COURT FILE NO.: FC-16-1046

DATE: 2021/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Switzer

Applicant

– and –

Colleen Switzer

Respondent

Self-Represented

Eric Letts, for the Respondent

HEARD: May 10, 11, 13, 14, 17, 18, 19, 20, 21, 25, 26, 27, 28 and June 1, 2021

amended REASONS FOR judgment

The text of the original Reasons for Judgment was amended on October 12, 2021 and the description of the amendment is appended.

Shelston, J.

OVERVIEW

[1] These parties started living together in December 2009, married on September 11, 2010, had their first child in 2012, twins in 2013 and separated in August 2014. Litigation started in May 2016 and the matter finally went to trial in May 2021. The only witnesses during this trial were the parties.

[2] The issues for the trial included which parent would make the major decisions for the children, what parenting arrangement was in the best interests of the children, child support, Section 7 expenses, spousal support, security for spousal support, equalization of the net family property, postseparation adjustments and costs.

BACKGROUND

[3] The applicant was called to the Ontario Bar in 2002. From 2002 to 2009, he developed a career in litigation. In 2009, he joined the firm of Flaherty Dow Elliott McCarthy LLP (“Flaherty LLP”) as an employee lawyer and opened their Ottawa office. On January 1, 2012, he became a partner. On May 26, 2017, the applicant ceased being a partner. On May 29, 2017, the applicant opened Switzer Professional Corporation (SPC) which he continues to operate today under the name Switzer Litigation.

[4] The respondent completed a degree in business administration at Algonquin College. From October 2007 to January 2016, the respondent worked for Lockheed Martin. She went on maternity leave before Mathew’s birth returning to work in December 2014 and was terminated in January 2016 for various reasons including because she missed work as a result of taking care of the three children and various illnesses that arose.

[5] The respondent received a severance package and applied for other jobs. She found employment in September 2016 as a bookkeeper but was terminated on February 1, 2018. Her employer indicated that one of the reasons for termination was that the number of absences had been too high which the respondent testified were related to taking care of the children when they were sick. The respondent made efforts to find employment but was unsuccessful and she was required to seek and receive social assistance in 2018. On August 18, 2018, she found employment as a financial manager on a part-time basis. She became a full-time employee in October 2020, with benefits and very flexible hours of work with an annual income of $50,000.

[6] The parties met in June 2009. The relationship quickly became serious and by December 17, 2009, the parties moved into a home purchased by the applicant, in his name alone, at 25 Maravista Drive in Ottawa. The applicant financed the down payment and was the sole mortgagor of this home. The parties married on September 11, 2010.

[7] In 2011, the respondent became pregnant with the parties’ first child, Matthew, who was born in 2012. In the winter of 2013, the respondent became pregnant with twins. The parties agreed that they needed a bigger house and on August 1, 2013, the parties purchased, as joint tenants, the matrimonial home in Richmond, Ontario. The twins, Charlotte and Patrick, were born in 2013. After the birth of the twins, the respondent was the primary caregiver of the children as she was home on maternity leave.

[8] By early August 2014, the parties’ relationship was strained. On August 12, 2014, the respondent advised the applicant that the marriage was over, that she had retained a lawyer and that she wanted him to leave the matrimonial home. The applicant was shocked and taken by surprise. From August 2014 to early 2015, the applicant resided at his parent’s home. In early 2015, the applicant rented a furnished apartment in downtown Ottawa while the respondent remained in the matrimonial home with the children. In September 2017, the respondent advised the applicant that she intended to vacate the matrimonial home. On December 1, 2017, the applicant moved back into the matrimonial home in Richmond.

[9] On December 8, 2017, the respondent moved out of the matrimonial home to a rental accommodation in Richmond, Ontario. She remained there until February 2020, when she was evicted and moved into her parent’s three-bedroom townhouse in the Barrhaven area of Ottawa. Since that time, the respondent and the children sleep in one bedroom, in two bunk beds. Since December 8, 2017, the applicant resides in the matrimonial home which is a 3500 square foot single family home with each child having their own bedroom with furniture.

LITIGATION HISTORY

[10] On May 16, 2016, the applicant filed an application seeking various claims for relief including joint custody of the children, a permanent parenting schedule, interim and permanent child support and spousal support, equalization of the net family property and sale of the matrimonial home.

[11] On June 13, 2016, the respondent filed an answer where she claimed various claims for relief including joint custody, a parenting schedule, child and spousal support, an equalization of the net family property, an advance on the equalization payment and costs.

[12] On June 28, 2016, the parties entered into an Interim and Without Prejudice Partial Separation Agreement (“the Partial Separation Agreement”). The parties agreed to certain terms including the following terms:

2. Child Support

2.1 From July 1, 2015, to June 1, 2016, Michael paid to Colleen interim child support of $6571 per month for Matthew, Charlotte and Patrick.

2.2 Starting on July 1, 2016, and on the first of each month until further agreement of the parties or Court Order, Michael will pay to Colleen interim child support of $7567.04 Matthew, Charlotte and Patrick.

2.3 Starting on July 1, 2015, and on the first of each month until the last day that Colleen attended work at Lockheed Martin Canada, and until a further agreement of the parties or court order, Michael shall pay to Colleen the amount of $1567.80 for his share of child care expenses. Michael shall be entitled to claim 67% and Colleen shall be entitled to claim 33% of the maximum childcare deduction for the three children on their taxes based on their pro rata contributions to the expense. Michael’s payments towards childcare are made without prejudice to either party’s claim as to what the appropriate amount of the childcare expense actually is.

2.4 Michael shall pay 71% and Colleen shall pay 29% of the children’s special or extraordinary expenses pursuant to section 7 of the Child Support Guidelines. Neither party shall be required to pay for a special or extraordinary expense unless there written agreement to the expense is obtained in advance of the expense being incurred. Neither party shall unreasonably withhold their consent to an expense.

3. Spousal Support

3.1 Starting July 1, 2016, until further court order or agreement of the parties, Michael will pay Colleen interim spousal support of $7649 per month, split evenly into two monthly instalments paid on the first and 15^th of each month.

3.2Between July 1, 2015 and June 1, 2016, the applicant has paid spousal support of $7000 to Colleen each month on a periodic basis. These payments are deemed to have been paid and received under this agreement and subsections 56.1(3) and 60.1(3) of the income tax act. Of the spousal support paid by Michael in 2015, the sum of $30,000 was paid via the Switzer family trust. As such, Colleen has already paid tax on these funds. Michael will deduct all amounts above $30,000 paid from the family trust from his taxable income and Colleen’s will include them in her taxable income.

