate that Mr. Doyle unreasonably ran up the line of credit on the Seaton Street, Toronto property which they owned with their daughter.

[255] She pointed to a number of large withdrawals in 2015 as evidence that he was taking money. Under cross-examination Ms. Riley was forced to admit that any number of those withdrawals were then deposited directly into the Seaton bank account to meet expenses.

[256] Ms. Riley testified that the Seaton Street property always “carried itself” with its rental income. Later she acknowledged that in 2015 it was not tenanted and was being renovated. As well, it had been listed for sale. Mr. Doyle testified that he was drawing on the line of credit to meet mortgage and other expenses related to Seaton Street.

[257] Ms. Riley testified that Mr. Doyle had withdrawn funds from the Seaton Street bank account after January 2016. Under cross-examination, when shown the bank account, she could not identify any withdrawals by him.

[258] Ms. Riley testified to the difficulty their daughter has had in maintaining this property and making the payments. She said she has been assisting their daughter in doing so.

[259] Ms. Riley testified that their daughter, who resides at the property, has financials to show what additional expenses have been incurred, but that evidence was not before the court. Their daughter is not a party in this proceeding and ultimately the three of them will have to resolve their differences and any adjustments if and when they sell the property.

[260] For the purposes of this proceeding I do not have evidence that Mr. Doyle has run up the Seaton Street line of credit nor taken funds from the Seaton Street account in such a way as to amount to a financial attack on Ms. Riley.

[261] I am not persuaded that Mr. Doyle has recklessly incurred debts or acted in bad faith as set out in s. 5(6) of the Family Law Act that would justify an unequal division of net family property.

[262] In Serra v. Serra, 2009 ONCA 105, at paras. 47-48, the Ontario Court of Appeal made the following comments about the threshold required to justify an unequal division of net family property:

47 In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: [Citations omitted.]

48 I note, for example, the following comments of Backhouse J. in LeVan, and of Jennings J. in Merklinger:

LeVan, at para. 258:

“Unconscionability” is a much more difficult test to meet than “fairness” and as a result, the courts have only minimal discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined as, among other things, conduct that is harsh and shocking to the conscience, repugnant to anyone’s sense of justice, or shocking to the conscience of the court. [Citations omitted].

Merklinger, at para 54:

Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. [Emphasis added.]

Delay of Proceedings

[263] Ms. Riley submitted that Mr. Doyle “consistently and continually attempted to delay these proceedings.”

[264] Ms. Riley issued her application and brought an urgent motion returnable August 4, 2016. She stated that his reply affidavit was August 8, 2016. It should be noted that her counsel acted as his agent to adjourn the motion to August 11, 2016. What followed was a consent order.

[265] Ms. Riley pointed to the late filing of his 2015 and 2016 tax returns as of June 2017. Mr. Doyle explained that the delay was due to being unable to attend at his office in the matrimonial home to gather materials for filings. Although the prohibition from the home was due to his own actions on January 14, 2016, it is a reasonable explanation for his late filings. Ms. Riley submitted that he had not filed his 2018 return, however both his 2018 and 2019 returns were exhibits at trial.

[266] Ms. Riley served a motion returnable August 3, 2017, as agreed between counsel, and she submits that Mr. Doyle asked it to be adjourned. The record shows that a without prejudice order for spousal support and disclosure was consented to and the mattered was adjourned to a long motion date. This is not evidence of delay tactics.

[267] Ms. Riley was critical of Mr. Doyle dismissing his legal counsel on March 29, 2019, which caused the trial to be adjourned from the May 2019 sittings. He promptly retained new counsel and motioned on April 18, 2019 for the adjournment. The matter was taken off the May 2019 sittings but he was prepared and ready to proceed four months later in September 2019. He and his counsel were cooperative with the lengthy trial which ensued and each return date.

[268] It should be noted that Ms. Riley has changed her counsel four times. These things happen. I am not persuaded that Mr. Doyle’s one change of counsel showed an intent to delay proceedings.

