COURT FILE NO.: FS-19-00000099-00
DATE: 2021 07 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Romina Giavon, Applicant
AND:
Christopher Nagy, Respondent
BEFORE: Doi J.
COUNSEL: Matthew A. Newton, for the Applicant Christopher Nagy, self-represented Respondent
HEARD: February 17, 19 and 26, 2021
ENDORSEMENT
Overview
[1] The Applicant seeks a final order for: a) the disposition of the sale proceeds of a residential home that the parties jointly held; b) spousal support; and c) costs for this proceeding. This matter proceeded to an uncontested trial after the Respondent’s pleadings were struck due to his failure to follow earlier court orders.[^1]
Background
[2] The parties met in 2005 and began to co-habit in 2006. Their relationship continued for about 10 years until they separated in October 2016.
[3] The Applicant is 45 years old. She once worked at a grocery store. Over most of the relationship, she worked as a homemaker and cared for her daughter from a prior relationship. The daughter resided with the parties until she turned 18 years old and left home to live independently.
[4] Around 2012, the Applicant sought to re-enter the workforce. She enrolled in a medical administration program at a private college to upgrade her skills. Regrettably, however, the college lost its accreditation which left the Applicant unable to work in her chosen field and saddled with
student debts. She later found some casual work, but did not find regular employment. Currently, the Applicant is unemployed.
[5] The Respondent is 51 years old, and is a self-employed locksmith. During the relationship, he worked to support the Applicant and the daughter. His income is unclear as he did not provide financial disclosure and did not have his business income valued to assess his support obligation, as the court ordered him to do.
[6] After separation, the parties lived separately and apart in the family home which they had jointly owned. Under an informal arrangement, the Respondent lived in the basement and paid upkeep and carrying costs for the home while the Applicant lived upstairs with the daughter. Given their arrangement, the Applicant initially did not seek spousal support from the Respondent.
[7] The Respondent later re-partnered. Over time, his new partner began to cohabit with him in the basement of the family home. In 2018, the Respondent married his new partner and they had a child in early 2019. The marriage strained the Respondent’s relationship with the Applicant and aggravated the conflict between the parties.
[8] In early 2019, the Respondent asked the Applicant to leave the family home. The Applicant initially refused to leave and asked to sell the home. The Respondent expressed a preference to buy out the Applicant’s interest in the home, but ultimately he did not do so. Following a period of escalating tensions, the Applicant left the family home in March 2019. Due to her limited financial means, the Applicant moved to her parents’ home where she continues to reside.
Litigation History
[9] On April 12, 2019, the Respondent commenced a civil proceeding (CV-19-1576) and brought a motion without notice to refinance the family home without the Applicant’s consent or signature. The Respondent’s motion was unsuccessful.
[10] On April 16, 2019, the Applicant brought this application for a partition and sale of the family home, an accounting of the funds spent by the Respondent from a second mortgage on the home, and spousal support. She then moved to stay the civil proceeding and sell the home. Her motion was adjourned to permit the Respondent an opportunity to file responding materials, but
he did not file any materials. By order dated April 30, 2019, Fowler Byrne J. ordered the sale of the family home and awarded the Applicant $5,000.00 in costs for the motion.
[11] The Respondent did not comply with the April 30, 2019 order. His behaviour delayed and impeded the sale of the family home.
[12] The Applicant moved to enforce the order to sell the family home. By endorsement dated June 6, 2019, Bloom J. granted terms to sell the home and to prevent the Respondent from obstructing the sale. Bloom J. awarded the Applicant $4,000.00 in costs for the motion.
[13] On June 26, 2019, the parties attended a case conference. During the conference, Price J. ordered the Respondent to provide financial disclosure including an accounting for his use of the funds from the second mortgage on the family home.
[14] On July 12, 2019, I heard the Applicant’s motion for a finding of contempt against the Respondent due to his behaviour that had impeded the sale of the family home. Although I did not find him in contempt, I found that the Respondent had acted improperly and likely to frustrate the sale of the home where he continued to reside. I made a prescriptive order to allow the home to be sold in reasonable fashion, and awarded the Applicant $3,800.00 in costs for the motion.
[15] The Respondent did not pay the above-mentioned costs orders.
[16] The parties later agreed on terms to sell the family home, and agreed to equally share the net proceeds of sale. However, the Respondent refused to pay the outstanding costs orders from his share of the net sale proceeds. The matter returned to court. By order dated August 27, 2019, Gibson J. confirmed the terms for selling the home, ordered the outstanding costs orders to be paid from the Respondent’s share of the sale proceeds, and awarded $1,500.00 in costs to the Applicant.
[17] The family home was sold in August 2019. Proceeds from the sale were held in trust.
[18] On September 26, 2019, the parties attended a settlement conference. At the conference, Price J. made an order: a) giving the Respondent a last chance to satisfy the earlier June 26, 2019 order for financial disclosure; b) appointing a valuator to assess the Respondent’s business income;
c) requiring the valuation fees to be paid from the Respondent’s share of the net proceeds of sale
for the family home; and d) granting leave for the Applicant to move to strike the Respondent’s pleadings.