8. Retroactive Child and Spousal Support

8.1 The child and spousal support payments set out in this agreement are without prejudice to either party’s position or claim with regard to retroactive child support, contribution towards child care expenses, section 7 expenses and spousal support payments in the period between August 12, 2014 and to present.

8.3 Any post-separation expenses owed by either party shall be adjusted upon payment of the equalization of net family property payment owed between the parties. Within 60 days of the date this interim without prejudice Agreement is signed by both parties, they shall exchange their respective positions on post-separation expenses from the date of separation to present.

[13] On September 23, 2016, at a case conference, the parties agreed to try mediation, agreed to questioning and disclosure. The parties attended mediation without a final resolution. The litigation resumed and Justice Audet assumed the role as case management judge. On September 12, 2017, Justice Audet heard the applicant’s motion to vary the terms of the Partial Separation Agreement which had been registered for enforcement purposes. Justice Audet made the following order:

a. Imputed an income to the applicant of $250,000 for 2017, without prejudice to the parties’ right to argue a different outcome at trial. The amount of $250,000 was based on employment income earned by the applicant from January to May 2017, the sum of $56,781 received from Flaherty LLP and the sum of $90,000 representing his redemption of the shares in 1012713 Ontario Inc.

b. Determined the respondent’s income to be $40,000 based on her new employment.

c. Ordered the applicant to pay child support in the amount of $4,051 per month and spousal support of $2,886 per month effective September 1, 2017, for a total monthly payment of $6,937.

d. Deemed arrears as of August 31, 2017, under the terms of the temporary without prejudice June 28, 2016 agreement to be without prejudice to the parties’ right to argue differently at trial.

e. Granted the respondent the right to receive the disability credits for Patrick, retroactively to his birth without prejudice to the applicant’s right to argue at trial that the benefits should be shared.

f. Refused the applicant’s request to allow him to make third-party payments on behalf of the respondent in lieu of support, should she fail to make the payments related to the matrimonial home.

g. On consent of the parties, ordered that each parent was to take the children to the respective medical and other appointments on an alternating-equal basis and that the parties were to consult one another prior to booking appointments to ensure availability.

h. Declined to order that the applicant pay for interim disbursements of $50,000 claimed by the respondent to retain experts to determine the valuation of the applicant’s interest in Flaherty LLP and to determine his income.

[14] On November 17, 2017, Justice Audet ordered the respondent to pay the applicant costs of $7,000 for the motion to be deducted from her share of the proceeds of the sale of the matrimonial home.

[15] The applicant paid the child and spousal support from September 2017 to January 2018. He did not voluntarily pay any support after that date. Any support paid after that date was collected by the Family Responsibility Office. The parties proceeded to a settlement conference on February 9, 2018, without resolution, but the applicant was granted permission to bring a motion to vary the support order of September 12, 2017. On May 15, 2018, Justice Audet heard the applicant’s motion to suspend his child and spousal support obligations and she made the following statements in her endorsement as follows:

[16] In his evidence adduced for the purpose of this motion, the father indicates that he is currently responsible for approximately 50 litigation matters consisting mostly of personal injury and other litigation matters. Nearly all our contingency matters. Whenever possible, he takes smaller or simpler matters that yield the payment of fees in the short term to help assist with cash flow. From his law firm’s inception in June 2017 to present, the father has docketed over 2500 billable hours and work in progress is a little over 1.8 million, but he is only collected $27,000. He currently employs two paralegals and rents office space. His monthly operating costs are approximately $20,000. He does not pay himself a salary.

[17] To maintain the business afloat, on April 27, 2018, he secured a business loan from a private lender in the amount of approximately $115,000, which accrues interest at 18% on a straight – line basis. It allowed his firm to bring its current financial obligations up to date, leaving slightly less than $25,000 which should cover expenses for the month of May. He continues to borrow from his parents to provide for his basic needs and those of his children while in his care. He currently owes them approximately $300,000.

[18] The father argues that all he needs is some reprieve until one of his matters settles, at which time he will be receiving significant pay – outs. Once this happens, he will be able to retroactively repay the mother any arrears that might have accrued under the existing order, in large lump-sums. He says he brought this motion promptly in March when his efforts to negotiate a temporary settlement failed; and he simply seeks a suspension of my September 217 support order until he does in fact receive some income.

[16] Justice Audet ordered the applicant’s support obligations to be suspended, ordered the applicant to provide detailed monthly disclosure and placed the matter on the May 2019 trial sittings. On April 16, 2019, Justice Audet found that the parties had not provided sufficient disclosure, that the matter was not ready for trial and adjourned the matter to the September 2019 trial sittings. On September 19, 2019, the matter was adjourned, on consent, to the November 2019 trial sittings.

[17] On October 21, 2019, Justice Audet refused the applicant’s request to adjourn the trial, granted leave to the applicant’s counsel to seek an order removing him as counsel of record and granted the respondent leave to bring a motion for partition and sale of the matrimonial home in the event she elected to consent to an adjournment of the November 2019 trial. The respondent did not consent to the adjournment of the trial, however, on November 20, 2019, the matter was struck from the trial sittings because the parties failed to file a trial record. Further, the court ordered that the matter would only be placed on a trial sitting once the parties filed a trial record. Neither party filed a trial record. The respondent did not bring a motion seeking the sale of the matrimonial home. On January 5, 2021 Justice Audet convened a trial management conference where this matter was added to the May 2021 trial sittings as a priority case and peremptory to both parties.

DIVORCE ORDER

[18] I find that the parties separated on August 12, 2014 and there is no chance of reconciliation. I grant a divorce order.

DECISION MAKING AND A PARENTING SCHEDULE

Applicant’s Position

[19] The applicant submits that both parents are capable and loving and have the best interests of their children as their number one priority. The applicant submits that the parties have been able to reach agreement on which school the children should attend since separation and have agreed on changing medication that has been administered to all three children over their lifetime. Both Matthew and Charlotte attend school in Richmond while Patrick, who has special needs, attends a specialized school in Kanata.

[20] The applicant’s position is that the parties should have an equal say on all major decisions regarding the children. To that end, he is prepared to consult with the respondent to mutually reach an agreement on the major issues regarding the children such as education, health, religion and activities. Further, he is prepared to attend mediation if there is an impasse prior to seeking the intervention of the Superior Court. With respect to a parenting schedule, the applicant proposes an alternating week on/week off schedule, with the exchange being Sunday at 6 PM at a mutually agreed-upon location and provided a very detailed draft order on the issue of decision-making and parenting time.

Respondent’s Position

[21] The respondent’s position is that she should have the ultimate final say on the major decisions for the children. She is prepared to consult with the applicant prior to any major decision being taken but in the event of a disagreement, she should have the final say. She proposes that the children’s primary residence would be with her and that the applicant have the children two weekends out of every three weekends as well as a detailed proposal on holidays.