[269] The matter reached trial within three years after pleadings closed which is a reasonable time frame.

Delays in Disclosure

[270] An initial disclosure order was made at the case conference of September 12, 2016 and it appears all documents ordered were produced. A consent disclosure order was made on August 3, 2017 to provide his sales records. These were produced.

[271] Further information was sought and Mr. Doyle signed a direction on June 21, 2018 to Ms. Riley’s lawyer to be able to obtain extensive disclosure directly from SAS Global. Further information was sought by way of a motion in April 2019, to which Mr. Doyle consented.

[272] Ms. Riley’s expert testified that he had the disclosure that he required to determine Mr. Doyle’s gross earnings.

[273] From the record it is evident that as disclosure was requested or motioned for, it was consented to and provided.

[274] Determining Mr. Doyle’s income for support purposes was not a straightforward exercise for either party.

[275] There was no evidence at trial nor mention in any of the parties’ submissions, but Mr. Doyle did sign a consent on December 19, 2018 that “his total earnings from SAS Global in the years 2015, 2016 and 2017 were not fully disclosed to either the Applicant or the court at the time of the December 13, 2017 order.”

[276] From my review, he presented to the court what he declared as line 150 income to Revenue Canada without disclosing that these were income “drawings” while there was other income “earned”. As noted above, by Ms. Riley’s expert this was a legitimate and permitted tax strategy for Revenue Canada, but not proper disclosure of income for the calculation of spousal support.

[277] In that same consent, Mr. Doyle agreed to settle the issue of interim spousal support. He acknowledged his total income in 2016 was $171,918.50 and 2017 was $136,569.03. Both these figures agreed to are higher than what I determined on the evidence. On consent, he began to pay support at $3,800 per month plus $200 per month toward arrears.

[278] To the extent that he was shown to have not been fair or forthright to Ms. Riley and the court, he made reasonable efforts to rectify the situation.

[279] I am not persuaded that this is a case where an unequal division of net family property is called for.

HEALTH BENEFIT COVERAGE

[280] Ms. Riley requested $2,700 per annum for health benefits insurance coverage for 10 years (to age 69) as a lump sum of $27,000. At trial she had stated she sought coverage to age 65.

[281] To date, on consent, Mr. Doyle has been paying since 2016 for a policy through the Chamber of Commerce at an annual cost of $5,325.72. He wishes to cease paying for this policy as he does not require the insurance for himself.

[282] Ms. Riley did not provide evidence of what the cost of a health insurance plan for herself would be.

[283] The evidence she provided the court was of her medical expenses from January 1, 2012 to December 31, 2015. They showed a total of $5,585.22 of which her insurance plan had covered $2,832.17. She also provided evidence from a pharmacy for the same time frame showing a total of $959.11 of which her insurance plan paid $348.18.

[284] This total of $6,544.33 over a four-year period comes to a yearly cost of $1,636.08 or a monthly cost of $136.34.

[285] This is a modest expense which I am satisfied Ms. Riley can afford on her own income. I am not persuaded that it is reasonable or necessary to order Mr. Doyle to continue paying for the plan at a cost of $443.81 per month.

[286] This is particularly so when considering that Mr. Doyle proposed to pay the high range of support under the SSAG.

MATRIMONIAL HOME

Exclusive Possession

[287] Ms. Riley requested an order for exclusive possession of the matrimonial home on Cheval Drive, Grimsby.

[288] She has enjoyed exclusive possession for over five years now. She has not provided evidence that she is unable to find other suitable accommodation. As noted, their child is an adult living independently in Toronto.

[289] The basis on which Ms. Riley grounds this relief is the property having a therapy pool which she said was necessary for her medical health. Her doctor did not testify to support this issue. I do not find the argument persuasive as the pool heater has been broken since 2015 such that she has not used it in six years.