[19] The Respondent did not provide financial disclosure or retain the business income valuator as he was ordered to do.
[20] On December 20, 2019, the Applicant argued a motion to strike the Respondent’s pleadings for non-compliance with the June 26, 2019 and September 26, 2019 orders. Finding that the Respondent had an established history of non-compliance with court orders, Ricchetti J. granted the Applicant’s motion and stated, “[t]his is the exceptional case that, unless the Respondent’s pleadings are struck, will bring the administration of justice into disrepute”: Giavon v. Nagy, 2020 ONSC 21 at paras 73-74. Ricchetti J. further held (at para 76):
Given the Respondent’s history of his actions and failures in this case, I am of the view that there is no other remedy that will appropriately and reasonably deal with the Respondent’s non-compliance with the [financial disclosure] Orders.
[21] On February 10, 2020, Ricchetti J. awarded the Applicant $8,197.30 in full recovery costs for the motion to strike, and ordered the costs to be paid from the Respondent’s share of the net proceeds of sale for the family home. Ricchetti J. held that the Respondent had acted in bad faith and a disregard for the administration of justice that warranted full recovery costs:
I agree that full recovery of costs is warranted in this case because this history of this proceeding shows: a wanton disregard by the Respondent of the administration of justice; court rules; court orders; a deliberate attempt to frustrate, delay and cause the Applicant to incur significant costs; and a deliberate withholding of his important financial information from the court and the Applicant.
I am satisfied that the Respondent acted in bad faith and a full recovery cost order is appropriate.[^2]
[22] This matter was scheduled for an uncontested trial on August 24, 2020. However, on that date, the Respondent asked to adjourn the trial to allow him an opportunity to retain counsel and appeal the decision to strike his pleadings. By endorsement dated August 24, 2020, Emery J. adjourned the trial to October 19, 2020, awarded $1,265.00 to the Applicant for costs thrown away, and ordered these costs plus $3,000.00 in costs that Gray J. had awarded the Applicant in the civil matter to be paid from the Respondent’s share of the remaining sale proceeds for the family home.[^3]
[23] The Respondent did not appeal the decision to strike his pleadings.
[24] On or about October 15, 2020, the Respondent served a motion to further adjourn the uncontested trial and reinstate his pleadings. By endorsement dated October 22, 2020, André J. dismissed the motion to reinstate the Respondent’s pleadings, adjourned the uncontested trial to the week of February 16, 2021, and granted the Respondent a limited ability to participate at the uncontested trial (i.e., by cross-examining witnesses and making closing submissions). In addition, André J. awarded the Applicant $2,000.00 in costs payable from the Respondent’s remaining share of the sale proceeds for the family home, and further ordered $5,000.00 of the sale proceeds to be released to the Applicant.
Proceeds from the Jointly-Held Family Home and the Applicant’s Belongings
[25] On August 30, 2019, the parties sold the jointly-held family home. The proceeds of sale amounted to $411,428.91 from which the parties paid their outstanding first and second mortgages, the balance of their realtor commission, an unpaid final hydro bill of $533.51 for the period from August 21, 2019 to September 17, 2019 (i.e., after the Applicant had left the home, where the Respondent was residing with his wife and their child), and legal fees and disbursements for their real estate solicitor. After these amounts were paid, the net sale proceeds amounted to $100,511.25, which left each party with $50,255.63 as their half-share of the net proceeds of sale. From this amount, funds were paid to the Applicant from the Respondent’s half-share to satisfy the costs owed to her in the family and civil proceedings. In addition, funds were advanced to the Applicant from her half-share of the proceeds. These payments and advances are set out in a reconciliation statement that their real estate solicitor prepared, which is reproduced below as Schedule “A” to these reasons.
[26] As mentioned earlier, André J. awarded the Applicant $2,000.00 in costs for the motion to reinstate the Respondent’s pleadings, and ordered these costs to be paid from the Respondent’s remaining share of the sale proceeds for the family home. André J. also ordered $5,000.00 to be released to the Applicant from the net sale proceeds. However, for reasons that are unclear, the
$5,000.00 release was drawn against $2,500.00 from each party’s remaining share of the proceeds. In my view, the entire $5,000.00 release to the Applicant should have been paid from her remaining share of the proceeds without apportioning half of the release against the Respondent’s remaining
share. After adjusting for this, I find that the Applicant’s remaining share of the net sale proceeds should be $22,758.24 and the Respondent’s share should be $7,576.62, respectively.
[27] The Applicant claims that the Respondent was unjustly enriched when the parties jointly paid the hydro bill and the second mortgage from the proceeds of sale for the family home. To succeed with her claim for unjust enrichment, the Applicant must show an enrichment or benefit to the Respondent, a corresponding deprivation to herself, and the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 at para 32.