[22] The respondent submits that since the children’s birth, she has been the main caregiver and since separation, the children have resided primarily with her. She has been the parent responsible to take the children to the various medical and educational appointments required for all three children. She further submits that her relationship with the applicant is toxic, that he is condescending to her, that he attempts to bully her and has no respect for her. She testified that she intentionally attempts to avoid interacting with the applicant on any issue.

Parties’ Consent

[23] During the trial, the parties consented to a final order that the children be raised in the Catholic religion and that the children would attend the Ottawa Separate School system, except that Patrick would attend a private school as long as he continued to receive government funding related to his autism.

Legislative and Jurisprudential Considerations

[24] The court has considered Section 16 of the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) which provides as follows:

16(1) Best interests of child

The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

16(2) Primary consideration

When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

16(3) Factors to be considered

In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(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; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

16(4) Factors relating to family violence

In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(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, emotional 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 own 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.

16(5) Past conduct

In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[25] The most relevant issue in custody and access matters is the best interests of the child and the best interests are not merely paramount they are the only consideration in the analysis. (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. The jurisprudence has provided a series of factors to be considered in determining whether or not to making a joint custody order, now termed a decision-making order such as:

a. The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other. (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 OCA).

b. Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict such of conflict impacts are as likely to impact on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint custody may be appropriate. (Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 OCA).

c. One parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 Carswell on 4789 OCA).

d. Where it is necessary to preserve the balance of power between the parties, particularly cases were both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. (Khairzad v. Macfarlane, 2015 ONSC 7148 and Fraser v Fraser, 2016 ONSC 4720).

e. In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication. (Khairzad v. Macfarlane, 2015 ONSC 7148).

[26] The current Divorce Act mandates at section 16(6) that the court give effect to the principle that a child should have as much time with each spouse as is consistent with the child’s best interests.In a recent Court of Appeal decision of Knapp v. Knapp, 2021 ONCA 305, Benotto J. stated at paras. 31 -34, the following statements about the maximum contact principle taking into consideration the 1985 Divorce Act and the 2021 amendments to the Divorce Act:

[31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[32] The current provision of Divorce Act, is more direct:

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.

Analysis on Decision-Making

[27] I find that the applicant and the respondent both love their children and that they have an excellent relationship with their children. I accept that the applicant cared for the children as much as he could when he returned from work during the day until the children went to bed and on weekends. However, since the birth of all three children, the respondent has been the primary caregiver. The respondent has been the person involved in addressing all needs for the children. She has been the parent responsible to ensure the children attended their required medical appointments, she was the parent who arranged for daycare and respite care and she made the arrangements for Patrick’s enrolment in a specialized school. The respondent was the parent who got up in the night when the children were young and who cared for them on a full-time basis until they could go to school or daycare.

[28] The respondent was responsible for all domestic functions in the house including cleaning, buying groceries and preparing meals. The applicant’s primary responsibility was going to work and earning income for the family. The applicant testified that he was and is a workaholic and that he worked between 60 to 80 hours per week, usually seven days per week. As he was the sole wage earner of the family, he felt obliged to try to generate as much income as possible. He has continued this pace since separation.

[29] I find that the respondent has been the parent most responsible for pursuing the diagnosis of Patrick being autistic. After a psychological assessment by the Children’s Hospital of Eastern Ontario dated January 24, 2018, Patrick was diagnosed as being on the autism spectrum. Patrick was accepted in the Ontario Autism program. Consequently, the respondent undertook to make all arrangements to have the child registered and accepted in the autism program in Kanata and to receive funding. I accept that the applicant would speak to the doctors by phone if he could not attend the appointments. I find that the applicant and the respondent consulted about all the major decisions but that the applicant deferred to the respondent as he had confidence in the respondent and her ability to investigate and obtain all relevant information before a final decision was made. The applicant trusted the respondent to make decisions in the best interests of their children.

[30] After separation in August 2014, the parties differ as to how often the applicant saw the children. I accept the testimony of the respondent that when the twins were infants, the applicant would take Matthew for parenting time but not the twins outside of the home. The applicant would attend at the home to have parenting time with all three children. The respondent would leave the home for the day and sometimes the applicant would sleep over as it was his desire to see his children but also that he wanted the parties to reconcile. Once the applicant moved to downtown Ottawa in the Spring of 2015, he had the children normally every weekend for various lengths of time. Sometimes he would take Matthew and the twins and sometimes simply Matthew.

[31] The respondent testified that she was on eggshells in any face-to-face interaction with the applicant. She testified that the applicant insisted on attending at the matrimonial home without any notice to retrieve his mail. Despite requests by the respondent that the applicant change his address for mailing purposes, he refused. On November 23, 2017, the applicant forcibly entered into the home thereby causing damage to the door. The applicant did not deny that he forcibly entered the home looking for his mail. He testified that it was his right to enter his home.

[32] The respondent found the applicant to be self-absorbed and obsessed with money. She testified that the applicant would renege on certain agreements, such as the nature/nurture program for Charlotte where he originally agreed to pay for the program and then reneged. On another occasion, the respondent asked the applicant for $60 to buy a prescription for Charlotte’s inner ear infection. He refused and the respondent borrowed the money from her parents. In 2018, the respondent received social assistance benefits because she was not receiving any support from the applicant. Despite receiving a loan of $115,000 from Bluecore Capital Inc. to reimburse the applicant for disbursements that he personally paid for on his personal injury matters, he did not pay any support to the respondent. He reimbursed himself, purchased many household items and used the money to pay for his personal expenses. He paid nothing to the respondent.

[33] I accept the respondent’s evidence that the parties cannot communicate. During the trial, I was able to observe the interaction between the parents. During the applicant’s interaction with the respondent, he spoke to her in a condescending manner. Anything that she answered, he attempted to manipulate to support his view. The applicant was highly critical of the respondent hiring young people to help her care for the three children. He criticized the type of clothing that she purchased when she had access to the various credit cards. For example, he criticized her buying iTunes for the children on a credit card or purchasing clothing at the Gap or Roots. The applicant’s demeanour exhibited a lack of respect for the respondent. When the respondent testified, I observed that she spoke in a hushed tone when interacting with the applicant. It appeared to me that she was trying to be very careful in how she interacted with the applicant.

[34] In arriving at my decision, my focus is what is in the best interests of the children and not what is in the best interests of the applicant or the respondent. I find that the children have been in the primary care of the respondent since birth and they have done very well in her care. The applicant cannot point to any decision that the respondent has made regarding the children’s medical or educational issues that he opposed or that he found was not in the best interest of their children. I accept the respondent’s evidence that there is no communication between the parties except by email, that the respondent finds the applicant very controlling, that she is on “eggshells” when she communicates with him and that “the applicant puts her down as a mother and a person”.