[290] Accordingly, the request for exclusive possession is denied.

Sale of Matrimonial Home

[291] Ms. Riley asks the court to set the price of the matrimonial home on the average of the court ordered assessments with Ms. Riley being given the “first right of purchase”.

[292] Ms. Riley was advised a number of times by the court that this was not something the court would order.

[293] The Court of Appeal in Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, dealt with this issue at paras. 63 and 64, that such rights of first refusal are not appropriate for the court to make, as noted:

63 To start with the question of the appropriateness of the order, the fundamental problem with the judge’s order in this case was that it took away the appellant’s right to the highest price for his interest in the properties. The values used by the application judge in redistributing the properties were the valuations as at the date of separation, and as fixed by the parties for the purposes of calculating the equalization payment at trial. There was no evidence that those values represented the market value of the properties as at the time of the application or that they represented the highest price. As Granger J. said in Batler v. Batler (1989), 1988 CanLII 4726 (ON SC), 67 O.R. (2d) 355 (H.C.J.) at 356:

A joint tenant is entitled to the highest price for his or her interest which may be more than the appraised value of the property. In today’s real estate market, the appraised value of the property may not reflect the fair market value. The true test of the fair market value is to sell the property in an open market. Unless the parties agree to a transfer of the property at an agreed price, the property should be listed for sale and sold, to ensure that fair market value is obtained.

64 This court has jealously guarded the rights of joint owners to the best price for jointly-owned property. Martin v Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.) provides an example of this principle in a slightly different context. In that case, this court explained the rationale behind the rule that one party cannot be given a right of first refusal with respect to matrimonial property ordered sold. As Osborne J.A. explained in Martin at p. 48:

A right of first refusal will most often work to discourage other interested buyers. If a spouse is granted a right of first refusal, the effect of it is to remove that spouse from the competitive market for the matrimonial home…

Both Dr. and Mrs. Martin have a right to buy the matrimonial home. If Dr. Martin wants to exercise that right he should be in a position of having to compete with any other interested purchaser. It is only in that way that Mrs. Martin’s interest in the property will be fairly and justly quantified.

[294] Accordingly, it is unfair to Mr. Doyle for the court to set the price of the home or to give a first right of purchase or first right of refusal to Ms. Riley. This relief is denied.

Adjustments on Division of Net Proceeds of Sale of the Matrimonial Home

[295] The parties seek a sale of the Cheval Drive, Grimsby property.

[296] After satisfaction of the costs of disposition, being real estate commissions and legal fees, the following adjustments are to be made before the proceeds are equally divided.

[297] I find that the line of credit of $9,600 was joint family debt relating to expenses incurred when the parties’ finances were being shared. It is to be paid out of the net proceeds of sale. Mr. Doyle did not suggest that he made any payments toward that line of credit. To the extent that the line of credit account since 2016 shows any payments made, I am satisfied that the payments were made by Ms. Riley and she is to be given credit for half of any of the payments made.

[298] I find that the property taxes owed since January 2016 to be a joint expense to be honoured. Ms. Riley is to get a credit for half the payments that she can demonstrate she has paid.

[299] Ms. Riley also sought adjustments for repairs she planned to do to the property. These are not appropriate as it is to be listed and sold.

Details for the Listing and Sale of the Matrimonial Home

[300] I order the Cheval Drive, Grimsby home to be listed for sale by an agent agreed upon by the parties. In the absence of an agreement within 15 days, Mr. Doyle is to provide the names of three agents he proposes to use. Within 15 days thereafter Ms. Riley is to choose one of the agents proposed.

[301] The agent chosen is to list the property for sale on such terms as may be recommended by the listing agent, or agreed upon by the parties. In the absence of an agreement, either party may apply by motion to the court for direction. Ms. Riley is to cooperate with the listing agent and provide access to the property as required, and ensure the home is maintained in a manner suitable for showing.

