COURT FILE NO.: FC-16-1371

DATE: 2021/08/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Stephanie Pierre

Applicant

– and –

Mesmin Pierre

Respondent

Katrina Anders, for the Applicant

Self-Represented Respondent

HEARD: January 18, 20 to 22, 25, 27 to 29, February 1, and 3 to 5, 2021

REASONS FOR JUDGMENT

Justice Engelking

Introduction

1Ms. Pierre has brought an Amended Application in which she seeks, pursuant to the Divorce Act, a divorce, support for herself and the parties child, Dominic, custody (decision-making authority), and access (parenting time) for Mr. Pierre, as well as support for herself and the child, custody (decision-making authority) and access (parenting time) for Mr. Pierre pursuant to the Children’s Law Reform Act, equalization of the parties’ net family properties and sale of the matrimonial home pursuant to the Family Law Act, and adjustments for post-separation expenses and/or occupation rent and costs. The application was brought, and the trial was heard prior to the amendments to the Divorce Act and the Children’s Law Reform Act which have come into effect as of March 1, 2021. Additionally, the matrimonial home was sold prior to the trial.

2In his Amended Answer, Mr. Pierre has made the same claims, except in claims related to property, he included exclusive possession of the matrimonial home and its contents as well as adjustments for post-separation expenses and arrears and prejudgment interest.

3The outstanding issues for trial were:

1. What decision-making authority and parenting time orders are in the best interests of Dominic?

2. What are the incomes of each of the parties for support purposes?

3. What is the appropriate quantum of child support payable and by whom?

4. Is Ms. Pierre entitled to spousal support, and if so, in what quantum and for what duration?

5. What is the equalization payable and by whom?

6. What are the post-separation adjustments and arrears payable and by whom?

4For the reasons that follow, I find that Ms. Pierre shall have sole decision-making authority for Dominic; commencing August 26, 2021, Mr. Pierre shall have parenting time every second weekend from Thursday after school to Monday morning at school, to be extended on holidays or PD days, and every alternating Thursday from after school to Friday at school, as well as specified holiday time; Mr. Pierre shall pay to Ms. Pierre retroactive and on-going child support commiserate with their CRA Line 150 (now 15000) incomes from 2016 onwards; Mr. Pierre shall pay to Ms. Pierre retroactive and on-going spousal support in the mid-range of the Spousal Support Advisory Guidelines commiserate with their CRA Line 150 (now 15000) incomes from January of 2016 to December of 2026; Mr. Pierre shall pay to Ms. Pierre an equalization payment of $213,870.11; and, Mr. Pierre shall pay to Ms. Pierre $11,093.73 in post-separation adjustments.

Background Facts

5Mr. Pierre was born in Haiti in 1970 and immigrated to Canada with his family in 1976.

6Ms. Pierre was born in Germany in 1969 and immigrated to Canada after the parties met and married in Germany on September 15, 2006.

7One child, Dominic Pierre, was born of the marriage on June 5, 2013. The parties separated on December 2, 2015. There is no reasonable prospect of reconciliation.

8The parties built a home together at 6325 Proven Line Road in Richmond, into which they moved, as yet unfinished, in December of 2012.

9From the time of Dominic’s birth, the parties engaged a series of live-in nannies to assist with his care, all of whom were chosen by Ms. Pierre, as follows:

• Meriam, from Spain for a couple of weeks;

• Astrid, from Germany from July 2013 to January of 2014;

• Ingrid, from Germany from January of 2014 to July of 2014; and,

• Clara, from Germany from July of 2014 to January of 2015.

10Dominic then went to a local home day care of Elaine until August of 2015, after which he commenced going to the Madison Montessori school in Kemptville. Dominic now attends St. Cecilia School in Barrhaven.

11In January of 2014, a man named “Stephane” called Ms. Pierre and informed her that his wife and her husband were having an affair. Mr. and Ms. Pierre then attended marriage counselling, which he quit after four sessions. The parties attempted to stay together as Dominic was so young at the time, but eventually Ms. Pierre consulted counsel, and on December 2, 2015, a letter from her counsel, which she saw prior to going to bed with Dominic, arrived at the home for Mr. Pierre. According to Ms. Pierre, when Mr. Pierre saw the letter after he returned from work, he stormed into the bedroom where she and Dominic were sleeping and started yelling at her, which frightened them both. She called the police, who spoke with both parties and then she went to stay at the home of her friend, Jillian, who is a real estate agent in Manotick.

12Dominic returned to Montessori and when Ms. Pierre was at the dentist a couple of days later, she got a call from the Montessori advising her that Mr. Pierre came to the school and picked up Dominic. Ms. Pierre returned to the matrimonial home and Mr. Pierre would not let Dominic leave with her. She thus stayed in the home, along with a friend of Mr. Pierre’s, Marissa, for about 10 days until they could come to a preliminary agreement.

13The agreement was that Dominic would transition to spending more time with Mr. Pierre until they got to a 2/2/3 parenting schedule. On March 24, 2016, the parties entered into a Parenting Agreement¹ which provided at paragraph 1.4 that they agreed to be bound by the Agreement “which settles the issue of custody and the care schedule for Dominic.” Paragraph 2.1 of the agreement provides: “Dominic shall be in the joint custody of Stephanie and Mesmin.” Paragraph 2.3 states that the parents will make important decisions regarding daycare, education, non-emergency health care, major recreational activities and religion together. Paragraph 2.15 provided that the “parenting schedule (regular schedule and holiday schedule) may be reviewed in June 2017.” At paragraph 5.1, the parties agreed that child support and section 7 expenses “shall be payable in accordance with the shared parenting provisions in the Guidelines.”

14In June of 2016, there was a heated exchange between the parties during a drop off of Dominic, wherein Ms. Pierre alleges that Mr. Pierre arrived agitated, started yelling at her and said that if she made him pay a penny of spousal support, he would kill her. Ms. Pierre called the police as a result of this incident as well, and brought a motion for a restraining order, which was ultimately resolved on the basis that the parties’ would be required to communicate only in writing or through counsel, keep a distance of 20 feet from each other and not attend the other’s residence, or Dominic’s daycare during the other parents pick-up or drop-off time.²

15On November 18, 2016, Justice Sheard varied the MacLeod J. order to permit attendance by Ms. Pierre at the matrimonial home (where Mr. Pierre continued to live post-separation), for the purposes of work necessary for its’ sale, and ordered some disclosure and child support. Justice Sheard’s temporary order provided that commencing December 1, 2016, Mr. Pierre was to pay Ms. Pierre $650 per month in child support and 70% of the childcare expenses on a without prejudice basis.

16On March 21, 2017, Justice Doyle granted an order on consent of the parties that the matrimonial home was to be listed for sale by May 1, 2017. She also ordered that Mr. Pierre’s support payments were to continue on an interim without prejudice basis as per the order of Sheard J. and commencing April 1, 2017, Ms. Pierre was to pay Mr. Pierre $585 per month based on an income for her of $60,000. Apportionment of special or extraordinary expenses contributions were fixed at 38% for Ms. Pierre and 62% for Mr. Pierre on his income of $132,252 and her income of $60,000. Justice Doyle fixed retroactive section 7 expenses owed by Mr. Pierre at $1,790 for 2016, which were to be paid from his share of the proceeds of the sale of the matrimonial home. Justice Doyle order additionally that commencing April 1, 2017, Mr. Pierre was to pay spousal support of $1,153 per month to Ms. Pierre.

17The 2/2/3 or an adjusted 2/2/2/1 parenting schedule was in place until Mr. Pierre brought a motion seeking a week on/week off parenting schedule. Justice Audet granted a temporary order on May 16, 2019 varying the parenting agreement to provide, inter alia, that Dominic would reside with Ms. Pierre from Sunday at noon to Thursday morning at school and with Mr. Pierre from Thursday after school to Sunday at noon. This is the regime that was in place at the time of the trial.

Issue #1 – What decision-making authority and parenting time orders are in the best interests of Dominic?

Positions of the Parties

18Ms. Pierre is seeking sole decision-making authority over Dominic and for his time with Mr. Pierre to be reduced to every second weekend and specified shared holiday time. Her view it that, despite her best efforts, trying to coparent with Mr. Pierre has proven impossible. Every issue involves exchanges of emails too numerous to mention, and every decision is either delayed or not executed as a result. Additionally, she has noted issues with Dominic’s behaviour that suggest to her that he needs a more regular, stable home rather than the back and forth between the two homes.

19Mr. Pierre’s position is that the agreement entered into by the parties on March 24, 2016 is binding on the parties in respect of shared decision-making authority. In the alternative, Mr. Pierre is of the view that he should have sole decision-making authority over Dominic because Ms. Pierre is ineffectual at making decisions, and he is the more capable parent to do so. Mr. Pierre is of the view, additionally, that it would be in Dominic’s best interests to have a week on/week off parenting schedule.

The Evidence

20Ms. Pierre’s evidence is that from the time of Dominic’s birth, she has been his primary care giver and the parent who is most emotionally in tune with him. Ms. Pierre has always worked from home as a music/literary/cultural promotor in Germany, so although the parties engaged nannies to assist with the care of Dominic from very early on, she was always there for him. Ms. Pierre’s description of Dominic’s early years was that she, Dominic and the nanny would typically have breakfast together, with Mr. Pierre usually eating earlier alone. After their breakfast, Mr. Pierre would leave for work and she would work in her home office. Ms. Pierre would take breaks for nursing Dominic for the first year and a half, and she would also lunch with the nanny and Dominic every day. Ms. Pierre’s working day would end around three or four in the afternoon, after which she would take over the care of Dominic for the rest of the evening. Ms. Pierre indicated that Dominic was not a good sleeper, so she shared a room with him from the beginning. According to Ms. Pierre, Mr. Pierre, who is a federal public servant, was working long hours at his office in Gatineau, and was very focused on the advancement of his career. When he was not at the office, he was also quite busy with the work on the matrimonial home. Mr. Pierre’s evidence reinforces this, as but for taking one month off when Dominic was born, he consistently stated he worked long hours, either at his job or on the house. Mr. Pierre described his impressive ascent through the public service from a six-month contract in 2002 to his current job as Director General of Trademark Industrial Design, indicating that at times he has slept in the office or worked 16 to 18-hour days.

21Ms. Pierre indicated that Mr. Pierre may have spent a bit of time with Dominic before leaving for work and a bit of time with him in the evening, if he got home early enough. Once Dominic commenced daycare and attending Madison Montessori, Mr. Pierre would also drive him there in the mornings. On the weekends, it was typical for Ms. Pierre, the nanny and Dominic to go and do an activity or outing and for Mr. Pierre to remain working on the matrimonial home. While they may have done something together from time to time, such as visit Mr. Pierre’s family in Montreal for a weekend, they spent little time as a family. Ms. Pierre indicated that in the summer, she and Dominic would visit her very close friend, Laura, in Nova Scotia for three to four weeks. Mr. Pierre would not accompany them.