[35] The respondent and the applicant do not trust each other. They appear to not like each other. The children are in the middle of this parental conflict. The children, especially Patrick, needs stability in decisions regarding their welfare. The applicant has had a role to play but it has been a secondary role as the respondent has assumed the role as the primary parent. Based on these factors, I do not find that a joint decision-making order is in the best interests of these three children. Such an order is bound to create conflict and fails to provide a mechanism that is in the best interests of the children.

[36] I conclude by finding that the respondent shall have the sole decision-making authority regarding the children. Such authority will require her to consult with the applicant via e-mail before any major decision is undertaken with respect to the children. If there is a disagreement or the applicant fails to respond within a reasonable period of time, the respondent will be empowered to make the decision.

Analysis on the Parenting Schedule

[37] The applicant seeks an order that the children reside with him on an alternating week about basis with the transfer date being Sunday at 6 PM. The respondent proposes that the applicant have the children two weekends out of every three weekends from Friday after school until the start of school on Monday mornings, extended from Thursday after school if Friday is a school holiday, to the start of school lunch Tuesday morning, if Monday is a school holiday.

[38] Until the end of the school year in June 2021, Matthew attended an elementary school in Richmond. Charlotte attended, on a temporary basis, an elementary school in Barrhaven and Patrick attended a special-needs autistic school in Kanata. As of September 2021, the parties testified that they believed that both Matthew and Charlotte would be attending elementary school in Richmond and Patrick will be attending his program in Kanata.

[39] Once the respondent moved out of the matrimonial home on December 8, 2017, the applicant would have the children two of three weekends on a rotating basis going forward being from Friday after work until Sunday evening. Despite the applicant arguing that he wanted more time with his children, after the respondent left the matrimonial home on December 8, 2017, the applicant never brought a motion seeking more time with his children. All of the motions to court dealt with financial matters. If the applicant wanted more time with his children, he has not explained why he did not bring a motion to court. While it is true that the matter was on the trial list in 2019, it was removed in November 2019 and only replaced in January 2021.

[40] The applicant’s proposal is that Matthew and Charlotte can be picked up by bus at his home in Richmond and driven to school. The applicant proposes that he would drive Patrick to his program in Kanata. In the event that the applicant cannot deliver Patrick to his program, he proposes utilizing third parties such as a friend, neighbour or his parents. These individuals would also be engaged if the applicant could not be home to pick up Patrick or receive Charlotte and Matthew from the school bus. The children have never experienced this type of schedule.

[41] As of September 2021, Matthew and Charlotte’s school starts at 8:45 AM and finishes at 3 PM. Patrick’s program starts at 9 AM and finishes at 4 PM. The applicant proposes that he will be home for the children during the weeks that he has them in his care. He proposes that he will either pick up Matthew and Charlotte from school or wait until they are delivered by bus, then all three of them will drive to Kanata to retrieve Patrick. By having the children every second week, the applicant submits that he will be able to care for them when they are in his care and on the subsequent week, he can focus on his law practice. The applicant admitted his work schedule is booked every day and that he has two clear days a year in a very busy litigation practice. The applicant indicates that he currently has approximately 38 matters ready to proceed to trial and that he will be very busy once jury trials are permitted to proceed in the Superior Court.

[42] I have taken into consideration that since the children were born, they have been in the primary care of their mother. Patrick is autistic and that he is currently following a schedule that has been in place for an extended period of time. While I have no doubt that the applicant loves his children, I do not believe that the children’s parenting schedule should be fundamentally changed at this point. The children are stable, doing well and attending school. The applicant’s proposal is a radical change to the children’s parenting schedule. The applicant has not proposed anything other than alternating weeks. In my view, it is in the best interests of the children to maintain the status quo and that the applicant will have parenting time set out below.

Order on Decision Making and Parenting Schedule

[43] I make the following order:

1. The respondent is granted the right to make all decisions regarding the children, namely Matthew, Charlotte and Patrick, including education, health and significant extra-curricular activities. Prior to making any such decision, the respondent shall advise the applicant via email of her proposed decision. The applicant shall be afforded a reasonable time to respond. In the event of a disagreement, the respondent shall have the right to make the final decision.

2. The children shall be raised in the Catholic religion and that the children will attend the Ottawa Separate school system, except that Patrick will attend a private school as long as he continues to receive government funding related to his autism.

3. With a mutual written agreement of both parties, the parenting time with the children may be modified. Unless the parties agree differently, the parenting time with the children will be allocated as follows:

a. The children will live primarily with the respondent.

b. The children will live with the applicant two weekends out of every three weekends, from Friday after school until the start of school on Monday morning, extended from Thursday after school if Friday is a school holiday, to the start of school lunch Tuesday morning, if Monday is a school holiday; and

c. The applicant will be responsible for transporting the children to and from school or the respondent’s home, as applicable, during his parenting time. Each party shall provide written consent where required, where the other party must arrange third party transportation for any of the children to attend school. Both parties may utilize their parents to receive the children or transport the children on behalf of either the applicant or the respondent as applicable. Any further individuals proposed by either party to assist in receiving or transporting the children require the consent of both parties which consent is not to be unreasonably withheld.

4. This holiday schedule is in addition to the regular parenting time above and overrides the regular parenting time in the event of conflict:

a. The children will stay with the parent who is scheduled to have the children for the Family Day weekend according to the regular parenting time schedule.

b. The children will stay with the applicant during the March Break school holiday in odd-numbered years and with the respondent in even-numbered years, from after school as the break starts until the start of school following the break.

c. The children will stay with the respondent on Mother’s Day from 6 PM the preceding Saturday through their return to school on Monday morning.

d. The children will stay with the applicant on Father's Day weekend from 6 PM the preceding Saturday through their return to school on Monday morning.

e. The children will stay with the applicant for the first two weeks of the month of July and the first two weeks of the month of August and with the respondent for the balance of the Summer School Holiday. The first two weeks of each month shall be defined so as to coordinate with the Cavanagh family reunion in July and the Switzer family reunion in August.

f. The children will stay with the respondent in odd-numbered years for the Easter weekend and with the applicant in even-numbered years. This holiday shall start from school on Thursday before the Easter weekend until the start of school the following Tuesday.

g. The children will stay with the applicant in odd-numbered years and with the respondent on even numbered years on the Victoria Day weekend.

h. The children will stay with the respondent on the Labour Day Weekend.

i. The children will stay with the respondent on the Thanksgiving weekend.

j. The parties will equally share the children's Christmas Break. The children will stay with the respondent for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years and with the applicant for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half will start on the last day of school in December and end at noon on the date that is the halfway point of the Christmas Break. The second half will start at noon on the date that is the halfway point of the Christmas Break and end at the start of school on the January return date.

k. Regardless of the Christmas Break schedule set out above, the children will stay with the respondent on Christmas Eve at 10 AM until Christmas Day at 1:00 PM, and with the applicant from 1:00 PM on Christmas Day until 5:00 PM on Boxing Day.

l. Each child will spend his or her birthday in accordance with the regular parenting time.