[302] After satisfaction of the costs of disposition, being real estate commission and legal fees, and adjustments noted above, the proceeds are to be divided into two equal shares and paid to each party.

Contents of the Matrimonial Home

[303] Mr. Doyle submitted that he was content to let Ms. Riley keep all the contents of the home if she released certain listed items, failing which he proposed two alternatives.

[304] The listed contents he sought to have released were as follows:

A) the Cogeco cable and Bell satellite boxes

B) his Thornes turntable, 33 1.3 record albums and all albums stored in boxes and crates in basement/garage

C) three tool boxes with contents

D) vice

E) extension ladder

F) fishing equipment, including rods and tackle box

G) sleeping bag

H) basement large screen tv and remote

I) basement two leather couches

J) basement kitchen table and chairs

K) one set of dishes and set of dinnerware

L) skates

M) two dressers and two nightstands of master bedroom suite

N) basement guitar amplifier

O) gym bag with golf discs

P) Weber Silver Genesis BBQ

Q) Mr. Doyle’s bicycle

[305] Ms. Riley reviewed the list and submits that

A) the Bell satellite box is gone; she has two cardboard Cogeco boxes (she was not clear if these contain the Cogeco cable box)

B) she could not locate a turntable or records

C) the three tool boxes are available

D) she could not locate a vice

E) she believes the ladder is attached and part of the garage stairs and cannot be removed

F) she has the fishing poles in the garage but does not mention a tackle box

G) she testified that the sleeping bag had been thrown out

H) the large screen TV had broken and had been thrown out

I) one of the two leather couches are available

J) the kitchen table is available but no chairs

K) at trial Ms. Riley agreed to release a set of dishes and a set of dinnerware

L) the skates are available

M) she will not release two dressers and nightstands in the master bedroom

N) the amplifier is available

O) Ms. Riley does not state whether she located the gym bag with golf discs

P) she does not state whether she would make the Weber BBQ available

Q) she does not state whether she would make his bicycle available.

[306] Of the 17 items he requested Ms. Riley was only able or willing to release the tool boxes, fishing rods, one couch, a table, the dishes/dinnerware, his skates and his amplifier.

[307] As this cannot be resolved on the basis that Mr. Doyle proposed, I will consider the alternatives which he suggested, as amended.

[308] I order the parties to jointly pay for an appraisal of the contents of the home and Ms. Riley is to pay to Mr. Doyle half the appraised value. If Ms. Riley does not proceed in this manner within 30 days, I order the contents of the home to be sold at a public auction.

The Cable Boxes

[309] Mr. Doyle asks the court to order the return of the Cogeco cable and Bell satellite boxes or order Ms. Riley to pay $551.56 in compensation for their replacement if she is unable to return them.

[310] I consider this to be dealt with as part of the order above regarding contents. If they are found they may be included in the appraisal or returned to Mr. Doyle.

Family Photo Albums

[311] Mr. Doyle requests the family photo albums to allow him to copy the photos and return the originals to Ms. Riley.

[312] Ms. Riley advises that their daughter has the family photo albums.

[313] Ms. Riley and her daughter appeared to be aligned and on good terms with one another. Their daughter is estranged from Mr. Doyle.

[314] I order Ms. Riley to make best efforts to obtain the albums and deliver them to Mr. Doyle’s counsel’s office within 30 days for a period of 30 days during which he may copy what he wishes. Ms. Riley may then pick up the albums at the end of the 30 days.

FLAMBOROUGH PROPERTY

Details for the Listing of Flamborough for Sale

[315] The parties agree that the Flamborough property be listed for sale on the following basis.

[316] It shall be listed for sale by an agent agreed upon by the parties. In the absence of an agreement within 15 days of the date of this order Mr. Doyle is to provide the names of three agents he proposes to use. Within 15 days thereafter Ms. Riley is to choose one of the agents proposed.

[317] The agent chosen is to list the property for sale on such terms as may be recommended by the listing agent, or agreed upon by the parties. In the absence of an agreement, either party may apply by motion to the court for direction.