22Ms. Pierre indicated that the relationship was not a happy one, and that she felt very belittled and controlled by Mr. Pierre. She gave examples of him telling her he did not like the way she dressed, did not like the deodorant she used, was repelled by her “pot belly” and stated that he did not speak to her for days on end if he was displeased with something she did, said or wore. By way of example, Ms. Pierre directed the court to an email she received from Mr. Pierre dated January 6, 2015 which was related to her not wanting to essentially lie to the Canada Revenue Agency by reducing her reported income after Dominic’s birth, as Mr. Pierre appeared to be suggesting.³ The email, in fact, begins with Mr. Pierre stating: “I have not said a word to you in a week.” This appears to support Ms. Pierre’s evidence that Mr. Pierre would give her the silent treatment if she either did something which displeased him or did not do something he thought she should. Indeed, Mr. Pierre belittled Ms. Pierre’s capacity and/or intentions throughout this email, which Ms. Pierre testified was typical of Mr. Pierre when trying to convince her of his point of view.

23Ms. Pierre stated that she went to a counsellor and received help for women who have suffered from emotional abuse. She learned to set boundaries, make sure she is safe, work through the abuse and know what to watch out for in the future. Ms. Pierre indicated that she was afraid of Mr. Pierre at the time of separation (December 2015) and at the time she commenced these proceedings (June 2016), but she is not afraid of him today.

24Ms. Pierre testified that she felt Mr. Pierre was not in Dominic’s life a lot prior to separation, and that Dominic was totally attached to her. However, she indicated that if separating “made him want to be a dad”, she was okay with that. It was for this reason that she agreed to a transition schedule which would get them to a 2/2/3 parenting regime, which was in place until Mr. Pierre sought to change it.

25Ms. Pierre testified that she noted that Dominic started to show signs of distress in kindergarten. He exhibited aggression and defiance, and threw tantrums to the point that she wanted him to see a psychologist. Ms. Pierre advised Mr. Pierre of her wish and asked for his consent. Mr. Pierre did not want Dominic to be alone with the psychologist or to take medication, conditions to which Ms. Pierre agreed. She was referred by her family physician, Dr. Holman to Dr. David Armstrong in Kemptville. Mr. Pierre did not agree that Dominic needed to see a psychologist and contacted Dr. Holman, who did not want to be in the middle of the parents’ disagreement, so her referral, although still valid, did not proceed on consent. Although delayed, ultimately, Dr. Armstrong did become involved, about which I will speak more later. Ms. Pierre also worked with a behaviour specialist, Tara Cummings. Ms. Pierre was of the view that between working with Dr. Armstrong, Ms. Cummings and the change in the access schedule as of Justice Audet’s order, which reduced the number of exchanges and backs and forth for Dominic, he was doing better. Ms. Pierre testified that Dominic has become better at discussing his feelings and emotions, but still gets frustrated.

26Mr. Pierre testified that post-separation, and particularly post-Justice Audet’s order, his parenting time with Dominic has been going well. He feels very close to Dominic and they have a good relationship. Mr. Pierre has been responsible for taking Dominic to the dentist and to his extracurricular activities of swimming and soccer (pre-pandemic). He is proud of Dominic and sees him as a very capable boy. Mr. Pierre’s view is that he is the one to provide structure for Dominic and consequences for his behaviours, as he describes Ms. Pierre as being too permissive and letting Dominic do what he wants. This difference in parenting styles was recognized by Ms. Pierre, Dominic’s teachers and Ms. Bennett of the Office of the Children’s Lawyer (“OCL”) as well, albeit without the same judgment attached.

27Ms. Pierre testified that it is a challenge to reach an agreement on anything with Mr. Pierre, be it on parenting decisions, child support or money owing for section 7 expenses, the sale of the matrimonial home (which she wanted from early 2016), equalization and post separation adjustments. One example which Ms. Pierre gave of Mr. Pierre’s rigidity was his insistence that she breached a provision in their March 24, 2016 parenting agreement which required the parents to not introduce Dominic to a new partner before advising the other parent of their intention to do so and discussing it with Dominic in a child-focused manner in advance. Over time post-separation, Ms. Pierre had become romantically involved with Steven McNeil, who was a contractor who had been working on the matrimonial home. Dominic, in fact, knew Mr. McNeil long before Ms. Pierre ever met him, as he had been doing work at 6325 Proven Line Road, where Mr. Pierre continued to live post-separation. Ms. Pierre only met him after an agreement to sell the home was reached in the spring of 2017. They first became friends and their relationship evolved to the point of becoming a couple in the summer of 2018, at which time she made the status of the relationship known to Mr. Pierre. Although Dominic was already comfortable with Mr. McNeil, with whom he was well acquainted, Mr. Pierre was of the view that she had not adhered to their agreement. Under the circumstances, Ms. Pierre did not think the provisions of the agreement were particularly applicable. Another example of Mr. Pierre’s rigidity, which was apparent even in his testimony at trial, was his insistence that he did not know where Dominic was taken on the date of separation, which turned out to mean he did not know the precise address of Jillian’s home, although clearly told by Ms. Pierre that she would be staying with Jillian.

28Ms. Pierre indicated, on the other hand, that pursuant to the agreement, she was to have video access to Dominic one evening a week while in the care of Mr. Pierre, and that the call rarely happened. Mr. Pierre blamed his non-compliance on unreliable video access, which Ms. Pierre found very hard to believe, given that she had run her business in Germany entirely over the internet while living in the matrimonial home pre-separation. One of the nannies who testified, Ms. Clara Scholz, also indicated that she had communicated regularly with family and friends in Germany via the internet from the matrimonial home. Mr. Pierre seemed, from Ms. Pierre’s perspective, to chose which provisions of the agreement were important and had to be adhered to and those which were not.

29Another parenting decision which became problematic was accessing Big Brothers/Big Sisters for Dominic, which had, in fact, been recommended by his resource teacher. For his Grade One school year, Mr. Pierre filled out the paperwork, spoke to the school Principal, Mrs. Prevost, and Dominic was involved in the program. However, when Ms. Pierre provided the forms to him for the Grade 2 school year, Mr. Pierre was opposed to it, citing the pandemic and the requirement for Dominic to have a young Black person as a mentor, something over which Ms. Pierre had no control, given that the school did the matching. The program was also being conducted virtually as a result of the pandemic. Although Dominic ultimately participated in the program, Mr. Pierre was upset with both Ms. Pierre and Mrs. Prevost from St. Cecilia School over how the issue was handled. He felt Ms. Pierre was dismissive of his concerns, while Ms. Pierre thought it was important for Dominic to have positive interactions with an older mentor. She also stated that Dominic loved the program and looked up to his Big Brothers/Big Sisters.

Dr. Armstrong

30With respect to the involvement of Dr. Armstrong with Dominic, this was only able to happen as a result of Justice Audet’s order of May 16, 2019, paragraph 3 of which provides: “The mother is to engage Dominic in counselling sessions with Dr. Armstrong without the father’s consent. The mother shall provide regular updates about Dominic’s counselling.” Paragraph 4 provided that Ms. Pierre would be allowed to be present for the first meeting between Dominic and his counsellor “but thereafter she shall not be present unless specifically required by Dominic’s counsellor.”

31Dr. Armstrong both testified and provided a report dated February 12, 2020. Dr. Armstrong has his PhD in clinical psychology, and has been registered with the college since 2012. He is increasingly providing counselling to children and adolescents, including for education planning purposes. Dr. Armstrong supervised Ms. Vergia Davidson, who provided nine 30-minute sessions of counselling to Dominic “with a goal to provide psychoeducation regarding anger management/temper.” The report indicates that in several areas of functioning, which include opposition/non-compliance, separation anxiety, mood/worry, and inattention, Ms. Pierre and Dominic’s teachers reported seeing more issues than Mr. Pierre. With respect to social anxiety, Ms. Pierre reported seeing more than Mr. Pierre and Dominic’s teacher, who both noted average levels.

32Overall, Dr. Armstrong found no mood, anxiety or behavioural disorders in Dominic. He provided some recommendations for the parents ranging from self-help (“parent-directed supports”) to teacher assists (“in-school accommodations and supports”) to clinical intervention (“comprehensive clinical approaches”). Based on his findings and report, Dr. Armstrong was not of the view that the latter was necessary at the time, though with monitoring of Dominic’s behaviours, might prove helpful in the future.

33Dr. Armstrong testified that overall, it was not uncommon for a child of Dominic’s age to have some of the difficulties he was having. With respect to the parents, Dr. Armstrong stated that based on Mr. Pierre’s reports of Dominic’s functioning, there “wasn’t as much opportunity of intervention.” He was also aware that Ms. Pierre and Dominic were working with Ms. Cummings, which he recognized may have been making a positive difference.

OCL Clinician

34In her May 16, 2019 order, on consent of the parties Justice Audet ordered that the OCL become involved “and prepare a comprehensive parenting assessment.” Ms. Darlene Bennett was assigned to the file on July 4, 2019 and prepared a report dated November 25, 2019. Ms. Bennett was employed for 22 years by the Department of National Defense in career education and counselling. She also had 13 years of experience as a Child Protection Worker, both in investigative and on-going work, and she spent three years with the Department of Justice in the War Crimes Unit. She also has her own practice as a counsellor, has done three years of crisis counselling, and has developed a “creative coping program” for children who have been exposed to domestic violence.

35In preparation of her report, Ms. Bennett reviewed documentation, including the parties’ pleadings, interviewed the parents, conducted observation visits with each parent, interviewed Dominic twice and reviewed collateral information. At the conclusion of her investigation, Ms. Bennett recommended the following:

• Mrs. Pierre to have sole custody/final decision-making authority of Dominic Pierre;

• Mr. Pierre may have access with Dominic every second weekend from Thursday after school to Monday morning before school;

• Mr. Pierre may have additional access if they are able to agree;

• Holiday parenting schedule to follow the March 2016 parenting agreement;

• In addition to the services offered through the school, Dominic to participate in outside therapy services to help him learn how to regulate his emotions and to develop coping strategies for same;

• Mrs. Pierre to participate in parenting education to improve her behavioural management skills;

• Mr. Pierre to participate in parenting education to help him achieve balance in his parenting skills and to learn flexibility; and,

• Mr. And Mrs. Pierre to consider utilizing a web-based communication tool such as ‘Our Family Wizard’ or ‘Two Houses’.

36Ms. Bennett testified that in coming to these conclusions, she considered several factors, including the parents’ inability to communicate effectively, the parents’ ability (or inability in the case of Mr. Pierre) to recognize Dominic’s (in particular, emotional) needs and the importance of Mr. Pierre’s role in Dominic’s life, particularly as it relates to access to Haitian culture.

37Ms. Bennett testified that while time with Mr. Pierre is very important to him, Dominic was clear in his preference to be with his mother. Ms. Bennett reported that Dominic expressed some negative things to her about his father, including that he was bad because “he didn’t let me cry”, was aware of the separation because “Daddy told him””, remembered dad yelling at he and Ms. Pierre when they played hide and seek, and recalled an occasion when dad threw a chair at a wall and cracked it, which he felt angry about. According to Ms. Bennett, Dominic did not want her to tell Mr. Pierre what he was telling her, and made a “shush” sign to her with his fingers. When Ms. Bennett reminded Dominic that she would be telling both of his parents about their conversation, he indicated that he wanted “to stay with my mom everyday.” I consider Dominic’s statements to Ms. Bennett to be admissible pursuant to the state of mind exception to the hearsay rule. Dominic is clearly affected by his parents’ separation, as well as their differing parenting styles, where Ms. Pierre is more permissive than Mr. Pierre. Ms. Bennett described this difference on page 16 of her report as:

Specifically, Mr. Pierre presents as a very analytical individual whose focus is on providing Dominic with opportunities which will help him achieve his full potential. In contrast, Mrs. Pierre presents as more physically nurturing, and more attuned to Dominic’s emotional needs. While it is not uncommon for adults to parent their children differently, Dominic’s former daycare teacher has stated that she directly attributes his behaviours to the differing parenting styles. In fact, Ms. Fraser said that this is causing a “huge, huge struggle” for Dominic whom she said is confused as he doesn’t know how to act when he is with each of his parents.