5. The party with whom the children are scheduled to be according to the parenting time schedule will be responsible for making childcare arrangements during their parenting time, including making alternate childcare arrangements when unable to care for the children as a result of illness, employment responsibilities, etc.

6. Neither party will arrange activities for the children during the other party's scheduled parenting time without the other party's consent.

7. Both parties may attend extracurricular activities and scheduled school events regardless of the parenting time schedule.

8. If a child is sick, the transition from one party's care to the other party's care is to proceed according to the parenting time schedule.

9. The children will be permitted to take any personal item, toy, gift or article of clothing between the parties' homes, without restriction.

10. The children’s health cards will travel with the children according to the parenting schedule.

11. With respect to school, the applicant and the respondent shall follow the following:

a. Both parties may attend all school functions regardless of the parenting time schedule.

b. The parties will attend parent-teacher meetings preferably together, but if that is not practical, then individually.

c. Each party will obtain their own school calendar and school notices.

d. With respect to school field trips or classroom events, the parties will alternate attendance. If one party is unable to attend, that party will immediately notify the other party, who may attend instead.

12. The applicant and the respondent may make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. Each of them has 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 paragraph itself is not sufficient, the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this paragraph.

13. If either party plans a vacation with the children, the travelling party will:

a. Give the other party a detailed itinerary at least thirty days before the vacation begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip; and

b. Sign and have notarized any travel authorization provided by the other party authorizing the children to travel with the cost of notarization being borne by the party that is to sign.

14. The respondent may apply for a Canadian passport or similar travel document for any child. The applicant shall sign any such document application. The respondent shall retain any such document and give them to the applicant when he needs them for travel with the children. The applicant shall promptly return said passports after travelling with the children. The costs for such passport applications including the cost of photographs shall be shared by the parties as a Section 7 expense. Said costs shall be paid within seven days of the respondent requesting the applicant’s contribution and providing the applicant with proof of the expense for same.

INCOME DETERMINATION

Applicant’s income

[44] The applicant submits that his income for the years 2014 to 2020 inclusive for support purposes should be based on the declared income set out in his income tax return, except for the year 2019. In that year, the applicant declared a taxable income of $607,614.66 based on liquidating his RRSP holdings. For 2019, the applicant submits that his income should be zero. For the year 2021, the applicant seeks to impute an income to both he and the respondent of $50,000.

[45] The applicant’s income tax return indicates that he has declared the following income:

a. 2017 federal income tax return, he declared employment income of $13,248, taxable dividends of $104,351.67 and other income respecting Torwith in the amount of $25,000 for a total of $142,599.67.

b. 2018 federal income tax return, he declared employment income of $17,000.

c. 2019 federal income tax return, he declared RRSP income of $607,614.60.

d. 2020 federal income tax return, he declared employment income of $10,360.08 and the Canada Emergency Response Benefits (CERB) in the amount of $14,000 for a total of $24,360.08.

[46] The respondent agrees that the applicant’s income for the years 2014, 2015 and 2016 should be based on the declared income as set out in his income tax returns. Starting in 2017, the respondent submits that the court should impute an income to the applicant based on the personal expenses that he is able to pay as set out in his various financial statements and that his lifestyle permits the court to impute an income for those years. The respondent submits that the applicant has an inherent obligation to put forward not only adequate but comprehensive records of income and expenses for which the recipient can draw conclusions. A recipient should not have to incur the expense to understand the disclosure. (Yocheva v Hristov, 2019 ONSC 1007). The respondent relies on the dicta of Justice McSweeney in Abbas v Albohamra, 2020 ONSC 591 where she stated at paragraph 47 the following:

[47] Where the asserted income of a party is inadequate to explain expenditures of that party found on the evidence, imputation of income may be appropriate. A payors lifestyle will often be relevant to determine whether a court may impute income: Bak v Dobell 2007 ONCA 304, at para-. 41. Lifestyle is therefore evidence from which an inference may be drawn that the PR has undisclosed income. In such cases, additional income may be imputed to that pay or for the purposes of determining child support: Bak, supra-.

[47] The applicant was a partner in Flaherty LLP up to May 26, 2017. The applicant negotiated with Flaherty LLP the terms of his termination from the partnership which was confirmed in a letter dated May 17, 2017 in which Flaherty LLP agreed to pay the applicant, the following:

a. The sum of $300,000 payable on or before July 31, 2017, representing a portion of his capital investment of $378,125 as agreed upon.

b. The balance of his share of the 2016 profit from Flaherty LLP to be paid on or before November 30, 2017, being $56,781.78 as of May 10, 2017 and $27,633.49 as of May 10, 2017, representing profits for Torwith.

c. $25,000 payable for his share of the 2017 Torwith profit as agreed upon.

d. Redemption of his shares in 1012713 Ontario Limited in exchange for payment of $90,000 to be paid on or before January 31, 2018.

[48] In addition, the applicant agreed that neither he nor the Switzer Family Trust would be entitled to share in any of the 2017 profit of Flaherty LLP, apart from the draws that he had received up to the date of resignation. The applicant did not provide any information as to what his draws were up to May 26, 2017. No representative of Flaherty LLP testified during the trial.

[49] The applicant believed that when he left Flaherty LLP, that he would be able to take clients with him in Ottawa. The applicant was in error as most clients did not move to the applicant’s firm. Once the applicant became aware that his clients were not moving with him, he restricted his search for possible employment to Ottawa law firms that did defence insurance litigation. He was unsuccessful. Rather than seek other litigation possibilities, the applicant decided to open his own practice and start afresh. He was given a few clients from his time with Flaherty LLP but effectively decided to switch from being a defence insurance litigator to a plaintiff insurance litigator. When he appeared before Justice Audet in May 2018, he indicated that he had 50 matters on the trial list and that he needed time to process these cases and that his work in progress was $1.2 million.