[318] Mr. Doyle is to cooperate with the listing agent and provide access to the property as required, and ensure the property is maintained in a manner suitable for showing.

[319] After the costs of disposition, being real estate commission and legal fees, and the balance owing on the mortgage, the net proceeds of sale shall be divided into two equal shares. The shares are to be paid out to each party with the adjustments noted below.

Adjustments on Division of Net Proceeds of Sale of Flamborough

[320] The parties disagree on how the net proceeds are to be shared.

[321] Ms. Riley submits that the mortgage (which she believed to be $222,000 at the date of separation) be Mr. Doyle’s sole responsibility.

[322] As noted, above, I am not persuaded that Ms. Riley did not sign that mortgage. I did not find her memory to be reliable with regard to many of the facts and figures on which she testified. I also found that she changed her testimony frequently. I accept that in part this may have been due to her being unwell. Nonetheless, it meant that I could not necessarily rely on her statements of certain facts.

[323] Furthermore, I have evidence that funds from that mortgage were used for the benefit of the family finances.

[324] Accordingly, I am not prepared to find that Mr. Doyle is solely responsible for the mortgage on the Flamborough property. It is a joint obligation to be satisfied out of the proceeds of sale.

[325] Ms. Riley also sought an adjustment of half the rental income for five years at $10,500 for a total of $52,500 to paid to her from Mr. Doyle’s share.

[326] As noted above, the costs exceeded the income and there was no profit to be shared, rather there were losses to be shared on this investment property.

[327] Mr. Doyle seeks an order that Ms. Riley pay half the losses incurred which he has covered. In his submissions he has not provided a breakdown.

[328] The evidence in the trial supports that Mr. Doyle covered losses of $11,775 in 2016 and $11,815.74 in 2017.

[329] His calculations for 2018 were $14,031.74 but appear to have incorrectly included an additional insurance cost of $1,851.12 and so I reduce that loss to $12,180.12.

[330] The evidence is that he has continued to cover the shortfall on the expenses and so I assess his losses for 2019 and 2020 to be $12,180.12 in each of those years.

[331] These losses total $60,131.10 over the last five years. Half the losses come to $30,065.55. I consider it appropriate to order that Ms. Riley share these losses. On the sale of the property, $30,065.55 is to be credited to Mr. Doyle from her share of the net proceeds of sale.

[332] As noted above, Ms. Riley has been unwilling to sign the renewal of the mortgage to reduce the cost of the mortgage. In doing so the interest rate is higher and the monthly mortgage is $202.69 per month higher than it needs to be, since April 2019.

[333] Mr. Doyle on his mid-trial motion included a request that Ms. Riley sign a renewal agreement to get a lower rate. Ms. Riley steadfastly refused. I did not order her to do so as it did not appear urgent and left it to be decided after all the evidence in this trial.

[334] I have concluded that it has been unreasonable and costly for Ms. Riley to refuse to sign the renewal and thereby increase their joint losses.

[335] I order that from Ms. Riley’s share of the sale proceeds she is to pay $202.60 per month from April 2019 until either the sale of the property or until she signs a renewal at a lower rate.

[336] I will not order her to sign a mortgage renewal agreement but I expect she will find that it is in her best interests to do so.

SEATON STREET

[337] Ms. Riley submitted that Mr. Doyle misused funds from the Seaton Street line of credit. As noted above, I am far from persuaded that this was so.

[338] Ms. Riley, in her April 6, 2021 submissions, stated that there was a ruling that Seaton Street was not to be sold. I am not aware of such an order that would bind any of the three owners of Seaton Street.

[339] Joint owners may be compelled to sell pursuant to the Partition Act, R.S.O. 1990, c. P.4, and may seek an accounting from one another pursuant to s. 122(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

[340] Ms. Riley requested an order that Mr. Doyle be ordered to sign the mortgage renewal and if he failed to so that his name be removed from title and he be made to pay $15,000.