38Mr. Pierre denied preventing Dominic from crying and denied ever throwing a chair at a wall. Mr. Pierre, in fact, served a 19-page dispute to the OCL Report on December 30, 2019 pursuant to Rule 21 of the Family Law Rules. Mr. Pierre alleged that Ms. Bennett acted with bias by not interviewing two collaterals he had provided (Mr. Bechir Oueriemmi and Ms. Ingrid Feilingsdorf), not reaching out to personnel at St. Cecilia Catholic School or interviewing Dr. Armstrong and minimizing concerns about historical domestic violence, driving prohibition and mental health issues of Mr. MacNeil. Mr. Pierre, additionally, expressed that he was of the view that “Ms. Bennett acted with bias by not providing me with equal treatment and discriminated against me based on my race and ethnicity. She did not take into account my cultural heritage.”

39With respect to Ms. Feilingsdorf, who was the parties’ nanny from January to July of 2014, and visited a couple of times subsequently, Ms. Bennett indicated that her information was historical in nature and already provided in the parties’ pleadings/documentation. She did not feel interviewing her would add anything to the current investigation. Regarding Mr. Oueriemmi, Ms. Bennett did interview his wife, Ms. Melanson, and when on August 24, 2019 she advised Ms. Melanson that she wished to speak to her husband, Ms. Melanson advised Ms. Bennett that she spoke for both of them. She, therefore, did not pursue Mr. Oueriemmi any further.

40In regard to St. Cecilia, Ms. Bennett indicated that she had made an inquiry to the school and had received no response. Given that Dominic had only been in school 19 days by the time of her disclosure meeting with the parents, moreover, Ms. Bennett did not feel that it was crucial to speak with St. Cecilia personnel. She did, however, have an extensive telephone interview with Dominic’s teacher from Madison Montessori, where Dominic had attended for the two years prior. Ms. Bennett indicated that she sent a letter to Dr. Armstrong at the beginning of her investigation, but as his office had moved, it was returned to her much later (after her report was complete). She did, however, receive a copy of a progress report by Dr. Armstrong dated July 23, 2019, from Mr. Pierre, which she took into consideration when completing her report. In her testimony, Ms. Bennett noted that Dr. Armstrong had only had two meetings with Dominic prior to July 23, 2019 and that he was not noting any concerns with Dominic during sessions and not recommending further psychotherapy or intervention.

41With respect to Mr. MacNeil, Ms. Bennett noted that the domestic violence incident referred to was 14 or 15 years previous (2006), with no further involvement of that nature in police or CAS records. Similarly, Mr. MacNeil experienced a one-time mental health crisis which was described in hospital records as a “situational crisis” when he was transported to hospital. No further mental health issues were noted. In her observation visit, moreover, Ms. Bennett noted Dominic to have a very positive interaction with Mr. MacNeil and be very comfortable with him. She had no concerns about any risk presented by Mr. MacNeil. She also noted in her collateral information that Mr. MacNeil had an indefinite driving suspension as a result of a child support order.

42Ms. Bennett noted that neither party requested that the assessment be conducted in French or bilingually. She indicated that if one of them had, a bilingual assessor would have been assigned. Mr. Pierre did not alert her to any issue in this regard during the assessment. Additionally, Ms. Bennett indicated that she was very alert to the cultural context of the assessment, which she noted on page 7 of her report in relation to Mr. Pierre’s family history, page 10 in relation to Mr. Pierre’s exposure of Dominic to cultural experiences and in her discussion on access with Mr. Pierre on pages 18 and 19, wherein she notes that the parenting schedule that she is recommending would “not only allow Dominic to have fun time with his mother on the weekends but will also allow him an opportunity to spend more time with his extended paternal family members who reside in Montreal.” Ms. Bennett’s position is that Mr. Pierre’s Haitian background and culture was not just identified in her assessment, but specifically considered in her recommendations.

43On January 28, 2020, Ms. Bennett’s regional supervisor from the OCL, Mr. Phillip I. Subeck, responded to Mr. Pierre’s complaint indicating that it had been thoroughly reviewed and concluded: “We have determined that the report contained no factual errors nor has any additional information been put forward that would cause the Office of the Children’s Lawyer to change the recommendations of the report that was served and filed on November 28, 2019.”

Analysis

44Subsection 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order, and pursuant to subsection 16(2), when considering best interest factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. One of the factors to now be specifically considered by the court is the impact of family violence on “(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.”

45Subsection 16(4) outlines what factors must be taken into account in considering the impact of family violence and includes:

a. the nature, seriousness and frequency of the family violence and when it occurred;

b. whether there is a pattern of coercive and controlling behaviour in relation to a family member;

c. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

d. the physical, emotion and psychological harm or risk of harm to the child;

e. any compromise to the safety of the child or other family member;

f. whether the family violence causes the child or other family member to fear for their safety or for that of another person;

g. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child, and,

h. any other relevant factor.

46Although there is no evidence, including by admission of Ms. Pierre, that any physical violence was perpetrated upon her or Dominic, there is no doubt that Ms. Pierre perceived the relationship (including post-separation) to be one characterized by coercive and controlling behavior by Mr. Pierre, most particularly by the degree to which he belittled her, especially when she was not doing something he expected of her. As I have indicated above, this is reflected in some of the email exchanges between the parties, as well as in Mr. Pierre’s insistence that Ms. Pierre doesn’t understand the consequences of decisions/actions, particularly financial ones. Indeed, Ms. Bennett expressed concern about Mr. Pierre’s attitude towards Ms. Pierre as he suggested to her that Ms. Pierre does not understand “the complexity of things”.

47Ms. Pierre was also frightened by Mr. Pierre on at least two occasions, the night of the separation in December of 2015 and at the access exchange in June of 2016, so much so that she called the police both times. Mr. Pierre denies categorically that he yelled at, frightened, or threatened Ms. Pierre, and states that she was making false allegations against him to put herself in the role of a victim and to bolster her case. Mr. Pierre’s suggestion does not make any sense, however, in the context of what was actually occurring at the time the two calls were made. On the first occasion, very shortly after the incident, Ms. Pierre agreed to work quickly towards a 2/2/3 parenting schedule, and did so. The second incident occurred shortly after the parties entered into the March 2016 Parenting Agreement which contained shared custody and when Mr. Pierre’s parenting time was occurring exactly as agreed. There was, at the time, no case to bolster. Indeed, Ms. Pierre originally filed her application for the purpose of seeking a restraining order against Mr. Pierre on an urgent motion, only after, in the presence of Dominic, he had threatened to kill her. Post this incident, Ms. Pierre engaged in 26 sessions of counselling for domestic violence concerns up to April of 2019. The more likely explanation is that these events occurred as Ms. Pierre described them to have, and she had legitimate reasons to fear Mr. Pierre.

48Additionally, Mr. Pierre seemed completely incapable of understanding Ms. Bennett’s explanation that whether or not things had occurred exactly as Dominic described to her, he was telling her “his perception of his lived experience.” (Ms. Bennett’s words, with emphasis added). Ms. Bennett states as page 16 of her report:

In his personal interviews, Dominic made no disclosures that would suggest that he has been exposed to, or has an awareness of, parental threats of harm. However, Dominic reported having been negatively impacted by his father’s behaviors, expressed negative feelings about Mr. Pierre and has also presented information to suggest that he is fearful of his father’s reaction to things. This was evidenced not only by Dominic’s verbal statements to this clinician, but also by his physical presentation when speaking about an act of physical aggression by Mr. Pierre which Dominic reported that he had previously witnessed.

Moreover, Dominic has eluded to there being concerns with respect to how his parents respond when they are upset, although he has stated that he has never seen his mother get angry. This clinician was not able to obtain any further information from Dominic in terms of parental responses because he said that he didn’t want to get anybody in trouble. It should be noted that the negative information that Dominic did share about Mr. Pierre was shared reluctantly and that he (Dominic) worried about how his father would react to reading it.

49Whether or not Mr. Pierre accepts it, Dominic appears to have experienced some “emotional or psychological harm” in relation to him.

50Taking into consideration these factors, as I am directed by the Act to do, and taking into consideration the very difficult post-separation communication between the parties, I find that it is in the best interests of Dominic that his mother have sole-decision making authority over him. Although she is seen to baby Dominic at times, Ms. Pierre is also most emotionally in tune with him and is in the best position to make decisions for him. She has, additionally, engaged in parenting education as recommended by Ms. Bennett (by working with Ms. Cummings), while Mr. Pierre has not. Mr. Pierre will need to be consulted on major decisions; however, Ms. Pierre will have the sole authority to make them.

51With respect to Mr. Pierre’s parenting time, the confusion that has plagued Dominic since separation must be stopped. Although Mr. Pierre very clearly enjoys his time with Dominic and wants more, Dominic appears to struggle with it, and consistently expressed to Ms. Bennett wanting to be with his mother. The parenting styles of Ms. Pierre and Mr. Pierre are not only different, but diametrically opposed. Dominic is being required to navigate them, to his detriment.

52Section 16(1) of the Divorce Act requires me to take into consideration only the best interests of Dominic when making a parenting order. The factors to be considered are in Section 16(3), and include the child’s need for stability, the nature and strength of the relationship with each parent, the history of care, the child’s views and preferences the ability of the parents to communicate and the impact of family violence (as set out above). This is a case where Dominic requires one stable home with regular parenting time with his other parent. Ms. Bennett recommended that Mr. Pierre have parenting time every second weekend from Thursday after school to Monday morning at school. With this recommendation, I agree, except that I would extend it to Tuesday morning at school if Monday is a holiday or PD day. I would also add to it from Thursday after school to Friday morning on the weeks where Mr. Pierre does not have weekend access. This parenting regime will commence as of August 26, 2021 to be in place for the new school year. The holiday schedule will continue as per the March 24, 2016 agreement, but with the adjustment to Christmas access requested by Ms. Pierre in her Parenting Plan.

Issue #2 – What are the incomes of each of the parties for support purposes?

Positions of the Parties

53Ms. Pierre’s position is that Mr. Pierre should be paying child support, spousal support and his share of s.7 or extraordinary expenses based on his annual income as reported to the Canada Revenue Agency, less appropriate deductions.⁴ It is her further position that while her annual income can fluctuate, it typically ranges from about $40,000 to $60,000, and that her support obligations should be based on her actual income, less appropriate deductions.

54Mr. Pierre’s position is that Ms. Pierre’s income either is or should be much higher. He does not accept that her actual annual income is a reasonable amount upon which to base her obligations, or calculate his. He is, additionally, of the view that Ms. Pierre is intentionally underemployed and could be making much more applying her skills from her German business to a Canadian market.

The Evidence

55Mr. Pierre is a salaried employee of the Federal Public Service. His income is determinable as per his Line 150 (or now 15000) income on his tax returns and notices of assessment. His income for the years since separation is as follows:

• 2016 – $146,501;

• 2017 – $165,801;

• 2018 – $178,101.75;

• 2019 – $192,480.92; and,

• 2020 – $183,515.