[50] During the trial in May 2021, the applicant again submitted that he needed further time to process his litigation matters because he now had 38 cases of the trial list, that he had significant work in progress and that because of the suspension of the jury trials for personal injury matters as of March 2020, he could not move matters forward into a final hearing. The applicant testified that his financial circumstances were still dire. However, upon a review of the financial statements for SPC, contrary to the applicant’s testimony, the applicant has been able to increase his professional fees every year set out in his financial statements for SPC as follows:

a. For the year ending September 30, 2018, the applicant had total income of $83,934 of which $83,666 was for professional fees. His business expenses were $278,883 resulting in a loss of $194,949.

b. For the year ending September 30, 2019, the applicant’s professional fees were $249,072 with expenses of $374,688 resulting in a loss of $125,616.

c. For the year ending September 30, 2020, the applicant’s professional fees were $417,167, wage subsidies of $36,563 and a $10,000 CEB debt forgiveness loan of $10,000 resulting in total income of $463,730. The applicant’s expenses were $288,061 resulting in a positive net income of $175,669.

[51] Despite the applicant indicating to Justice Audet that he would pay a lump sum amount of support to address the suspended child and spousal support, by September 2020, the applicant has never made a lump sum amount to address the suspended support. This is in spite of a positive net income of $175,699 for SPC ending September 30, 2020. The jump in the applicant’s professional fees has been dramatic, going from $83,934 in 2018, to $249,072 in 2019 and $417,167 in 2020. The applicant has the burden of proof to provide the court with sufficient information to have a clear picture of his financial circumstances. I do not find that the applicant has provided enough information. He has provided bits and pieces of financial disclosure without explanation.

Respondent’s Income

[52] I have reviewed the respondent’s income tax returns, notices of assessment and notice of reassessments for the years 2014 to 2015. Based on the information filed, the respondent’s income has been derived from various sources set out below:

a. 2014, total income of $73,814.03 comprised of employment income of $12,067.69, employment insurance of $25,050 and interest income of $36,703.34.

b. 2015, total income of $142,700 which includes spousal support paid. Neither party filed a copy of their 2015 federal income tax return. The only documents filed by both parties are notices of assessment or reassessment as applicable. The respondent’s position is that her employment income was $58,377 from Lockheed Martin. Based on that information, I find that the respondent’s income was $58,377. There was no evidence to the contrary provided.

c. 2016, exclusive of spousal support received, total income of $77,377 comprised of employment income of $20,828, RRSP income of $27,908, other income of $24,345 and employment insurance benefits of $4,296.

d. 2017, exclusive of spousal support received, total income of $21,940 comprised of employment income of $11,200 and employment insurance benefits of $10,740.

e. 2018, total income of $25,326.66 comprised of employment income of $5600, net professional income of $7,277.09 in social assistance of $12,449

f. 2019, net professional income of $23,817

g. 2020, net professional income of $45,473.

Analysis

[53] In determining a party’s income, the first step is to consider the provisions set out in the Federal Child Support Guidelines. Section 2 defines “income” means the income determined under sections 15 to 20. Section 15 indicates that a spouse’s annual income is determined by the court in accordance with Section 16 to 20. Section 16 states that subject to Section 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[54] If the court is of the opinion that the determination of a spouse’s annual income under Section 16 would not be the fairest determination of that income, Section 17 allows the court to have regard to a spouse’s income over the last three years in determining an amount that is fair and reasonable in light of any pattern of income, fluctuation income or receipt of non-recurring amount during those years. Further, where a spouse has incurred a non-recurring capital or business investment loss, the court may, choose not to apply Section 6 and 7 of Schedule III if the court is of the opinion that the determination of the spouses annual income under section 16 would not provide the fairest determination of the annual income.

[55] Section 18 permits a court, in cases where a spouse is a shareholder, director or officer of a corporation and where the court is of the opinion that the amount of the spouse’s annual income as determined under Section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in Section 17 and determine the spouse’s annual income include all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year or an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

[56] Section 19 permits a court to impute such amount of income to a spouse it considers appropriate in the circumstances, including a situation where a spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse. The list set out in Section 19 is illustrative and not exhaustive of situations where a court may impute an income. (Bak v. Dobell, 2007 ONCA 304, [2007] O.J.No.1489 Ontario Court of Appeal).

[57] In Korman v Korman, 2015 ONCA 578, the Court of Appeal stated at paragraph 51:

[51] However, whether income should be imputed to a payor spouse does not depend solely on the determination of that spouse’s presumptive income. The courts retain discretion to impute income to a payor spouse in excess of that spouse’s presumptive income where the imputed income is supported by the evidence and is consistent with the objective of establishing “fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution”: Bak, at para. 36; Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, 29 R.F.L. (5th) 293 (C.A.), at para. 44.

[58] With respect to RRSP income, in Roloson v Clyde, 2017 ONSC 3642, Chappel J. summarized the law with respect to RRSP withdrawals at paragraphs 199 - 201 as follows:

[199] With respect to RRSP withdrawals, the Ontario Court of Appeal highlighted in Fraser v. Fraser, 2013 ONCA 715 (C.A.) and Ludmer v. Ludmer, 2014 ONCA 827 (C.A.) that RRSP income is included as part of total income on the T1 tax form, and is therefore presumptively part of a party’s income for child support purposes. In this regard, it noted that the clear wording of the Guidelines includes RRSP withdrawals, and that Schedule III to the Guidelines does not create any specific exception for RRSPs. The court held, however, that the inclusion of non-recurring RRSP withdrawals in income is not mandatory, and that section 17 of the Guidelines provides the court with the flexibility to exclude such withdrawals from a party’s income in appropriate circumstances. However, in Fraser, the court specifically rejected the notion that non-recurring RRSP withdrawals should as a matter of course be automatically excluded from income. In both Fraser and Ludmer, the court concluded that the unique facts of every case must be carefully considered to determine whether the inclusion or exclusion of RRSP withdrawals would generate the fairest determination of the party’s income for child support purposes (at para. 105).

[200] Given that RRSP income is presumptively included in the income calculation for child support purposes, the onus is on the party seeking to exclude it from their income to satisfy the court that it is appropriate to do so (Burzminski v. Burzminski, 2010 SKCA 16 (C.A.). The reason for the RRSP withdrawal is an important factor in the court’s determination of this issue. In Fraser, the court decided that the father’s withdrawal and use of RRSP funds to purchase a house for himself was not a sufficient basis upon which the exclude the funds from his income, especially in light of the fact that he was not working and earning regular employment income at the time. In Ludmer, the court upheld the trial judge’s decision to exclude RRSP withdrawals from the parties’ respective incomes on the basis that they were non-repeating encroachments on capital, and that the wife’s withdrawals were largely applied towards funding the costly litigation between the parties. The need for to make RRSP withdrawals to fund the Family Law litigation between the parties was an also an important factor in the court’s decision to back out RRSP from the mother’s income for child support purposes in M.(J.C.) v. M. (K.C.), 2016 ONCJ 475 (O.C.J.) and Zigiris v. Foustanellas, 2016 ONSC 7528 (S.C.J.).