[341] Just as I am not prepared to order Ms. Riley to sign the renewal on the Flamborough property, I am not prepared to order Mr. Doyle to sign the renewal on the Seaton Street property.

RESTRAINING ORDER

[342] Ms. Riley requests a restraining order that Mr. Doyle not come within 500 metres of her residence or any place she is known to frequent.

[343] Mr. Doyle pled guilty to the assault of Ms. Riley which occurred January 14, 2016. He served 18 months probation.

[344] In March 2018 he consented to a no contact order and he would be prohibited from coming within 100 metres of her. A restraining order was made at that time.

[345] There is no evidence of any charges or convictions of breaches of the orders.

[346] Ms. Riley testified that she was followed by him three times. She said this was in 2016 and 2017 and then he ”finally stopped”. Mr. Doyle denies that he ever followed her.

[347] Restraining orders pursuant to s. 46 of the Family Law Act are needed, “where parties are unable to restrain themselves and require the state to tell them how to behave”: see Lazier v. Mackey, 2012 ONSC 3812, 26 R.F.L. (7th) 415.

[348] Such orders under s. 46 are made where the applicant establishes “reasonable grounds to fear for her own safety…”

[349] To satisfy this test the applicant must establish, on a balance of probabilities, that they have a legitimate fear for their physical and/or psychological safety: see Fuda v. Fuda, 2011 ONSC 154, at para. 32.

[350] This fear can be somewhat subjective and personal and need not be an overwhelming fear understood by everyone. However, the court must be able to connect or associate the respondent's actions or words with the applicant's fears: see Fuda v. Fuda, at para. 31; C. (D.) v. C. (M.T.), 2015 ONCJ 242, at para. 64.

[351] Articulated differently, the applicant’s subjective fear must be grounded in or connected to actions, words, or other compelling facts that can be objectively assessed by the court.

[352] Mr. Doyle denies being to the home since 2016 and denies following Ms. Riley at any time. He testified that he had no interest in seeing her again.

[353] Even if I accept Ms. Riley’s evidence, Mr. Doyle stopped following her in 2017.

[354] I am not persuaded that reasonable grounds exist to this date to require a restraining order. Accordingly, I vacate the order of Brown J. dated March 6, 2018.

[355] However, Mr. Doyle testified that he has no interest in seeing Ms. Riley again. The challenge in the short term is that they still have three jointly owned properties to deal with, which require at least indirect contact.

[356] Mr. Doyle consents to an order that he will have no contact with Ms. Riley directly or indirectly, except for purposes of the sale of jointly owned properties, to retrieve contents of the matrimonial home on a specified date to be agreed upon, for court purposes, or through counsel or a third party.

[357] He consents to an order that he is to remain 100 metres from her residence, if known to him. This necessarily excludes 39 Cheval Drive, for the reasons above.

ACCOMMODATIONS

[358] Ms. Riley made some comments in her submissions about the court proceeding.

[359] Ms. Riley was self-represented for the beginning of the trial and then retained counsel for the balance. At the end of the evidence she discharged her counsel and filed her own closing submissions.

[360] Ms. Riley had been represented and assisted by three other counsel since 2016; Ms. Ferre, Ms. Workman and Ms. Belansky.

[361] In the trial Ms. Riley was given a number of accommodations to assist her. She advised that it was disturbing to her to see Mr. Doyle and so the court did the following:

• she was permitted to give her evidence in-chief at the counsel table;

• we had Mr. Doyle’s chair moved to be out of her line of sight;

• when available we provided a child-friendly room for her to participate via closed-circuit television;

• we provided her a private room with Zoom links to participate via two devices;

• we provided breaks so she could text or speak with her counsel;

[362] Procedurally, Ms. Riley was granted leniency by the court:

• she was permitted to serve her expert accountant’s report late and he was permitted to testify; and

• she was permitted to serve an appraisal report on Seaton Street late, and the court allowed the appraiser to be added as a witness and arranged for a Zoom time for him to testify, although she did not ultimately produce him as a witness.