[28] As explained earlier, the parties jointly paid the $533.51 final hydro bill from the proceeds of sale for the family home. When the hydro charge was incurred, the Respondent was residing in the home with his wife and their child. By this time, the Applicant no longer was residing there. In the circumstances, I am satisfied that the Respondent was unjustly enriched by the Applicant’s contribution to pay the hydro bill, for which there was no juristic reason. In my view, is only fair and just for the Respondent to fully pay this utility bill. Accordingly I find that the Respondent should pay $226.76 to the Applicant and thereby assume the full cost of this utility charge.
[29] In 2018, the parties jointly took out a $110,000.00 second mortgage on the family home, with a total borrowing cost of $23,628.73. The Respondent took all of the funds from the second mortgage and did not account for his use of these funds despite court orders that required him to do this. His failure to account for these funds informed the decision to strike his pleadings.[^4]
[30] The parties used some of the $110,000.00 second mortgage to pay off their prior second mortgage of $44,000.00. After deducting its borrowing cost of $23,628.73, the remaining balance of the second mortgage funds was $42,371.27 which gave each party a half-share of $21,185.64. Following a $18,860.00 deduction for her student debt that was retired with these second mortgage funds, the Applicant claims $2,325.64 as her remaining half-share of these funds.
[31] The Respondent claims that he used the balance of the remaining second mortgage funds to pay off family debts that the parties jointly incurred during their relationship. The Applicant is skeptical that the Respondent used the balance to pay family debt and instead believes that he likely appropriated these funds for his personal use or to pay off his personal loans that were unrelated to the Applicant or the daughter. Given the Respondent’s repeated failure to give an
accounting of the second mortgage funds, the Applicant asks the court to draw an adverse inference and find that the Respondent used the balance of the second mortgage funds for his personal use.
[32] As the Respondent did not account for his use of the second mortgage funds or fulfill his financial disclosure obligations, I am not persuaded by his claim that these funds were used to retire family debts that the parties jointly incurred. If this indeed were true, it stands to reason that he would have provided financial disclosure to show this without hesitation. The Respondent deliberately failed to comply with the orders to account for these funds, which is concerning and suspicious. His failure to account makes it impossible to know with any degree of certainty how he used the second mortgage funds. Accordingly, I find that it is appropriate to draw an adverse inference and conclude that he used the balance of the second mortgage funds for his personal use. I accept that the Respondent was enriched by having the balance, and that the Applicant was correspondingly deprived of her share of the funds without juristic reason despite sharing the borrowing cost for acquiring the funds.
[33] Having regard to the facts of this case, I am persuaded to adopt the Applicant’s proposal for remedying the Respondent’s unjust enrichment. Although the evidentiary record gives only an incomplete picture of the parties’ finances, which is less than ideal, I accept that this problem was entirely due to the Respondent’s failure to give the Applicant proper financial disclosure. In the circumstances, I accept that it is just and reasonable to deduct $18,860.00 (i.e., as the cost of retiring her student debt) from the Applicant’s share of the second mortgage funds and award her
$2,325.64 as her remaining half-share of these funds.
[34] The order of Gibson J. dated August 27, 2019 gave the Applicant an opportunity to attend the family home on a specified date to retrieve her belongings, and directed the Respondent and his partner to not be present on that occasion. However, when the Applicant came to collect her furniture and other personal items, the Respondent and his wife were present and called police to prevent the Applicant from entering the home to retrieve her items. Ultimately, the parties paid the purchasers of the home $1,000.00 to dispose of the Applicant’s furniture and belongings which the Respondent had abandoned at the home after refusing to allow her to collect them. In light of this, I find that the Respondent should pay the Applicant $500.00 to offset her contribution to the disposal cost (i.e., so that the Respondent solely assumes this cost) and $3,000.00 to replace these items. Later in these reasons, I shall return to this point in addressing the matter of costs.
Spousal Support
[35] Every spouse is obliged to provide support for themselves and for the other spouse in accordance with need, to the extent they are capable of doing so: s. 30 of the Family Law Act, RSO 1990, c. F.3 (“FLA”).
[36] A court may, on application, order a person to provide support for his or her dependents and determine the amount of support: ss. 33(1) of the FLA.
[37] Under ss. 33(8) of the FLA, the purpose of a spousal support order is to:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home) of the Family Law Act.
[38] In determining the amount and duration of spousal support, if any, the court shall consider all of the parties’ circumstances including these factors under ss. 33(9) of the FLA:
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) [REPEALED].
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) [REPEALED].
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
[39] Spousal support is generally intended to address financial inequity following the end of a relationship. Spousal support may have a contractual, compensatory and non-compensatory basis: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 SCR 420 at para 37. Any or all of these bases may factor in an order for spousal support, depending on the circumstances of the case. A spousal support order is intended to achieve an equitable sharing of the consequences of a relationship or its breakdown by recognizing and incorporating any significant factors that adversely impact the economic prospects of the disadvantaged spouse: Moge v. Moge, 1992 25 (SCC), [1992] 3 SCR 813 at 864-866.