56Ms. Pierre is self-employed in her solely owned business “Scout Promotion”, which she founded in 1999. The business, which ensured artists, musicians and bands got a presence on German television and radio evolved over the years to working with authors as well. Ms. Pierre started doing all the work for her company herself, but after her move to Canada in 2006, she required German employees to do some of the leg work in Germany. She now uses free lancers for that purpose, and, therefore, has some business expenses for them. Ms. Pierre’s company is paid in Euros into a Deutche bank account, and she also has a Scotiabank account in Canada. She is able to take her money out of the Deutche bank account in Canadian dollars, but mainly transfers it from her German account to her Scotiabank account in Canada. Ms. Pierre’s corporation is Canadian, and she files her Income Tax Returns in Canada. Besides a brief and modest career as a jazz performer under the name “Mistify”, she has no other business interests.

57Mr. Pierre attempted to convince the court that Ms. Pierre carries on other businesses, one with a Karin Hartmann and another with her brother, Martin Pott, however, the evidence presented did not support this. Letters were filed and made trial exhibits from both Ms. Hartmann and Mr. Pott, confirming their respective business relationships (or non-relationship, in the case of Mr. Pott) with Ms. Pierre.⁵ Despite this, and despite that Mr. Pierre has had disclosure of the these letters since 2016, and has provided no other evidence in support of his contention, Mr. Pierre continues to insist that Ms. Pierre is making some kind of undisclosed income from them. He also attempted to suggest that money belonging to Mr. MacNeil that was deposited into Ms. Pierre’s accounts somehow constituted income to her. Ms. Pierre testified that as Mr. MacNeil was having some financial difficulties at one point, she agreed to have checks made out to him deposited in her bank account and later provided to him in cash or by etransfer. Again, despite disclosure which clearly showed that any money coming into Ms. Pierre’s accounts for Mr. MacNeil just as promptly went out, Mr. Pierre continued to insist, including at trial that this money somehow constituted income to Ms. Pierre. Indeed, despite having been provided with voluminous disclosure by Ms. Pierre, including, all bank and income statements for both her Deutschebank and Scotiabank accounts from 2015 onwards, which do not support his contention, Mr. Pierre continues to assert that Ms. Pierre has income other than her declared income.

58Additionally, Ms. Pierre retained Jean-Charles Plante of RSM Canada Consulting LP to prepare a report on her income for support purposes for the years of 2016 to 2018, and his findings were that her income for 2016 was $34,000, $40,000 for 2017 and $0 for 2018.⁶ Mr. Plante testified that he calculated Ms. Pierre’s income in accordance with the Federal Child Support Guidelines (“FCSG”) and that he saw no red flags or irregularities, including no evidence of undeclared income. Mr. Pierre retained Jean-Claude Desnoyers to provide his own income report for Ms. Pierre for 2016 -2019⁷, who indicated that his process was the same as Mr. Desnoyers with three differences; he added back in accounting fees and legal fees which he assumed were incurred for obtaining support, but which Ms. Pierre was able to demonstrate were actually for her business, and he also added back in 20% of Ms. Pierre’s use of hydro and heat for her home business. Mr. Desnoyers concluded, based in part on the faulty assumptions regarding legal and accounting fees, were that Ms. Pierre’s income in 2016 was $52,000, $61,000 in 2017, $10,000 in 2018 and $45,000 in 2019.

59Moreover, while the parties were together, they engaged an investment firm, “Triple Wind” to provide financial advice. During the years 2013, 2014 and 2015, the “target salary” for Ms. Pierre with which Triple Wind worked for planning purposes for the couple (with the full knowledge and agreement of Mr. Pierre) was $40,000. Only after the parties separated did Mr. Pierre assert that Ms. Pierre either was making more, or ought to have been making more. There is no evidence before me which would support that Ms. Pierre was or is making more than is reported on her Canadian Income Tax Returns. Her Line 150 incomes since separation has been:

• 2016 – $49,704.28;

• 2017 – $56,662;

• 2018 – $12,172.56;

• 2019 – $60,591.39; and,

• 2020 – approximately $60,000.

60As can be seen, these are either close to or higher than what either Mr. Plante or Mr. Desnoyers found to be her income for support purposes.

61While Ms. Pierre testified that it was usual for her income to fluctuate somewhat over the years, 2018 was an atypical year as she changed her business model to focus primarily on authors. Here income has since rebounded to what she has historically typically made.

62The onus of proving that Ms. Pierre ought to have been or ought to be making more than she has or is making rests with Mr. Pierre. He has failed to meet that onus. Ms. Pierre has only a high school diploma, having never gone to university. To her benefit, she has social skills and a contact base that she has cultivated over the years with German TV editors, having approximately 850 contacts in the entertainment sector in Germany. As is indicated above, Ms. Pierre founded Scout Promotion in 1999. Her business was, therefore, functioning in Germany for nearly 10 years prior to her move to Canada. Even after her move to Canada, Ms. Pierre continued to work exclusively in the German market, to which her knowledge is solely applicable. She does not have similar contacts in the Canadian television market, and her business cannot readily either transition to or expand in Canada. Additionally, her hours of operation are dictated and/or limited by the time difference between Canada and Germany and Dominic’s needs. Ms. Pierre, moreover, adjusted the business in 2018 which was, in her view, necessary for it to remain viable, which it again is at the same level as prior years. I consequently dismiss Mr. Pierre’s claim that income should be imputed to Ms. Pierre on either the basis that she has unreported income or that she is voluntarily underemployed. I, thus, find that Ms. Pierre’s actual income is the appropriate one to use for support calculations. As a side note, I also find that it was excessive to have required any income report for an income as limited as Ms. Pierre’s, let alone two income reports.

Issue # 3 – What is the appropriate quantum of child support payable and by whom?

63A DivorceMate calculation⁸ reveals that once the appropriate deductions are done for both parties’ 2016 incomes, Mr. Pierre would pay to Ms. Pierre $988 per month in child support, while Ms. Pierre would pay to Mr. Pierre $258 per month, with the difference being $730 per month payable by Mr. Pierre. Spousal support ranges from $1,503 (low) to 1,922 (mid) to $2,301 (high) for “an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 4.5 years and a maximum duration of 16 years from the date of separation.”

64The same exercise for 2017⁹ reveals that Mr. Pierre would pay to Ms. Pierre $1,079 per month in child support, while Ms. Pierre would pay to Mr. Pierre $275 per month, with the difference being $804 per month payable by Mr. Pierre. Spousal support for 2017 ranges from $1,647 (low) to $2,068 (mid) to $2,488 (high) with the same range for duration.

65Using their actual incomes for 2018¹⁰, the results are that Mr. Pierre would pay to Ms. Pierre $1,117 per month in child support, while Ms. Pierre would pay to Mr. Pierre $0 per month, with the difference being $1,117 per month payable by Mr. Pierre. Spousal support for 2018 ranges from $2,650 (low) to $2,992 (mid) to $3,325 (high).

66In 2019¹¹, the exercise would result in Mr. Pierre paying to Ms. Pierre $1,338 per month in child support, while Ms. Pierre would pay to Mr. Pierre $348 per month, with the difference being $990 per month payable by Mr. Pierre. Spousal support for 2019 ranges from $2,152 (low) to $2,646 (mid) to $3,152 (high).

67Finally, in 2020¹² Mr. Pierre would pay to Ms. Pierre $1,317 per month in child support, while Ms. Pierre would pay to Mr. Pierre $507 per month, with the difference being $810 per month payable by Mr. Pierre. Spousal support for 2020 ranges from $1,453 (low) to $1,977 (mid) to $2,495(high).

68There will be an order, as set out below, that Mr. Pierre is to pay child support to Ms. Pierre as per these calculations based on their actual incomes during the periods in question.

69Commencing September 1, 2021, Mr. Pierre shall pay table support for one child to Ms. Pierre based on his 2020 income with appropriate deductions. As of the same date, Ms. Pierre’s child support obligation will cease.

Issue #4 – Is Ms. Pierre entitled to spousal support, and if so, in what quantum and for what duration?

Positions of the Parties

70Ms. Pierre claims spousal support on both a compensatory and non-compensatory basis. First, Ms. Pierre moved from Germany to be with Mr. Pierre. This required her to engage people in Germany to do parts of the work she previously did herself. This, in turn, created expenses for her which correspondingly reduced her own income.

71Second, Ms. Pierre states she was the primary parent for Dominic during the relationship which permitted Mr. Pierre to focus extensively on and advance his career. Ms. Pierre states that she continues to be available to Dominic at all times, and she remains his primary parent.

72Third, Ms. Pierre’s income has consistently been about one third of Mr. Pierre’s. She was dependent upon him during the marriage, and was disadvantaged by its’ breakdown.

73Mr. Pierre’s view is that Ms. Pierre has, and has always had, her own career and should be self-supporting. He is of the view that Ms. Pierre is not entitled to support and “can rely on her own resources for support”.

Analysis

74Ms. Pierre claims spousal support pursuant to Section 15.2 of the Divorce Act. Subsection (4) of Section 15.2 provides that where the court is making an order for spousal support, it is to take into consideration the condition, means, needs and other circumstances of the spouses, including the length of time they cohabitated, the functions they each performed during cohabitation and any agreement, order or arrangement they had relating to support. Subsection 15.2(6) provides that the objectives of an order for spousal support, interim or final, should:

a. Recognize any economic advantages or disadvantages to the spouses arising form 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 form 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.

75The first two considerations relate to compensatory claims, while the latter two relate to need. With respect to Ms. Pierre’s claim for spousal support on a compensatory basis, she did suffer an economic disadvantage by moving to Canada with Mr. Pierre. As is noted above, her income was impacted by the need to retain freelancers in Germany to do work which she previously did herself. This has caused her income, and ability to support herself, to be reduced.

76Additionally, the evidence, including Mr. Pierre’s, supports that during the relationship Mr. Pierre financially benefitted from Ms. Pierre’s primary, indeed almost exclusive, care of Dominic. Both parents’ evidence was that Mr. Pierre worked very long hours during the marriage. He also frequently travelled for his work. Mr. Pierre is very proud, and rightly so, of his precipitous rise through the ranks of the public service and what he has been able to accomplish for Canada. Mr. Pierre entered the “executive cadre” in 2005 and became the Director, Copyright & Industrial Design in 2013. In 2016, he become the Director General of Trademarks and in 2019, he was promoted to the Director General of Trademarks & Industrial Design. Mr. Pierre indicated that there have been times when he has slept in his office and that, even now, he can work up to 16 to 18-hour days when Dominic is not in his care. This is consistent with the evidence of the nannies and Ms. Pierre that Mr. Pierre’s focus was on his work and the advancement of his career. While his rise through the civil service has indeed been admirable, there is no question that it was, not in a small part, possible because of Ms. Pierre’s singular focus on the care of Dominic during the marriage, notwithstanding her own work, which she structured completely around Dominic’s timetable.

77Additionally, there is little doubt that Ms. Pierre has disproportionately suffered economic hardship as a result of the breakdown of the marriage. She benefited from the support of Mr. Pierre during the relationship. The disparity in their respective incomes made her a dependant of Mr. Pierre, and while disparate incomes alone do not necessarily determine entitlement, there is to be an effort to ensure that upon breakdown of the relationship both households have a standard of living that is as close to that which existed during the relationship as possible.