[363] As fairly as possible, the court tried to guide Ms. Riley:

• she was provided with a Superior Court Memorandum for Trial and the Guide to Family Law Process;

• she was provided with two mid-trial conferences to try to narrow or resolve issues;

• it was explained that if she wished to make her health an issue she should proceed to produce her family doctor, who had been on her witness list, or at the very least produce the doctor’s clinical notes and records (which she did not do);

• the court encouraged her to take notes when others were testifying; and

• the court explained why some of her materials were not admissible because they did not relate to an issue the court had to decide or because they offended a hearsay rule or because we required the author of the document to be available for cross-examination.

[364] The court was patient and accommodating when Ms. Riley advised she was unwell:

• she was given breaks;

• at times we ended the court day early;

• we adjourned the continuation of the trial in March 2020 as she was seeking treatment; and

• she was given additional time to prepare her final submissions.

TORT CLAIM, PUNITIVE DAMAGES, MENTAL SUFFERING

[365] Ms. Riley, throughout her submissions, stated that Mr. Doyle caused her PTSD or post-traumatic stress disorder. No medical professional testified in this matter and, although requested, she did not produce any clinical notes and records from her family doctor.

[366] A psychiatrist’s note was provided and made an exhibit to justify her request for an adjournment of the trial, and for courtroom accommodations which were provided to her. The psychiatrist was not produced as a witness.

[367] Ms. Riley’s evidence was that she was “fine” if she was not around Mr. Doyle.

[368] The claims for tort damages and punitive damages were not pled. Although represented by three different counsel before the trial occurred there was no amendment to her application nor were the issues even raised in the trial scheduling endorsements of March 6, 2018 and August 12, 2019.

[369] These claims were first raised at the opening of trial before me. I ruled that those claims were not permitted at this late date.

[370] Nonetheless Ms. Riley made lengthy submissions on February 28, 2021 and again in her reply of April 6, 2021 regarding her claims for damages.

[371] The claims were not permitted at the outset of trial and Ms. Riley did not provide medical evidence in support of the claims. Accordingly, any claims for tort or punitive damages are denied.

REQUEST TO STRIKE MR. DOYLE’S PLEADINGS

[372] Ms. Riley filed her application on July 6, 2016. Mr. Doyle was to have served and filed his Answer by August 5, 2016. It was filed late, on August 25, 2016, or 20 days later.

[373] At the opening of trial Ms. Riley raised the issue of his late Answer disadvantaging her. I explained that it was a technical breach and it was too late to raise the issue three years later.

[374] In her closing submissions of February 28, 2021, Ms. Riley again requested that his Answer be struck as her research determined that his Answer was filed September 2, 2016 or 28 days late, without her consent.

[375] As explained before, this was a technical breach, which, if it were significant, needed to have been brought up long before trial. I deny her request to strike his pleadings.

DIVORCE

[376] Both parties wish to have a divorce. The marriage certificate was not filed in the trial.

[377] Accordingly, I order the claim for divorce shall be severed from the claims for corollary relief, and either party shall be at liberty to obtain an order of divorce based on their affidavit.

COSTS

[378] If the parties are unable to resolve costs, Mr. Doyle may file written submissions on costs within 14 days on July 21, 2021. Ms. Riley may file responding submissions within 14 days thereafter on August 4, 2021. Submissions are not to exceed five pages plus costs outlines, case law and any applicable offers. If required, Mr. Doyle may file reply submissions seven days thereafter on August 11, 2021. Font is to be at least 12-point in accordance with the protocol of April 7, 2020.

[379] Failing receipt of costs submissions within 40 days of this judgment, the issue of costs will be considered settled and the file closed.

M. J. Donohue J.

Released: July 7, 2021