[40] Although Moge and Bracklow dealt specifically with spousal support provisions under the Divorce Act, RSC 1985, c. 3 (2nd Supp), the principles arising from these cases are instructive in considering a spousal support order under ss. 33(8) and (9) of the FLA which are analogous to the spousal support provisions under s. 15.2 of the Divorce Act: Ammar v. Smith, 2021 ONSC 3204 at
para 254; Juvatopolos v. Juvatopolos, 1994 7451 (ONSC) at para 52; Beneteau v. Young, 2009 40312 (ONSC) at paras 203-204.
[41] Compensatory support is meant to address a spouse’s contributions to the relationship and foregone careers or missed financial opportunities during the relationship or upon its breakdown: Macintyre v. Winter, 2020 ONSC 4376 at para 48; Bracklow at paras 1, 41 and 49. Common markers for compensatory support claims include sacrificed career opportunities, significant household contributions, such as staying at home with children full-time, and progressing the payor’s career: Rogerson and Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016) at p. 5; McIntyre at paras 48-49, Beneteau v. Young, 2009 40312 (ONSC) at paras 208-210.
[42] Even where a compensatory loss is not established, a spousal breakup may cause economic hardship in a broader non-compensatory sense that warrants non-compensatory support: Bracklow at para 31. Non-compensatory support may be based on the “need” of a recipient spouse, which is not limited to their basic needs but may include a significant decline in their standard of living after the spousal relationship has dissolved, in light of their income and reasonable expenses: McIntyre at paras 53-54; Gray v. Gray, 2014 ONCA 659 at para 27.
[43] The goal of promoting self-sufficiency does not impose a duty on a recipient spouse to become self-sufficient, but is a factor in determining entitlement and quantum of support: Leskun
v. Leskun, 2006 SCC 25 at paras 26-27; Moge at 853; Bracklow at paras 31-32. Self-sufficiency is assessed by the parties’ standard of living before the breakdown in light of what they reasonably can anticipate after separation: Fisher v. Fisher, 2008 ONCA 11 at para 53.
[44] The court may exercise its discretion to impose time limits on support payments: s. 33(9) of the FLA. Courts may make time-limited spousal support orders in cases where, due to a young age, a short or medium length marriage, or other factors, a dependent spouse is more likely to become self-sufficient: Fisher at paras 36 and 85; Krauss v. Krauss, 1991 12893 (ON CA), [1991] OJ No 777 (CA) at para 2; Psavka v. Kroll, 2019 ONSC 2009 at para 384; M.P. v. M.P., 2020 ONSC 4559 at paras 111 and 129. Ultimately, there comes a point beyond which a spouse is no longer required to support another: Moge at 880.
[45] The Applicant claims that the parties separated on or about October 1, 2016. Although the Respondent disputes this date of separation and argues that the parties separated in or around December 2012, his pleadings were struck leaving him unable to claim a different separation date: Norris v. Norris, 2019 ONSC 4490 at para 7; Milutinovic v. Milutinovic, 2018 ONSC 4310 at para
- From the evidentiary record, I am satisfied that the parties began living separate and apart on October 1, 2016 when they each occupied different parts of the family home and began to reside separately without a reasonable prospect or expectation of resuming cohabitation: Warren v. Warren, 2019 ONSC 1751 at para 7; Zahelova v. Wiley, 2020 ONSC 6990 at paras 20-22.
[46] For the first time at the uncontested trial, the Respondent asserted that the parties had signed a separation agreement on August 31, 2009. The Applicant denied that she ever signed a separation agreement and claims that she never saw the purported agreement proffered by the Respondent until her cross-examination at trial. Importantly, the Respondent never advised that he intended to rely on a separation agreement, never previously indicated that one existed, never raised the separation agreement in his pleadings, and never disclosed a separation agreement to the Applicant before trial. In light of this, I sustained the Applicant’s objection to the Respondent’s effort to introduce the document during her cross-examination and did not allow it into evidence.
[47] I am satisfied that the Applicant has established a compensatory claim to spousal support based on her role during her relationship with the Respondent. The parties maintained traditional family roles by which the Applicant worked as a homemaker and caregiver to the daughter while the Respondent worked outside the home to financially support the family. The Applicant’s household work supported the Respondent’s needs and gave him the time and opportunity to develop his small business and build its income earning potential. In my view, the Applicant’s role as a homemaker negatively impacted her own career goals while advancing those of the Respondent.
[48] Having regard to the Applicant’s financial interdependence with the Respondent during their relationship and her post-separation standard of living, I am satisfied that the Applicant has established a non-compensatory basis to claim spousal support. During their relationship, the parties combined their financial affairs under an arrangement by which the Applicant essentially gave all of her money to the Respondent who jointly manage their finances. Although they shared a relatively modest standard of living, both enjoyed a comfortable lifestyle in the family home.
The Applicant’s post-separation lifestyle is quite different. Due to her limited means, she now lives with her parents and relies entirely on their generosity to support herself. Her current standard of living is a far cry from what it was during the relationship.