78On these facts, I find that Ms. Pierre is entitled to an award of spousal support on both compensatory and non-compensatory grounds from the date of separation. With respect to duration, this was a marriage of approximately nine years and three months, or of medium length. Taking into consideration the condition, means and needs of Ms. Pierre and Mr. Pierre, as well as the range of spousal support contemplated by the DivorceMate calculations, as noted above, I find that a duration of 11 years is reasonable. Mr. Pierre shall, therefore, be required to pay spousal support to Ms. Pierre for 10 years commencing January 1, 2016 and ending December 31, 2026.

79With respect to the quantum of spousal support, mid range support in each of the years outlined above leaves Mr. Pierre with a slightly higher percentage of the net disposable income (approximately 52% to 48%), which I find appropriate. Spousal support shall, therefore, be payable at the mid-range of the SSAG’s.

Previous Orders

80On November 16, 2018, Justice Sheard granted a temporary order on consent providing that commencing December 1, 2016, Mr. Pierre was to pay child support of $650 per month to Ms. Pierre, on a without prejudice basis. Mr. Pierre was to pay 70% of s. 7 expenses (including childcare) to Ms. Pierre’s 30%, also on a without prejudice basis.

81On March 21, 2017, Justice Doyle granted a further temporary order on without prejudice basis on consent that commencing April 1, 2017, Mr. Pierre was to pay child support of $585 per month to Ms. Pierre on an annual income to Ms. Pierre of $60,000 and to Mr. Pierre of $132,252. Special and extraordinary expenses were to be apportioned 62% to Mr. Pierre and 38% to Ms. Pierre. Justice Doyle’s order provided at paragraph 9 that retroactive section 7 expenses owed by Mr. Pierre for 2016 were fixed at $1,790 and to be paid from the proceeds of the sale of the matrimonial home. Thus, any adjustments for special and extraordinary expenses remaining are from January 1, 2017 onwards. Justice Doyle also ordered that commencing April 1, 2017, Mr. Pierre was to pay $1,153 per month in spousal support, being the mid-range on a with child support formula on the above-noted incomes. Child support, spousal support and contributions to s. 7 expenses were to be reviewed every July.

82On March 28, 2019, Justice MacEachern varied interim child support commencing April 1, 2018 to be $755 per month on his annual income (excluding RRSP income) and an income of $60,000 for Ms. Pierre. Justice MacEachern also varied interim spousal support to $1,780 per month effective April 1, 2018. She also provided that section 7 expenses were to be shared on an equal basis.

83Thus, pursuant to the above calculations, there are adjustments to be made to the amounts of child and spousal support payable by Mr. Pierre to Ms. Pierre, considering the amounts paid under the previous orders.

Section 7, Child Support and Spousal Support Arrears/Adjustments

84Ms. Pierre provided a chart outlining the “Expenses Paid or Should Have Been Paid by Mesmin”, at Trial Exhibit #12, which includes section 7 expenses, child support and spousal support, having regard to the quantum of child support and mid-range spousal support outlined in paragraphs 62 to 66 above and the temporary court orders outlined in paragraphs 78 to 81 above. The end result is:

• To December of 2020, Mr. Pierre paid $40,838 in child support, and ought to have paid $54,142, for an outstanding balance of $13,304. This includes $730 for December of 2015, which I am not inclined to order;

• To December of 2020, Mr. Pierre paid $20,048 as his contribution to section 7 expenses and ought to have paid $20,048, for an outstanding balance of $0; and,

• To December of 2020, Mr. Pierre paid $29,633 in spousal support and he ought to have paid $141,182, for an outstanding balance of $111,549. These sums do not take into consideration the tax treatment applicable to spousal support.

85His arguments with respect to Ms. Pierre’s entitlement to spousal support and for the imputation of income to her having been defeated, Mr. Pierre was not able to muster evidence which refuted these numbers. I find that Mr. Pierre owes these sums to Ms. Pierre, less the December 2015 child support payment and after the tax treatment for spousal support is considered, as set out in my order below.

Issue #5 – What is the equalization payable and by whom?

86By the time of the trial, the parties appeared to agree (although Mr. Pierre did not always) that an equalization payment is owing to Ms. Pierre by Mr. Pierre, however, they disagree on the amount of that payment.

87Ms. Pierre’s position in the Comparative Net Family Property Statement (“NFP”) filed by the parties¹³, was that Mr. Pierre owed her an equalization payment of $203,764.61, while Mr. Pierre’s position was that he owed one of $90,512.95.

88The difference between these two amounts were as a result of conflict over the assigned values of a number of items, as follows:

• The value of $10,000 of household contents to Mr. Pierre (page 3 -Assets);

• The value of Mr. Pierre’s Federal Public Service Pension. Ms. Pierre states it is $397,086, using a normal retirement age of 60, while Mr. Pierre attributes a value to it of $369,206 using a normal retirement age of 65 (page 6 - Assets);

• The value of a Limited Partnership Mr. Pierre has in “EQ2013” which Ms. Pierre says is worth $410,033 and Mr. Pierre says is worth $267,985.71 (page 6 -Assets);

• A $10,000 value Mr. Pierre attributes to Ms. Pierre’s business, Scout Promotion (page 8 – Assets);

• The inclusion of a 2015 income tax refund received by Ms. Pierre in the sum of $1,071.63 and by Mr. Pierre of $16,633 (page 8 – Assets);

• The value of the BMO mortgage on the matrimonial home of $205,277 for each according to Ms. Pierre, and $219,882.50 according to Mr. Pierre (page 9 – Debts);

• The existence and value of loans to Mr. Pierre by his sisters, Rolene Pierre and Erna Pierre (page 12 – Debts);

• The value of the notional income tax liability of Mr. Pierre on his pension, RRSP and LIRA (page 12 – Debts);

• The value of the debt of Mr. Pierre to SSP 2013 Lending Corp., which Ms. Pierre states is $266,121.05 and Mr. Pierre states is $276,867.84 (page 13 – Debt);

• The date of marriage value of Mr. Pierre’s bank account and RRSP, which Ms. Pierre identifies as $1,610.38 and $15,340.76 respectively, while Mr. Pierre gives a value of the RRSP only of $24,162.04 (page 13 -Date of Marriage Assets);

• The date of marriage value of Ms. Pierre’s LIRA of $7,210 (page 14 – Date of Marriage Assets); and,

• The value of $60,000 which Mr. Pierre assigns to Ms. Pierre in respect of a domestic contract (page 15 – Excluded Property).

89I will deal with each in turn. First, regarding the $10,000 worth of household items and goods, Ms. Pierre was of the view that this was a generous estimate on her part, given that she left behind a fully furnished matrimonial home, which included outdoor equipment such as a lawn tractor, chain saws, generator and garden furniture. Mr. Pierre suggested that Mr. MacNeil took some items, possibly as payment for work done, but not with his agreement. Mr. Pierre, in essence, accused Mr. MacNeil of stealing from him, though he appears not to have made any report to the police. Mr. Pierre’s evidence was that Mr. MacNeil last worked at the matrimonial home in August of 2017, and that he (Mr. Pierre) had, in fact, changed the code to enter the house sometime before that. On August 29, 2018, Mr. Pierre’s then counsel, Ms. McMurty on behalf of Ms. Crawford, wrote to Ms. Anders and demanded that Ms. Pierre return certain items “which her boyfriend Stephen MacNeil previously removed from the property when he was completing work required to list the property for sale; a Briggs and Stratton 10.000 kW generator and connection cord, a Domar PS421 chainsaw, and a Husqvarna 455 Rancher chainsaw.” Mr. Pierre provided no evidence of anything that transpired between August of 2017 and the August of 2018 letter, of any payment arrangement between him and Mr. MacNeil or of any requests he had made of Mr. MacNeil to return property unlawfully taken. He did not call Mr. MacNeil as a witness. Mr. Pierre’s evidence in this regard was exceedingly vague. Regardless, however, of what transpired between Mr. Pierre and Mr. MacNeil post-separation, the fact remains that at the valuation date, the items in question were in Mr. Pierre’s possession (and never Ms. Pierre’s), and he assigned no value to them in the comparative NFP statement. I find that Ms. Pierre’s evidence as to what was in Mr. Pierre’s possession at valuation date to be more credible, and her estimate of $10,000 to be reasonable.

90Second, in Van Delst (Hronowsky) v. Hronowsky, 2020 ONCA 329, the Court of Appeal of Ontario has emphatically concluded that the normal age of retirement for a Public Service Superannuation Act plan member for Family Law Value purposes is age 60. The Family Law Value of Mr. Pierre’s pension is, therefore, $397,086 as per the valuation report of Guy Martel dated August 3, 2020.¹⁴

91The third discrepancy, that of the value of a Limited Partnership Mr. Pierre has in “EQ2013”, will be dealt with below, along with the eleventh, his debt in relation thereto.

92Forth, Mr. Pierre never provided any convincing evidence as to the value of Scout Promotion being $10,000. He simply attributed a value to it. Ms. Pierre testified, on the other hand, that Scout Promotion is her, and without her, it not worth a penny. The business is comprised of Ms. Pierre’s knowledge and contacts, and is not capable of being sold to anyone. She indicated that her office is comprised of one laptop, an external monitor, one keyboard and one cupboard. Based on the above, I would value the contents of Ms. Pierre’s office at the date of separation at no more than $2,000.

93Fifth, Mr. Pierre’s Notice of Assessment dated June 6, 2016 notes that he was entitled to a refund of $16,642.41 for the taxation year of 2015.¹⁵ Ms. Pierre also received a Notice of Reassessment dated July 2, 2019, which indicated that she was entitled to a refund of $1,071.63 for the taxation year of 2015¹⁶. This was, thus, money properly owed to each of Mr. Pierre and Ms. Pierre as of the valuation date, and should be included in their respective NFP’s.

94Sixth, the remaining amount on the BMO mortgage on the matrimonial home at valuation date was $439,765.10, one half of which is $219,882.50. The matrimonial home was sold on August 31, 2018 for $722,500. The amount of the mortgage paid out at that time was $410,554.90, one half of which is $205,277.45. Ms. Pierre’s position is that the latter is the proper amount to be included in the NFP. However, the value of debts and liabilities to be included in the NFP are those on the valuation date. Therefore, the amount of $219,882.50 shall be included for each.

95Seventh, in the Comparative NFP, Mr. Pierre claimed two debts to his sisters, Rolene and Erna Pierre, in the sums of $20,854.64 each and $16,563 each respectively. Ms. Pierre agrees that there is a debt of $41,708 owing to Rolene Pierre, which she put entirely in Mr. Pierre’s column. Ms. Pierre disputes that any debt was owing to Erna Pierre on the valuation date. Mr. Pierre produced two documents in support of his position. ¹⁷ The first is a document signed by Ms. Pierre and Mr. Pierre on September 30, 2012 evincing a loan of $30,000 from Erna Pierre, which was to be paid with specified interest in the sum of $30,228 by January of 2013. It was accompanied by a copy of a cheque from Erna Pierre to Mesmin Pierre dated September 23, 2012 for $30,000, deposited into Mr. Pierre’s account on October 1, 2012.The second is a document signed by Ms. Pierre and Mr. Pierre on October 7, 2012 evincing a loan of $34,000 from Rolene Pierre, which was to be paid with specified interest in the sum of $34,282.88 by January of 2013. Accompanying it was a copy of a cheque from Rolene Pierre to Mesmin Pierre dated September 25, 2012 for $34,000, deposited into Mr. Pierre’s account on October 9, 2012. Mr. Pierre testified that he has been unable to pay his sisters back to date, but for a $3,500 payment to Erna, and the total sums of $41,708 and $33,126 still owing at valuation were the unpaid originally borrowed sums plus interest.