[201] In Ewing v. Ewing, 2009 ABCA 227, 2009 CarswellAlta 979 (C.A.); additional reasons at 2009 CarswellAlta 2083 (C.A.); leave to appeal refused 2010 CarswellAlta 17, 2010 CarswellAlta 18, 404 N.R. 386 (note (S.C.C.), the Alberta Court of Appeal clarified that when section 17 is engaged, the court is not required to carry out the income calculation by averaging out income over the previous three years. Although averaging of income is one approach which the court may adopt, the court has the discretion to pursue whatever approach it considers appropriate to determine an income figure that is fair and reasonable for the purposes of child support, including removing all or part of any non-recurring gains from income. Furthermore, the court clarified that section 17 applies with equal strength to retroactive and prospective support orders.

Year 2014 and 2015

[59] I find that in 2014, the applicant’s income was $414,697 and the respondent’s income was $73,814.03. In 2015, I find that the applicant’s income was $464,198 and the respondent’s income was $58,377.

Year 2016

[60] In 2016, I find that the applicant’s income was $594,586. The respondent submitted that her income was $25,124 without explanation while her income tax return discloses a total income from all sources of $77,377 including RRSP income. The respondent provided no evidence as to the purpose of the redemption of her RRSPs or made no submissions as to whether or not the RRSP should be excluded from the calculation of her income. I find that the respondent’s income 2016 should be as set out in her income tax return at $77,377.

Year 2017

[61] In the year 2017, I find that the respondent’s income was $21,940. I find that the applicant’s income should be set at $300,000 for the reasons that follow.

[62] I accept that the applicant declared an income of $142,599.67 on his income tax return. However, based on the terms of his departure as a partner, the applicant retained his draws from Flaherty LLP from January 1, 2017 to May 26, 2017. The applicant did not provide any information as to the total amount of draws received until May 26, 2017. By endorsement dated September 12, 2017, Justice Audet determined the applicant’s income to be $250,000 for the year 2017 and included the income from January 1, 2017 to May 26, 2017. I received no evidence from the applicant during this trial regarding the income he earned during that period of time. In my view, the applicant was required to provide full financial disclosure and he failed to provide this information.

[63] While I accept the draws are not a source of income to be included in a person’s total income set out on their income tax return, I find that the applicant received draws from January 1, 2017 to May 26, 2017. This source of income is referred to but not disclosed in his termination agreement with Flaherty LLP. In 2012, the applicant drawings were $252,515; in 2013, his draws were $289,668 and in 2014, $424,820. As the applicant has failed to provide any information as to what he received as a draw up to May 26, 2017. I have taken his draw in the year 2014, as that is the last financial statement from Flaherty LLP filed with the court, divided by 12 months arriving at a figure of $35,401 per month. The applicant was a partner for almost 5 complete months which would total approximately $177,008.33. I find it is fair and reasonable to impute approximately $150,000 of income related to the non-declared draw income received by the applicant from January 1, 2017 to May 26, 2017.

[64] In the applicant’s financial statement sworn on July 5, 2017, he indicated that he had taxable benefits by SPC with respect to his automobile lease, expenses and mobile phone and service which he estimated to be approximately $26,000 for the fiscal year. The applicant did not provide any information as to the net taxable benefit. I find that the applicant has a benefit by SPC assuming these expenses and will impute $2,000 a month for the months of June through December 2017, totaling $14,000. This amount should be added to the applicant’s income in 2017.

[65] The applicant’s financial statement dated July 5, 2017, indicated that his monthly expenses were $32,667 including monthly expenses to the Canada Revenue Agency of $20,000 and $5,000 for entertainment/recreation, including the children. The total yearly amount of the monthly expenses was $392,004. The financial statement was prepared by the applicant’s lawyer and the applicant swore as to the accuracy of the information contained therein. Further, the expenses for SPC ending September 30, 2017 was $124,670. The amount of yearly expenses incurred by the applicant in 2017 greatly exceeds his declared income on his tax return but not on my finding that his actual income was $300,000.

[66] The applicant testified that he originally borrowed $200,000 from his parents for SPC and over time, borrowed more money which by the time of the trial totalled $500,000. The respondent denies that the applicant has borrowed this amount of money. The applicant did not disclose when the funds were advanced by his parents; in what amount; whether or not there was an interest factor on the funds or whether there is any written loan agreement. The applicant did not provide any financial statements, such as bank records, indicating the receipt of any money from his parents. While the financial statements of SPC originally indicated a $200,000 loan in the period ending September 30, 2018, in future years, there is no breakdown of the loans indicated on the financial statement. Included in the loans for SPC was the loan agreements with Bluecore Capital Inc. The applicant has the obligation to provide full disclosure, including with respect to the alleged loan to his parents. The applicant has failed to meet his burden of proof. I will not consider any alleged loan to his parents in my analysis.

Year 2018

[67] For the year 2018, I find that the respondent’s income was $25,326. I find that the applicant’s income should be set at $100,000 for the year 2018 for the reasons that follow.

[68] The applicant has been able to pay the monthly expenses set out in his personal financial statements and has received the benefits for his vehicle and mobile phone expenses paid by SPC. In the year 2018, the applicant’s declared income was $17,000 based on his salary as an employee of SPC. The applicant is the sole owner of SPC. The applicant’s financial statement dated February 6, 2018 indicated that he was not receiving any income by that date but that SPC was paying for his automobile lease and mobile phone totaling $9,900 per year. Despite declaring no income, the applicant’s financial statement indicated that he was paying $22,407 per month as expenses including $10,000 to the Canada Revenue Agency. For the year ending September 30, 2018, SPC’s professional fees were $83,666 and expenses $278,883 resulting in a net loss of $194,949. I impute an income to the applicant of $100,000 based on these factors.

[69] Starting on April 17, 2018, SPC entered into a series of loan agreements with Bluecore Capital Inc. to finance the disbursements on his personal injury matters. The consolidation loan was entered into on March 22, 2019 in the amount of $950,978.62 for a three-year term. By September 30, 2019, the loan totalled $1,067,290. The loan agreement requires interest payments to be made on the loan, however, the applicant testified that the lender agreed to waive the interest on the loan agreement. The applicant did not provide any confirmation of such a variation of the written agreement by way of any documentation or testimony from a representative of the lender.