[49] The Applicant is 45 years of age and has a high school education. At one point during the relationship, she attended a training program at a private college to upgrade her skills. However, the college lost its accreditation which left her with significant debt and an inability to work in her chosen field. Over the course of the relationship, the Applicant was largely unemployed. Her work history is largely limited to retail employment experience.
[50] The Respondent is 51 years of age and resides with his wife and their young child. As set out earlier, he operates his own locksmith business. Given the Respondent’s failure to provide financial disclosure or allow a court-appointed valuator to assess his business income for spousal support purposes, the Applicant had very limited information on which to ground her claim for spousal support. In the circumstances, the Applicant seeks to impute income to the Respondent.
[51] Where a support payor fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them: ss.19(1)(f) of the Federal Child Support Guidelines; Woofenden v. Woofenden, 2018 ONSC 4583 at para 38; Szitas
v. Szitas, 2012 ONSC 1548 at para 57; Milutinovic at paras 20-21. In considering the amount of income to impute, the court must consider what is reasonable in the circumstances and determine the selected amount by applying a rational basis that is grounded in the evidence: Drygala v. Pauli, 2002 41868 (ONCA) at para 44. The onus is on the spouse seeking to impute income to establish the evidentiary foundation: Berta v. Berta, 2015 ONCA 918 at para 63. The amount of imputed income may be based on the payor’s previous earning history: Drygala at para 46; McNeil v. Dunne, 2019 ONSC 2528 at para 53. Although some of this jurisprudence deals with child support, the test for imputing income is the same in determining child and spousal support: Woofenden at para 41.
[52] The only information available to the Applicant regarding the Respondent’s income is what he self-reported on two (2) mortgage applications which are part of the court record. Around the October 1, 2016 date of separation, the Respondent reported an annual income of $70,000.00 from his locksmith business in a mortgage application to Centum L.M. Group Inc. dated August 8, 2016.
Several years later, the Respondent reported that his annual income from the locksmith business had decreased to $55,000.00, as indicated in a mortgage application to Northwood Mortgage Ltd. dated March 15, 2019. The Respondent has not filed tax returns since 2010. Moreover, he has refused to comply with financial disclosure orders and not provided meaningful information about his income. The Applicant has no income records for the Respondent apart from these mortgage applications, and no way of knowing what his income or expenses were that led to the income figures reported in both applications.
[53] Having regard to the entire evidentiary record, I am satisfied that it is fair and just to impute an annual income to the Respondent of $60,000.00 (i.e., that comprises $55,000.00 of imputed employment income and $5,000.00 in unreasonably deduced expenses) which is slightly lower than the average of the $70,000.00 and $55,000.00 income figures that he reported on the mortgage applications. Given his lack of financial disclosure, I find that imputing his income in this fashion is fair and reasonable in determining his spousal support obligation to the Applicant in this case.
[54] In addition, I am persuaded that income should be imputed to the Applicant.
[55] Between October 1, 2016 and May 2018, the Applicant claims that she applied for work with a number of potential employers, including several retailers. However, for reasons that are unclear, she did not produce a resume or disclose any records containing job search information. Although the Applicant tried to pursue a career diploma in 2012, she did not otherwise try to upgrade her educational credentials, seek further job retraining, or pursue any self-employment opportunities.
[56] Unable to secure full-time employment, the Applicant claims that she obtained casual work from about the summer of 2016 until April or May of 2017 by helping to care for her sister-in- law’s elderly mother for $40 per day. The Applicant also claims that she periodically worked as a dog sitter earning $20 per day for one or two days per week, which lasted less than one year. Beyond this, the Applicant has been unemployed from October 1, 2016 to the present.
[57] In or around May 2018, the Applicant was charged with undisclosed criminal offences that are pending. According to the Applicant, her bail conditions prevent her from applying for work using electronic means, and from performing work that requires Internet access or use. She also claims that looking for work would have been futile as potential employers invariably would have
required her to disclose her charges and likely would not have hired her due to the nature of her charges, which apparently are troubling. She also claims that she was hesitant to seek work for fear of prejudicing her future ability to obtain employment from the same potential employers once her criminal matter concludes with what she hopes will be a favourable outcome for herself.
[58] The Applicant claims that her inability to obtain at least part-time employment since May 2018 is attributed to her criminal charges and bail conditions. However, her earlier inability to find regular work between 2016 and 2018 and her apparent failure to record her job search efforts raise questions about the adequacy of her efforts to obtain employment. Absent any meaningful information about her charges, which are still pending, I am not prepared to find that the charges themselves necessarily have hindered her efforts to find work. That said, I accept that her inability to use the Internet due to her bail conditions is clearly a challenge for her job search efforts, which cannot be ignored. In addition, I am persuaded that the business disruption caused by the ongoing COVID-19 pandemic since March 2020 likely impacted her ability to find suitable work that, realistically, would have been at minimum wage. As she was unemployed immediately prior to the pandemic, she did not qualify for pandemic-related government benefits.