96Ms. Pierre’s evidence, however, is that although they signed the documents, no loan was ever received (or kept) from Erna Pierre. Her recollection is that around the same time that Erna Pierre agreed to loan Mr. and Ms. Pierre’s money, she needed to buy a new car, and the money was either returned to her at the time or paid back within a short period of time. Ms. Pierre submits that she is very forthright about accepting that Mr. Pierre has a debt to Rolene Pierre, in the full amount of $41,708. She submits further that she would have no reason not to be as forthright in relation to a debt to Erna Pierre if one actually existed. Additionally, in a January 18, 2014 (pre-separation) meeting with their financial advisors¹⁸, Mr. Pierre identified his debts as “1) unsecured LOC and 2) sister/secured LOC”. Further, in his first two Financial Statements filed in these proceedings sworn on May 31, 2016¹⁹ and August 19, 2016²⁰ respectively, when he was represented by counsel, Mr. Pierre indicated in his “Debts and Other Liabilities” section: “Loan from Mesmin’s sister”, “Joint to the parties (50%)”, with a valuation date value of $25,000 and a “today” value of $15,000, suggesting, contrary to his evidence at trial, that he had paid off $10,000 of the remaining loan by the end of May 2016. Only in his Financial Statement sworn a year later, on March 15, 2017, does a debt to Erna Pierre (identified in error as Stephanie Pierre on the statement) show up with a date of valuation value of $17,000 (Mr. Pierre’s share) and a “today” value of $20,052. Loans from both sisters continue to appear in later Financial Statements from Mr. Pierre, but the amounts are reversed with the higher amount being attributed to R. Pierre by his November 19, 2018 statement. Ms. Pierre’s evidence is that from September of 2012 to March of 2017, there was absolutely no mention of a loan from or owed to Erna.

97Although well aware that Ms. Pierre was contesting the validity of a debt to Erna Pierre, Mr. Pierre did not call her as a witness to confirm the existence of a such a loan, and that payment of some or all of it was outstanding in December of 2015. Given the contradictory evidence, and particularly Mr. Pierre’s own conflicting Financial Statements, as well as the details he provided to his financial planners in 2014, without hearing from Erna Pierre, I cannot conclude that a debt to her continued to exist at the date of valuation. Therefore, the Comparative NFP will include a debt to Rolene Pierre in the sum of $41,708. Although Ms. Pierre was willing, moreover, to have the full amount of the debt to Rolene Pierre registered on Mr. Pierre’s side of the ledger (to his sole benefit), it is in actual fact a shared debt, and will be entered as $20,854 each.

98Eighth, with respect to his pension, RRSP and LIRA, Mr. Pierre has chosen a notional tax rate of 26.9% while Ms. Pierre has chosen one for him of 24.7%. In a report dated July 24, 2017, Guy Martel noted that the former would be Mr. Pierre’s notional tax rate at a retirement age of 65, while the later would be his rate at a retirement age of 60. In Van Delst v. Hronowsky, 2021 ONSC 2353, I noted at paragraph 35 that the proposition that the normal retirement age of a PSSA plan member may travel with the pension valuation and not necessarily with the determination of disposition costs is supported by Knight v. Knight, 2018 ONSC 3294, wherein Justice Nelson indicated at paragraph 55 that “notional disposition costs may be deducted from a spouse’s net family property if there is satisfactory evidence of a likely disposition date and it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them.” (Underlining is original). Like Ms. Van Delst in that case, Mr. Pierre testified that he absolutely intends to work until age 65, and he submits that his notional tax rate at retirement should be as of age 65. I found in Van Delst that the wife’s notional tax rate at age 65 was acceptable despite that FLV was calculated on a normal retirement age of 60. However, I distinguish that case on the basis that the rate had already been used in my April 2019 judgment for other of the wife’s post-retirement assets and not overturned by the Court of Appeal, notwithstanding the ordered recalculation. Logically, however, if Mr. Martel has calculated the disposition rates based on the value of all of Mr. Pierre’s projected income at ages 60 and 65, the rate should correlate to those values. The notional disposition rate for Mr. Pierre’s assets in the Comparative NFP will, therefore, be 24.7%.

99The third and eleventh concerns outlined above relate to the same investment, Mr. Pierre’s investment in units in the EquiGenesis 2013 Preferred Investment LP. Ms. Pierre engaged Richard Evans of McCay Duff Valuations & Consulting Inc., who was qualified to give an expert opinion as to the fair market value of Mr. Pierre’s interest in this investment as of the valuation date. EquiGenesis 2013 Preferred Investment LP (“the investment”) is a very complex investment vehicle, or tax shelter, which is designed to reward the investor with significant tax savings, which are realized at the end of the investment. Mr. Evans, after setting out the nature of the partnership, described the basic scheme of the investment at page 3 of his report²¹ as follows:

A forward contract is a private and customized agreement that settles at the end of an agreement. The transaction date for the Forwards is June 15, 2023.

In general terms, buying forward allows the investor to take advantage of an anticipated future rise by locking up the commodity or security at a lower price now and then selling when prices rise. Depending on how buying forward is done, the contract to purchase the good or security can be sold to another party that s taking actual delivery of the underlying commodity or security. (Emphasis is original).

To finance the Business, the Partnership issued units of limited partnership interest (the “Units”), such as those owned by Mr. Mesmin Pierre.

100Mr. Pierre invested in seven “units” of the limited partnership interest. As of December 2, 2015, Mr. Pierre’s total cost per unit was $36,425, for a total price of $245,975.

101To finance the investment, Mr. Pierre receive a “Unit Loan” from SSP 2013 Lending Corp. (the “lender”) in the amount of $32,000 per unit, for a total initial loan of $224,000, with interest of approximately 9.25% in 2014, 8.15% for 2015 through 2019, and an estimated interest rate of 8.50% for 2020 through 2022. Mr. Evans indicated that as of the valuation date, the partnership loan balance was $266,121.

102At page 4 of his report, Mr. Evans concludes as follows:

The General Partner estimated the fair market value of the units held by Mr. Pierre as the lesser of the Notional Asset Value and the Actual Asset Value. As at Dec. 2, 2015, the Notional Asset Value ranged from $231,879 to $392,701 and the actual Asset Value was $267,985. The Actual Asset Value in the amount of $267,985 is off set by the partnership loan balance of $266,121, for a net Asset Value of $1,865. (Emphasis is original).

103Mr. Evans also determined that the present value of Mr. Pierre’s future income-tax savings as of December 2, 2015 was between a low value of $101,000 and a high value of $126,000. Mr. Evans calculated this based on the most advantageous (and most logical) anticipated outcome of the investment at its maturity date in 2023.

104Mr. Pierre disputes that there is any value that can be attributed to him as an asset at valuation date beyond the actual asset value of $267,985. He called Mr. Kenneth M. Gordon, the President of EquiGenesis Corporation, as a witness in support of this contention. Mr. Gordon did not prepare a report in advance of the trial, nor was he qualified as an expert witness. His role was limited to describing the tax shelter. Mr. Gordon indicated that he created the precursor to this tax structure in 2003 and perfected in in 2005. He described the complexity of the structure and indicated that there is no other like it in Canada. Mr. Gordon’s evidence was that there are only two points at which the investment can be valued, at the date of purchase and at the date of maturity. Indeed, his position was that the beauty of the structure is in the volatility of its portfolios and the fact that at no point prior to maturity can an accurate value be determined. While this may very well be the case for income tax purposes, the investment must, in my view, have a value at separation for NFP purposes. Indeed, Mr. Pierre will not only receive substantial future income tax savings (which is the whole point of the investment), but he also benefits from a reduction to his annual income for carrying charges, which in turn reduces his support payments. He cannot, in my view, benefit from both a reduced income due to the carrying charges of this investment and a zero-valuation date value for future tax savings.

105Mr. Pierre’s investment has a value, perhaps not for taxation purposes, but it has a value. I am prepared to accept the evidence of Mr. Evans as to that value being somewhere between $101,000 and $126,000 at valuation date. The medium is $113,500, and that sum will be added to the actual asset value of $267,985 of the EquiGenesis 2013 Preferred Investment LP at valuation date, for a total of $381,485. I also accept Mr. Evans’ evidence that as of the valuation date, the partnership loan balance was $266,121.

106Next, Ms. Pierre notes that the December 16, 2005 Brandes RRSP statement for Mr. Pierre’s account ending in 3001 showed it to have a value of $15,340.76 CDN. Mr. Pierre claims it to have been $24,162 at the date of marriage. Although the parties were married on September 15, 2006, or some nine months later, Mr. Pierre provided no documentary evidence to establish his date of marriage value. The onus of proving a date of marriage deduction is, of course, on the person claiming it. Having no other evidence of the date of marriage value of his RRSP, I rely on the best evidence available and set it at $15,340.76.

107Ms. Pierre also included $1,610.38 for a bank account owned by Mr. Pierre on the date of marriage, as well as a “Covington LIRA” account ending in 311 for $7,210.90, both of which Mr. Pierre did not include on his side of the ledger. These entries, of course, benefit Mr. Pierre, and given Ms. Pierre’s inclusion of them, they will remain.

108Finally, although Mr. Pierre had a “Marriage Contract” drafted in February of 2013²², which he signed, it was never agreed to nor signed by Ms. Pierre. It was very difficult to comprehend Mr. Pierre’s argument that he should have an exclusion of $60,000 based on a contract that was never actually entered into, and such exclusion will not be allowed.

109Accordingly, based on the values agreed to by the parties and my above findings, I calculate the Net Family Property as follows:

Assets on Valuation Date

Wife

Husband

6355 Proven Line Road, Richmond, Ontario

$361,250.00

$361,250.00

Household Items and Goods

$10,000.00

Vehicle

$17,000.00

$10,000.00

Jewellery

$3000.00

DeutscheBank*4710-01

$10,923.12

Scotiabank*9781

$8,639.14

DeutscheBank*4710

$2,110.26

Manulife Non-registered investment

$49,355.42

Manulife Non-registered investment*4710

$49,336.27

BMO Chequing*9605

$8,327.99

BMO Interest Chequing*5185

$3,089.08

BMO Premium rate savings*6607

$1,712.58

BMO Smart Saver*6607

$1,529.99

BMO USD*6607

$3,324.18

Manulife LIRA*0031

$7,040.23

Manulife RRSP*8777

$15,698.60

Manulife Non-registered investment*9097

$48,951.40

Manulife Non-registered investment*4925

$48,951.40

Pension

$397,086.00

Limited Partnership (EQ2013)

$381,485.00

Scout Promotion

$2,000.00

Income Tax Refund for 2015

$1,071.63

$16,633.00

TOTAL

$504,658.84

$1,315,079.45

Debts and Liabilities on Valuation Date

Wife

Husband

BMO Mortgage

$219,882.50

$219,882.50

BMO Unsecured LOC*1602

$28,070.50

$28,070.50

BMO Secured LOC*6190

$47,567.02

$47,567.02

BMO Secured LOC*5627

$10,419.23

$10,419.23

BMO Secured LOC*7637

$1,503.28

$1,503.28

Property taxes on MH

$4,762.17

$4,762.17

Personal loan from Rolene Pierre

$20,854.00

$20,854.00

Scotiabank Visa

$2,607.62

Manulife Investment loan*3761

$49,355.42

Manulife Investment loan*4710

$49,336.27

BMO Mastercard

$8,969.9

TD Personal LOC

$7,604.35

Manulife Investment loan*9097

$48,951.40

Manulife Investment loan*4925

$48,951.40

Notional cost of disposition on pension

$98,080.24

Notional cost of disposition on RRSP

$3,789.16

Notional cost of disposition on LIRA

$1,781.09

SSP 2013 Lending Corp.