[59] After separating on October 1, 2016, and before departing the family home in March 2019, the Applicant did little to improve her ability to financially support herself. She did not find regular work, did not upgrade her job skills or retrain, and did not pursue self-employment. She also did not record her job search efforts. She claims that she submitted several job applications and found some casual work. On balance, however, I conclude that her job search efforts were not adequate.
[60] Accordingly, having regard to the record, I am satisfied that it is fair and just to impute
$15,000.00 of annual income to the Applicant as she proposed in her submissions. This figure approximates part-time employment at minimum wage for roughly 20 hours per week. In my view, imputing this amount of income to her is appropriate as it reasonably reflects the part-time employment income that she likely would have obtained with reasonable effort and diligence.
[61] Having regard to the totality of the evidence, I am satisfied that this is a case where it is fair and just to limit the duration of the Respondent’s spousal support obligation. The Applicant was 40 years of age at separation, following a 10 year relationship, and is now 45 years of age.
She no longer has a dependent. In addition, she is not burdened by significant debts. She is medically able to work and has some limited, albeit dated, prior retail and casual work experience.
[62] After separating, the parties entered into a post-separation arrangement by which they lived separately and apart in the family home with the Respondent paying for all of their common living expenses and the carrying costs for the family home. Initially, the Applicant was content with this financial arrangement and accepted it in lieu of receiving support payments. However, after re- partnering sometime in 2017, the Respondent invited his then-girlfriend, now his wife, to cohabit with him in the basement of the family home. Unsurprisingly, the arrival of his new partner ignited tensions between the parties, particularly after his relationship with the daughter, with whom he was in loco parentis, broke down. The daughter then left the family home to live independently. After fathering a child with his partner in early 2019, the Respondent began urging the Applicant to leave the family home. Around March 1, 2019, the Applicant left the family home to live with her parents. The Respondent paid no spousal support to the Applicant. Given her limited means and lack of employment, the Applicant is relying on the generosity of her parents to support her basic living needs.
[63] The Spousal Support Advisory Guidelines (“SSAG”) generate ranges for the amount and duration of spousal support, which are based on different formulas and the circumstances of each case. Here, the without child support formula for medium-length relationships yields spousal support amounts that reflect the reduced importance of compensatory considerations. More important in medium-length relationships is the transitional function of non-compensatory support: s. 12.5 of the SSAG.
[64] Applying the payor Respondent’s imputed business income of $55,000.00 plus $5,000.00 of income adjustments, and the recipient Applicant’s imputed part-time income of $15,000.00, the without child support formula shows a monthly support figure of between $589.00 and $785.00 per month, with a duration of 5 to 10 years from the date of separation.
[65] On the facts of this case, I find that it would be fair and just for the Respondent to pay the Applicant low-range spousal support of $589.00 per month for a duration of 7 ½ years (i.e., to approximate the mid-range duration) less an offset of 2 ½ years (i.e., from roughly October 2016 to March 2019) when the Respondent paid for the parties’ common expenses and carrying costs
for the family home while the parties lived separate and apart. In my view, this amount and duration of spousal support would fairly address the Applicant’s disadvantage and reasonably support her effort to re-join the workforce and appropriately develop self-sufficiency. The offset of spousal support fairly accounts for the Respondent’s payments towards the parties’ joint living expenses during the initial post-separation period when they had an informal arrangement in lieu of spousal support being paid to the Applicant. In addition, this award of spousal support factors the needs of the Respondent’s second family which, in my view, justifies an order for spousal support at the lower end of the SSAG range: Gray at para 45; Soleimani v. Melendez, 2019 ONSC 36 at para 27; Fisher v. Fisher, 2008 ONCA 11 at para 40. Despite his failure to provide adequate financial disclosure, I am satisfied that the Respondent should reasonably manage spousal support payments of $589.00 per month for a 5 year duration based on the information found in his financial statement sworn June 10, 2019 which shows that his income exceeds his expenses by approximately $1,000.00 per month.
[66] The parties were financially interdependent and maintained a traditional relationship that allowed the Respondent to benefit from the Applicant’s household contributions while he worked at his locksmith business. The Applicant’s departure from the family home left her economically disadvantaged as her limited means forced her to move in with her parents and maintain a lower standard of living while the Respondent continued to reside at the family home with his partner and their child until the property was sold. The Respondent argued that he also experienced a similarly reduced standard of living after the family home was sold. However, given his failure to provide financial disclosure which frustrated a proper consideration of the financial circumstances in this case, I am unpersuaded by his unsupported claims.
[67] To avoid any financial hardship, I find that the Respondent should pay prospective spousal support to the Applicant starting August 1, 2021 when the first monthly spousal support payment of $589.00 shall be due, with his last spousal support payment due on July 1, 2026 (i.e., for a total payment period of 5 years).
Costs
[68] As set out below, I find that the Respondent should pay the Applicant her costs on an elevated scale due to his unreasonable behaviour.
[69] Costs are in the court’s discretion: ss. 131(1) of the Courts of Justice Act. Rule 24 governs the framework for awarding costs in family proceedings. Modern family costs rules are intended to foster the following purposes: (1) to partially indemnify successful litigants, (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants, and (4) to ensure that cases are dealt with justly under Rule 2(2): Mattina v. Mattina, 2018 ONCA 867 at para 10. Two other touchstone considerations in awarding costs are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840 at paras 11-12. I have considered the factors for setting costs under Rule 24(12) including the reasonableness of each party’s behaviour under Rule 24(12)(a)(i) and the criteria under Rule 24(5).
[70] The Applicant was successful in this case and is presumptively entitled to her costs.
[71] Although the Applicant served an offer to settle on October 31, 2019, I am satisfied that the cost consequences under Rule 18(14) should not apply as she did not obtain a result that was as favourable as the terms in her offer. The Respondent did not serve an offer to settle.
[72] The Applicant’s bill of costs includes the attendance before Stribopoulos J. on October 19, 2020 when the uncontested trial was to proceed. However, on October 15, 2020, the Respondent served the Applicant with motion materials for an order to adjourn the trial and reinstate his pleadings. On October 19, 2020, Stribopoulos J. began to hear submissions on the motion before recusing himself due to a conflict with the law firm that the Respondent had retained. Noting that the basis for his recusal was not the fault of either party, Stribopoulos J. adjourned the matter to October 21, 2020 when André J. heard the Respondent’s motion. In the circumstances, I find that it would be unfair for the Respondent to pay the Applicant’s costs for the October 19, 2020 hearing. As a result, this amount shall not be reflected in my order for costs.
[73] In submissions, the Applicant correctly noted out that the Respondent was poorly organized at the uncontested trial and required lengthy adjournments to prepare copies of materials for use during his cross-examination of the Applicant. I accept that the Respondent did not share these materials in advance of trial, and that most of his documents had limited evidentiary value, if any. Regrettably, these adjournments delayed the trial. However, the Respondent is a self-represented litigant who was unfamiliar with court procedures. In my view, he attempted to address the legal and evidentiary issues at trial to the best of his ability. He apologized multiple times during the
trial for his unpreparedness, which I accept as a genuine expression of his regret over the resulting delay due to his inexperience. In light of this, I find that the Respondent’s conduct at trial should not result in a higher scale of costs.
[74] That being said, I am satisfied that the Respondent’s failure to comply with court orders before trial amounted to bad faith conduct that warrants an award of costs on an elevated scale. Quite apart from not complying with his disclosure obligations under the Family Law Rules, the Respondent failed to comply with court orders that expressly directed him to provide financial disclosure and engage a business valuator. Despite having ample time and opportunity to fulfill these obligations, which easily could have been discharged, the Respondent never provided the ordered disclosure. Having regard to the record in this case, I am satisfied that the Respondent wilfully ignored the financial disclosure orders and chose to deliberately disobey them to conceal his finances from the Applicant. The Respondent’s disregard for court orders was blatant, caused unnecessary difficulties for the Applicant in this matter, and was entirely unacceptable. Although the legal issues themselves were relatively uncomplicated, the Respondent’s conduct caused this case to become much more difficult for the Applicant, both factually and procedurally, and forced her to incur added time and cost. In my view, the Respondent’s misconduct warrants an elevated scale of costs to reflect the court’s displeasure with his behaviour and to preserve the integrity of the administration of justice.
[75] In addition, I find without hesitation that the Respondent acted in bad faith by calling police to prevent the Applicant from retrieving her furniture and personal belongings from the family home, despite Gibson J.’s order dated August 27, 2019 that expressly permitted her to collect these items. The came after the Respondent had delayed the sale of the family home for the ulterior motive of extending his ability to live there with his wife and child. Quite apart from delaying the Applicant’s ability to access her equity in the family home, the Respondent’s misconduct essentially caused the Applicant to lose her household possessions after he vacated the property and abandoned her belongings. To add insult to injury, the Applicant was forced to pay half the disposal cost charged by the purchaser of the home to remove her items from the property. In my view, the Respondent engaged in bad faith conduct that fell far below a litigant’s expected conduct and resulted in wrongdoing for a dishonest purpose causing moral iniquity: Spadacini-Kelava v.
Kelava, 2021 ONSC 2490 at paras 75-76; Scalia v. Scalia, 2015 ONCA 492 at para 68. The Respondent’s conduct was egregious and deplorable.
[76] In determining costs, the Respondent’s ability to pay is a relevant consideration: C.A.M. v. D.M., 2003 18880 (ONCA) at para 42; Spadacini-Kelava at para 79. His limited financial means should not shield him from any liability for costs and cannot excuse his unreasonable behaviour: Jackson v. Mayerle, 2016 ONSC 1556 at paras 106-107. In light of my finding that he acted unreasonably, I accept that his limited financial means should be given less weight in this analysis: Thompson v. Drummond, 2018 ONSC 4762 at para 22; Spadacini-Kelava at para 81.