$266,121.00

TOTAL

$434,358.01

$817,307.21

Assets on Marriage Date

Wife

Husband

Sparkasse Bremen chequing account

$833.17

Life Insurance Cash Surrender value

$26,682.10

Sparkasse Bremen Business account

$6,287.76

2001 Honda Civic

$10,225.00

Bank account

$1,610.38

Brandes RRSP*3001

$15,340.76

Covington LIRA*2311

$7,210.90

Severance Pay

$6,596.00

TOTAL Date of Marriage Assets

$33,803.03

$40,983.04

TOTAL Date of Marriage Debts and Liabilities

$0.00

$0.00

Excluded Property

Wife

Husband

Wedding ring

$3,000.00

USD Bank Account

$3,324.18

Total Value of Excluded Property

$3,000.00

$3,324.18

Net Value of Property on Valuation Date (Assets – Debts and Liabilities)

$67,327.83

$494,448.06

Net Value of Property on Marriage Date (Assets – Debts and Liabilities)

$33,803.03

$40,983.04

Net Family Property (NFP) (Net Value of Property on Valuation Date – Net Value of Property on Marriage Date)

$33,524.8

$453,465.02

Difference Between NFP

$419,940.22

Equalization Payment

$209,970.11

110Based on the above, I find that Mr. Pierre owes Ms. Pierre an equalization payment of $209,970.11. There are, however, some outstanding unpaid costs awards, which the parties have in the past determined would factor into the equalization calculation. Specifically, Ms. Pierre owes Mr. Pierre $1,700 in costs from Justice MacLeod’s order of July 26, 2016, and Mr. Pierre owes Ms. Pierre $2,600 in costs which he agreed to pay in an email dated April 2, 2019 in relation to Justice MacEachern’s order of March 28, 2019, as well as $3,000 in costs as per the order of Justice Audet dated May 16, 2019. Mr. Pierre, therefore, owes to Ms. Pierre the balance of $3,900 ($5,600 - $1,700). Mr. Pierre shall make an equalization payment to Ms. Pierre in the total sum of $213,870.11.

Issue #6 – What are the post-separation adjustments and arrears payable and by whom?

111There are a number of post separation expenses which require adjustment as a result of the trial.

Matrimonial Home

112The matrimonial home sold on August 31, 2018, notwithstanding that Ms. Pierre first asked that it be sold in February of 2016. Mr. Pierre continued to live in the home until its’ sale. Ms. Pierre rented a modest home at the time of separation for $1,200 per month, in which she continues to live. Mr. Pierre paid the carrying costs (but, seemingly, the property tax) of the home for most of the time between separation and the sale. Both parties paid for repairs to the home and improvements to the property readying it for sale. Ms. Pierre’s position is that if Mr. Pierre is seeking that she pay one half of the expenses of the home from separation to sale, then she is seeking that Mr. Pierre be required to pay occupation rent (which she estimates to be approximately $2,500 per month) for that same period.

113Ms. Pierre’s counsel provided a chart²³ setting out two scenarios. In the first is an “Occupation Rent Scenario” and the second is a “MP Covers House Expenses Scenario”. Ms. Pierre walked the court through all of the payments she made, with reference to invoices²⁴. She also accepted Mr. Pierre’s evidence that he actually paid $3,476 towards house repairs. The result is an underpayment by Mr. Pierre of $1,172.86 in the first scenario, and an underpayment by Mr. Pierre of $2,190.50 in the second. The difference is $1,017.64. Ms. Pierre’s position is that post-separation adjustments of expenses relating to the matrimonial home ought to be “a wash”.

114Mr. Pierre does not really take issue with the sums contained in the charts. He does, however, take issue with Ms. Pierre not wanting to share in the expense of a default judgment dated December 27, 2017 made against him by 1760404 Ontario Inc. for the sum of $15,781.75.²⁵ By email dated January 16, 2018²⁶, Mr. Gadient for the Plaintiff made it clear to Ms. Pierre that the judgment was solely against Mr. Pierre and not her. Ms. Pierre evidence, moreover, is that this was for work done post-separation and about which she was never consulted and to which she never agreed. However, Mr. Pierre’s evidence is that the work done which resulted in this default judgment was for the clearing of trees, grading services and provision of fill material which was required for the property to be up to grade, and to which Ms. Pierre would have already provided her agreement pre-separation. I find that Ms. Pierre ought to share in this expense. In essence, she has done so already, as the balance was paid from the sale of the matrimonial home due to their being a lien on the house. I find that she is not entitled to recover one half of that amount.

115Based largely on Mr. Pierre’s email communication to Ms. Pierre dated February 16, 2016, in which he indicated that he wanted to keep the matrimonial home and stated: “I could pay the current mortgage on my own and we could agree to an arrangement in the meantime”, and based on the fact that he did stay in the matrimonial home until it sold, I adopt the second scenario presented by Ms. Pierre, and I find that post-separation adjustment expenses are indeed “a wash”; neither party shall owe the other anything for same.

BMO Line of Credit

116Ms. Pierre seeks an additional adjustment of $10,000 to be paid to her in relation to the BMO Line of Credit*602 (“LOC”), as well as some medical insurance costs. The value of the LOC at separation was $56,141. Ms. Pierre accepts that she is responsible for one half of that amount. Therefore, she placed $28,070.50 on each of her and Mr. Pierre’s side of the ledger on the Comparative NFP. However, her evidence is that Mr. Pierre continued to use the LOC post-separation, while she did not.

117On March 12, 2017, Justice Doyle granted an order on consent which required Ms. Pierre to pay to Mr. Pierre $561.41 per month towards this debt commencing April 1, 2017, being one half of the minimum monthly payment of $1,122.82 as of the date of separation. Ms. Pierre paid this sum to Mr. Pierre monthly from April 1, 2017 to August 1, 2018, when the house sold, and the LOC was paid off in from the proceeds of sale. She, thus, made 16 payments of $561.41 to Mr. Pierre, for a total of $8,982.56, pursuant to the order of Justice Doyle.

118Additionally, on January 21, 2019, the parties entered into Minutes of Settlement in which the parties agreed that $50,000 from the proceeds of the sale of the matrimonial home then being held in trust would be paid to the BMO LOC*1602. Ms. Pierre agreed to pay a further $3,070.50 on the outstanding balance of $6141.

119Ms. Pierre, thus, ultimately paid $25,000 (1/2 of $50,000) + $8,982.56 (16 payments of $561.41) + $3,070.50 (as per the Minutes of Settlement), for a total of $37.053.06 on her obligation of only $28,070.50. Mr. Pierre, therefore, owes Ms. Pierre the difference between these two sums, which is $8,982.56.

120The remainder of the approximate $10,000 which Ms. Pierre seeks from Mr. Pierre relates to two health insurance claims for which she did not receive reimbursement. Ms. Pierre indicated that she did not have direct access to Dominic’s health coverage through Mr. Pierre. Rather, she would have to pay for the service required and then fill out a form for SunLife and send the completed form and copies of the receipts to Mr. Pierre for him to submit the claim. Ms. Pierre testified that on two occasions for which she never received reimbursement, she did just that. The first was for $293.61 which she requested by email dated June 7, 2017²⁷ and the second was for $1,817.56 which she requested by email dated August 1, 2020²⁸. Mr. Pierre did not provide evidence as to whether he submitted the forms or whether the claims were paid in full by SunLife. Normally, parents would be required to pay anything that was not covered by medical insurance proportionate to their annual incomes. However, given that the court did not receive evidence as to any portion of these claims not being covered, I can only assume they were covered in full. Therefore, Ms. Pierre should have received reimbursement from Mr. Pierre for her out of pocket costs.

121Mr. Pierre, therefore, owes Ms. Pierre $11,093.73 as post-separation adjustments relating to BMO LOC*602 and the two medical insurance claims outlined above.

Order

122For all of the above reasons, there shall be a final order as follows:

Pursuant to the Divorce Act

1. Divorce is granted.

Parenting

2. The Applicant Mother (the “Mother”) shall have sole decision-making authority over the child, Dominic Alexander Pierre, born June 5, 2013 (“Dominic” or the “child”) in relation to:

a. Major non-emergency health care;

b. Education;

c. Religion; and

d. Extracurricular activities.

3. The Mother shall inform and consult with the Respondent Father (the “Father”) prior to making a decision; however, if the parties are unable to agree, the Mother shall make the final decision.

4. Dominic shall reside primarily with the Mother.

5. The parent residing with Dominic at the relevant time will make the daily decisions affecting his welfare.

6. If Dominic requires emergency medical care while with one parent, that parent will promptly notify the other of the emergency.

7. Both the Mother and Father may make inquiries and be given information by Dominic’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with Dominic. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties shall cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.

8. The Father shall exercise parenting time with Dominic in accordance with the following schedule:

a. Commencing August 26, 2021, on alternating weekends from pick-up from school on Thursday afternoon until his return to school on Monday morning. In the event that the Father’s parenting time falls on a long weekend, such access shall be extended to include the holiday Monday.

b. Commencing September 2, 2021, every second Thursday afternoon from pick-up from school until his return to school on Friday morning (or on the weeks when the Father is not scheduled to have the weekend).

c. On holidays pursuant to the parties’ current holiday schedule as outlined below; and

d. Any additional parenting time that may be agreed upon by the parties on an ad-hoc, case-by-case basis.

9. Holiday Schedule

a. Holiday Long Weekends

i. Unless otherwise agreed, the parties will follow the regular schedule for all long weekend holidays.

b. Canada Day

i. The parties will follow the regular schedule for Canada Day.

c. Mother’s Day

i. On Mother’s Day weekend, Dominic shall reside with the Mother until Monday morning, when the regular schedule will resume.

d. Father’s Day

i. On Father’s Day weekend, if Dominic is not otherwise scheduled to be with the Father, Dominic will reside with the Father on Saturday at 9:30 a.m. until his return to school Monday morning, when the regular schedule will resume.

e. Summer Vacation

i. Dominic shall reside with each party for two weeks, consecutive or non-consecutive, during his school Summer Vacation. The parties shall advise each other by April 1^st of their chosen weeks, with the Father to have first choice in odd-numbered years, and the Mother to have first choice in even-numbered years.

ii. In making plans, each party will take into account Dominic’s camp and other scheduled activities.

f. Christmas and New Year Holidays

i. Dominic shall reside with the parties equally during the holidays (from after school on Friday until the return to school). In even years, the Father’s parenting time shall begin on December 24 at 6 p.m. for a period of 7 days. In odd years, the Father’s parenting time shall begin on December 25 at noon for a period of 7 days.

g. Birthdays

i. Dominic shall spend his birthday in accordance with the regular schedule, except that the parent with whom Dominic is not residing on his birthday shall be able to spend at least one hour with him, to be arranged between the parties.

h. Additional Holidays

i. Either party may request the other party’s consent for Dominic to travel with that party, in addition to the holiday schedule set out above. The requesting party shall make the request to the other party at least thirty (30) days in advance, and shall provide the other party with all travel relevant travel information, including, but not limited to:

ii. A detailed itinerary at least 14 days before the planned trip commences, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Dominic during the trip.

Communication Between the Parties

10. The parties shall communicate about Dominic through Our Family Wizard. Each party will respond promptly to the other within forty-eight (48) hours. All communications shall be brief, respectful, related solely to Dominic, with no reference to either of the parties or their activities. Absent an emergency, the parties shall not message each other more than twice per day.

11. The parties shall share all documents pertaining to Dominic by scanning the document or taking a picture of it on their phone and then sending it to the other parent by Our Family Wizard.

12. Each party shall use Our Family Wizard to report to the other in a timely fashion any upcoming appointments including medical and dental, or any reports or referrals received on behalf of the children.

Child Support

13. Commencing on January 1, 2016, the Father shall pay to the Mother child support of $988 per month and the Mother shall pay to the Father $258 per month, resulting in a set off amount to be paid by the Father of $730 per month on his annual income of $146,501 and her annual income of $49,704.28. In 2016, the Father paid to the Mother $650 in child support and ought to have paid $8,760, resulting in an underpayment of $8,110.

14. Commencing on January 1, 2017, the Father shall pay to the Mother child support of $1,079 per month and the Mother shall pay to the Father $275 per month, resulting in a set off amount to be paid by the Father of $804 per month on his annual income of $165,801 and her annual income of $56,662. In 2012, the Father paid to the Mother $6,703 in child support and ought to have paid $9,648, resulting in an underpayment of $2,945.

15. Commencing on January 1, 2018, the Father shall pay to the Mother child support of $1,117 per month and the Mother shall pay to the Father $0 per month, resulting in a set off amount to be paid by the Father of $1,117 per month on his annual income of $178,101.75 and her annual income of $12,172.56. In 2018, the Father paid to the Mother $15,875 in child support and ought to have paid $13,404, resulting in an overpayment of $2,471.

16. Commencing on January 1, 2019, the Father shall pay to the Mother child support of $1,338 per month and the Mother shall pay to the Father $348 per month, resulting in a set off amount to be paid by the Father of $990 per month on his annual income of $192,480.92 and her annual income of $60,591.39. In 2019, the Father paid to the Mother $8,550 in child support and ought to have paid $11,880, resulting in an underpayment of $3,330.

17. Commencing on January 1, 2020, the Father shall pay to the Mother child support of $1,317 per month and the Mother shall pay to the Father $507 per month, resulting in a set off amount to be paid by the Father of $810 per month on his annual income of $183,515 and her annual income of $60,000. In 2020, the Father paid to the Mother $9,060 in child support and ought to have paid $9,720, resulting in an underpayment of $660.

18. Child support arrears from January 1, 2016 to December 31, 2020 are set at $12,574 ($8,110 + $2,945 - $2,472 + $3,330 + $660). The Father shall pay that amount to the Mother within 30 days of this order.

19. Commencing on January 1, 2021, the Father shall pay to the Mother child support of $1,317 per month and the Mother shall pay to the Father $507 per month, resulting in a set off amount to be paid by the Father of $810 per month on his annual income of $183,515 and her annual income of $60,000.

20. Commencing on September 1, 2021, the Father shall pay to the Mother child support of $1,317 per month on his annual income of $183,515.

21. As of August 31, 2021, the mother’s child support obligation ceases.

Special or Extraordinary Expenses

22. Commencing January 1, 2021, the Father and the Mother shall contribute to special or extraordinary expenses as defined by section 7 of the FCSG’s proportionate to their respective annual incomes.

23. Each party will pay his or her proportionate share of the special expense to the party who incurred the expenses within 10 days of receiving proof of the expense.

24. The parties will only contribute to Dominic’s special or extraordinary expenses if they consent to the expenses in advance, in writing. Email is sufficient for this purpose. Neither party will unreasonably withhold consent.

25. The Father will maintain Dominic on his medical, extended health and dental coverage through his employment for as long as it is available to him. The Father will also maintain the Mother as a beneficiary of his plan for as long as the Mother continues to qualify. The Mother acknowledges that, if a divorce takes effect, she will no longer qualify for coverage under the Father’s plan. The Father shall advise the Mother of any change in his medical, extended health and dental coverage.

a. The Mother will provide all receipts to the Father by e-mail. If original documents are required, they can be placed with Dominic’s belongings.

b. If the Father is in receipt of a refund cheque for a medical or dental expense incurred by the Mother, either for herself or for Dominic, the Father shall endorse the cheque and provide same to the Mother within 7 days of receipt. If the funds are deposited directly in his bank account, he shall transfer the funds electronically to the Mother within 7 days of receipt.

c. Medical expenses for Dominic not covered by the Father’s extended health insurance are special or extraordinary expenses and will be paid according to the applicable special or extraordinary expense sections above.

Spousal Support

26. The Mother is entitled to both compensatory and non-compensatory spousal support.

27. Commencing January 1, 2016, the Father shall pay to the Mother $1,922 per month in spousal support, being mid-range support on his annual income of $146,501 and her annual income of $49,704.28. In 2016, the Father paid to the Mother $0 in spousal support and ought to have paid $23,064, resulting in an underpayment of $23,064. Prior to the final order being made, the parties shall prepare a DivorceMate calculation of the mid-point of the after tax cost/benefit of a lump sum payment of $23,064, which amount the Father shall be required to pay to the Mother within six months of this order.

28. Commencing January 1, 2017, the Father shall pay to the Mother $2,068 per month in spousal support, being mid-range support on his annual income of $165,801 and her annual income of $56,662. In 2017, the Father paid to the Mother $1,153 in spousal support and ought to have paid $24,816. Prior to the final order being made, the parties shall prepare a DivorceMate calculation of the mid-point of the after-tax cost/benefit of a lump sum payment of $24,816, which amount the Father shall be required to pay to the Mother within six months of this order.

29. Commencing January 1, 2018, the Father shall pay to the Mother $2,992 per month in spousal support, being mid-range support on his annual income of $178,101.75 and her annual income of $12,172.56. In 2018, the Father paid to the Mother $0 in spousal support and ought to have paid $35,904. Prior to the final order being made, the parties shall prepare a DivorceMate calculation of the mid-point of the after-tax cost/benefit of a lump sum payment of $35,904, which amount the Father shall be required to pay to the Mother within six months of this order.

30. Commencing January 1, 2019, the Father shall pay to the Mother $2,646 per month in spousal support, being mid-range support on his annual income of $192,480.92 and her annual income of $60,591.39. In 2019, the Father paid to the Mother $16,020 in spousal support and ought to have paid $31,752. Prior to the final order being made, the parties shall prepare a DivorceMate calculation of the mid-point of the after-tax cost/benefit of a lump sum payment of $31,752, which amount the Father shall be required to pay to the Mother within six months of this order.

31. Commencing January 1, 2020, and continuing until August 31, 2021, the Father shall pay to the Mother $1,977 per month in spousal support, being mid-range support on his annual income of $183,515 and her annual income of $60,000. These spousal support payments will be taxable to the Mother and tax deductible to the Father. In 2020, the Father paid to the Mother $12,460 in spousal support and ought to have paid $23,724, resulting in an underpayment of $11,264. The Father shall pay to the Mother that sum within 30 days of this order.

32. If there is any overpayment or underpayment of spousal support for the months of January through August of 2021 based on paragraph 30 above, the overpayment or underpayment shall be paid by the party owing it within 30 days of this order.

33. Commencing September 1, 2021, spousal support shall be adjusted to mid-range on a with child support formula which reflects the change in parenting time and child support as a result of this order, based on the Father and the Mother’s annual incomes for 2020. Prior to the Final Order being made, the parties shall prepare a DivorceMate calculation setting out the appropriate amounts of spousal support payable based on those incomes. These spousal support payments will be taxable to the Mother and tax deductible to the Father.

34. If, after DivorceMate calculations have been prepared, there is any dispute between the parties as to the appropriate amounts of support payable pursuant to paragraphs 26, 27, 28, 29, 31and 32 above, a further appearance before me may be arranged through the office of the Trial Coordinator.

35. The support payments shall be enforceable by the Family Responsibility Office.

36. The parties shall exchange their income tax returns and notices of assessment by July 1 of every year, and child support, spousal support and proportionate section 7 contributions shall be adjusted in accordance with the Federal Child Support Guidelines and Spousal Support Advisory Guidelines based on the parties’ prior year’s income. The new amount of support will be paid effective September 1 of each year.

Pursuant to the Family Law Act

Equalization of the Net Family Property

37. The Father shall make a payment to the Mother of $213,870.11 to be paid by way of a pension transfer from the Father’s pension to an account of the Mother’s designation. The Father shall make the application to rollover these funds within 30 days from the date of this Order. If this amount exceeds the maximum transferable amount (“MTA”), then the MTA shall be transferred, and the balance owing shall be paid to the Mother within 30 days of the transfer. The actual amount to be rolled over from the Father to the Mother shall grossed up for tax by 21%.

Post Separation Expenses

38. The Father shall pay to the Mother the sum of $11,093.73 (BMO Line of credit overpayment + Insurance refunds) within 30 days of this order.

39. The Father shall immediately have the Mother removed from the joint BMO line of credit ending in 602. If he is unable to remove the Mother from the joint line of credit, the account shall be closed within 30 days of this order.

40. There shall be pre-judgment interest post-judgment interest as set out in the Courts of Justice Act.

Costs

41. Ms. Pierre is clearly the more successful party in this matter, and is entitled to an award of costs. Failing agreement by the parties by September 30, 2021 as to the liability for costs of this Trial, they will make written submissions of no more than three, double-spaced, 12-font pages, along with copies of their Bills of Costs and Offers to Settle, to me at intervals of 10 days and I will make an order.

Footnotes

1. 1Trial Exhibit #56.
2. 2Minutes of Settlement and Temporary Order of Justice MacLeod dated July 26, 2016.
3. 3Trial Exhibit #1, Email from Mesmin Pierre to Stephanie Pierre dated January 6, 2015.
4. 4These include child care expenses and carrying charges and interest expenses for both, and other adjustments for Mr. Pierre.
5. 5Trial Exhibit #32, Letter from Karin Hartman dated and Trial Exhibit #33, Letter from Martin Pott dated June 17, 2006.
6. 6Trial Exhibit #79, Income Report for Stephanie Pierre dated November 20, 2020.
7. 7Trial Exhibit #141, income Report for Stephanie Pierre dated December 17, 2020.
8. 8Trial Exhibit #41.
9. 9Trial Exhibit #44.
10. 10Trial Exhibit #47.
11. 11Trial Exhibit #50.
12. 12Trial Exhibit #51.
13. 13Trial Exhibit #9.
14. 14Trial Exhibit #10.
15. 15Trial Exhibit #75.
16. 16Trial Exhibit #74.
17. 17Trial Exhibit #80.
18. 18Trial Exhibit #35.
19. 19Trial Exhibit #104.
20. 20Trial Exhibit #105.
21. 21Trial Exhibit #78, Report of McCay Duff Re: Valuation of Mr. Pierre’s Investment in the Units of the EquiGenesis 2013 Preferred Investment LP dated January 19, 2021.
22. 22Trial Exhibit #97.
23. 23Trial Exhibit #12.
24. 24Trial Exhibit #’s 22 to 25 and 27.
25. 25Trial Exhibit #19.
26. 26Trial Exhibit #76.
27. 27Trial Exhibit#30.
28. 28Trial Exhibit #31.