[77] Ultimately, I am satisfied that it is just and proportional for the Respondent to pay the Applicant costs of $18,000.00, inclusive of taxes and disbursements, in light of the foregoing. Given his limited financial means, I am persuaded that payment arrangements are needed to avoid financial hardship. To this end, the Respondent shall immediately pay $1,000.00 in costs to the Applicant from his remaining share of the net sale proceeds of the family home, and thereafter pay the balance of his costs to her in monthly instalments of $250.00 over a period of 68 months starting on August 1, 2021.
Enforcement by the Family Responsibility Office
[78] I am satisfied that it is fair and just to order that the costs award be made enforceable by the Family Responsibility Office (“FRO”) pursuant to ss. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act. Although this was a multi-issue case, I am satisfied that most of the legal costs incurred by the Applicant related to the issue of spousal support which clearly was the principal issue in this case. Where the principal issue at trial relates to support, the court may order its entire costs award to be enforced by FRO pursuant to ss. 1(1)(g) without having to dissect an apportionment based on what amount properly relates to the support issue: Wildman v. Wildman, 2006 33540 (ONCA) at paras 56-59.
Outcome
[79] Accordingly, I make the following orders:
a. The Applicant’s remaining share of the net sale proceeds of the family home is
$22,758.24, and the Respondent’s remaining share of these proceeds is $7,576.62, respectively;
b. The Applicant’s remaining share of the net sale proceeds of the family home, which are being held in trust by the real estate solicitor who acted on the sale of the property located at 16 Foster Crescent in Brampton, may be released to the Applicant forthwith;
c. From the Respondent’s remaining share of the net sale proceeds of the family home, the amount of $6,052.40 shall be paid to the Applicant to reflect the following:
i. $226.76 to reimburse the Applicant for the amount she paid against the final hydro bill for the family home;
ii. $2,325.64 as the Applicant’s remaining half-share of the second mortgage funds;
iii. $500.00 to reimburse the Applicant for the amount she paid against the cost to dispose of her belongings from the family home; and
iv. $3,000.00 to reimburse the Applicant for the value of her personal items in the family home which she lost when they were disposed of;
d. Spousal support shall be paid by the Respondent to the Applicant on the first day of each month from August 1, 2021 until July 1, 2026 (i.e., for a 5-year duration) in the amount of $589.00 per month;
e. The Respondent shall pay costs to the Applicant of $18,000.00 by immediately paying her $1,000.00 from his remaining share of the net sale proceeds of the family home, after which any remaining funds attributed to the Respondent’s share of the net sale proceeds may be released to him. Thereafter, the Respondent shall pay the Applicant the remaining costs owed to her in monthly instalments of $250.00 over a period of 68 months starting on August 1, 2021; and
f. The above-mentioned spousal support and costs, as set out at paragraphs 77(d) and (e), respectively, shall be enforceable by the Family Responsibility Office.[^5]
[80] The Applicant may submit a draft final order to my judicial assistant for my consideration and need not obtain the Respondent’s approval as to its form and content.
Doi J.
Date: July 16, 2021
Schedule “A”
Funds from Sale of Family Home
Received from Sale
$411,428.91
2nd Mortgage Payout
$137,087.76
CIBC Mortgage Payout
$167,741.44
Balance of Commission
$4,379.75
Unpaid Hydro Bill
$533.51
Real Estate Lawyers fees and disbursements
$1,175.20
Balance
$100,511.25
Applicant Wife
Respondent Husband
50% of Net Sale Proceeds
$50,255.63
$50,255.63
Orders of Court
Order of Justice Gibson dated August 27, 2019 re 3 unpaid cost orders
($12,800.00)
Cost Order of Justice Gibson dated August 27, 2019
($1,500.00)
Advance to Applicant per Order
($14,300.00)
Order of Justice Gray dated September 12, 2019
($13,916.62)
Cost Order of Justice Gray dated September 12, 2019
($3,000.00)
Cost Order of Justice Ricchetti dated February 10, 2020
($8,197.39)
Advance to Applicant per Order
($8,197.39)
Cost Order of Justice Emery dated August 24, 2020
($1,265.00)
Cost Order of Justice Andre dated October 22, 2020
($2,000.00)
Advance to Applicant per Order
($2,500.00)
($2,500.00)
Balance owed to each party
$25,258.24
$5,076.62
TOTAL remaining in Trust
$30,334.85
COURT FILE NO.: FS-19-00000099-00
DATE: 2021 07 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Romina Giavon, Applicant
AND:
Christopher Nagy, Respondent
BEFORE: DOI J.
COUNSEL: M.A. Newton, for the Applicant
C. Nagy, self-represented Respondent
ENDORSEMENT
Doi J.
DATE: July 16, 2021
[^1]: Giavon v. Nagy, 2020 ONSC 21.
[^2]: Cost endorsement of Ricchetti J. dated February 10, 2020 at paras 10 and 11.
[^3]: Judgment of Gray J. dated September 12, 2019 (CV-19-1729) at para 2.
[^4]: 2020 ONSC 21 at paras 59, 62(d) and 73-75.
[^5]: Either party may bring any mathematical or calculation issues to my attention by serving notice to the other party and writing to the court within 30 days of the release of this decision.