[70] The applicant testified that once he received the first loan in 2018, he reimbursed himself the disbursements that he had funded in the approximate amount of $115,000. In July and August 2018, the applicant paid for his living expenses and purchased various pieces of furniture including high-end electronics such as a generator, various appliances, dressers, electronics, outdoor furniture, a gas barbecue, a dining room table and chairs, a couch, a La-Z-boy, a $450 remote fireplace starter, to name a few. The applicant did not pay any child or spousal support with these funds at a time when the respondent was required to apply for social assistance to support herself and the children.

Year 2019

[71] I find that the respondent’s income was $23,817. I find that the applicant’s income should be imputed at $175,000 for the reasons that follow.

[72] In 2019, the applicant redeemed all of his RRSP holdings totaling $607,614.60. The applicant had the sum of $182,284 for income tax deducted at source. The applicant used part of the redeemed RRSPs to make a new RRSP contribution of $27,832 for the 2019 income tax year. The applicant did provide the financial statements for the year ending September 30, 2019, which indicated that SPC professional fees was $249,072 and expenses were $374,688 resulting in a net loss of $125,616. In 2019, The applicant did not file a financial statement in this application.

[73] I also have taken into account that the applicant’s financial statement sworn December 20, 2020, does not disclose any personal benefits paid by SPC. The applicant provided no explanation as to why that changed. The applicant testified that SPC paid for his vehicle lease and cell phone. I see no evidence that the situation changed and I will impute add the amount of $9,900 to be added to his income.

[74] I have arrived at the figure of $175,000 for the applicant’s income in 2019 by including the personal benefits paid by SPC for the applicant’s vehicle and mobile phone expenses and including approximately $160,000 of the applicant’s RRSP income. I have not used all of the applicant’s RRSP redeemed income. I have not considered the amount of $344,590.39 as that is the amount of the applicant’s RRSP holdings as of the date of separation which has been included in the calculation of the net family property. I have done so to avoid double dipping the RRSP as an asset and then as a source of income. With the remaining balance of $263,023.61, I find it a fair resolution to include $160,000 of that income as part of the applicant’s income for the year.

Year 2020

[75] I find that the respondent’s income was $47,278 based on her income tax return. I find that the applicant’s imputed income is $175,000 for the reasons that follow.

[76] The applicant’s position is that his income is $24,360.08 as stated on his income tax return based on employee income from SPC of $10,360.08 and CERB benefits of $14,000. The respondent submits that the applicant’s income is significantly more than the income declared on his income tax return. The respondent submits that the applicant is able to pay, according to his financial statement sworn December 22, 2020, monthly expenses of $60,660 including $50,000 a month towards debt payments. Included in his debt payments was $1,032,782.02 Bluecore Capital Inc., $354,057 of unpaid accounts, a personal loan to his parents of $500,000, a debt to the Canada Revenue Agency of $91,203.12 and unpaid municipal taxes to the matrimonial home of $7789.75.

[77] The SPC financial statement ending September 30, 2018, states that the professional fee income was $417,167 plus wage subsidies of $36,563 and $10,000 for CEBA debt forgiveness for a total income of $463,730. Total expenses were $288,061 resulting in net income of $175,669. Whilst SPC is a corporation, it is effectively controlled by the applicant who is the sole shareholder. The applicant did not address the net income in the year ending September 30, 2020. The applicant had an opportunity to advise the court as to why the net income remained in the corporation. He did not address that issue. I find that the applicant could have withdrawn additional income but did not do so. Further, the applicant has his cell phone and vehicle expenses paid for by SPC.

[78] Based on the personal expenses paid for by SPC, the CERB benefits, the applicant’s ability to pay significant monthly expenses especially towards debts and the lack of any explanation for retaining $175,669 of net income in SPC, I have determined that the applicant’s income in 2020 be set at $175,000.

Year 2021

[79] Until full financial disclosure is made for a determination of the parties’ respective incomes in the year 2021, I will base my support calculations based on the applicant’s income of $175,000 and the respondent’s income at $50,000.

RETROACTIVE CHILD AND SPOUSAL SUPPORT

[80] The respondent claims retroactive child and spousal support to August 2014. The applicant argues that there was an agreement reached in mediation that settled all support from the date of separation to December 31, 2015 and further confirmed by him making a payment of $12,000 in February 2016. The respondent denied that there was any agreement reached.

[81] I do not find that there was an agreement reached in mediation. During the applicant’s cross-examination, he could not explain why the Partial Separation Agreement paragraph 8 of the Partial Separation Agreement reserves the respondent’s claim for retroactive support. The applicant was dumfounded and could not explain the contradiction in his testimony. This agreement corroborates the respondent’s testimony.

PROSPECTIVE TABLE CHILD SUPPORT AND SECTION 7 EXPENSES

[82] In her answer filed in June 2016, the respondent sought table child support and Section 7 expenses for the children. The applicant concedes that since separation, the children reside primarily in the care of the respondent. Consequently, the applicant agrees that from the date of separation, he owes the respondent table child support.

[83] The respondent has made a claim that daycare and respite care expenses in the amount of $129,505 should be determined to be Section 7 expenses that the applicant should contribute to. The respondent has filed a series of charts for the years 2014 to 2017 inclusive which set out the date, method of payment, receipt, description of who provided childcare for the children during this period of time. The amount is broken down as follows:

a. For the year 2014, the respondent’s chart indicates that she spent $11,650 on daycare or respite care. Her testimony with respect to respite care is that she needed assistance to care for the three young children. This assistance allowed her to sleep, to purchase groceries and to perform domestic functions in the house. Of this amount $3,510 was identified as daycare with $8,140 representing respite care expenses.

b. For the year 2015, the respondent’s chart indicates that she spent $52,541 divided into $25,290 for daycare and $27,251 for respite care.

c. For the year 2016, the respondent’s chart indicates she spent $52,235 divided into $1,680 for daycare and $50,555 for respite care; and

d. For the year 2017, the respondent’s chart indicates she spent $9,058 all on respite care.

[84] The respondent submits that she incurred the daycare expenses to go to work and she incurred the respite care expenses because she needed help to care for Matthew who was 2 ½ years of age and Charlotte and Patrick nine months of age at separation. The respondent stated that the applicant did not help out with the children and that she was exhausted caring for three young children without any relief. Prior to separation, and after the birth of the twins, the respondent required the help of a night nurse two or three times a week as she was simply exhausted caring for the three young children.

[85] The respondent testified that the respite care was usually on Saturday and Sundays from 8 AM to 6 PM and maybe even Friday for a couple of hours to have someone watch the children to allow her to do groceries, run errands and catch up on her sleep as she was exhausted caring for all three children including Patrick, who has special needs. Further, the respondent testified that the applicant used the night nanny and some of the individuals who worked with the respondent on respite care and daycare when the children were in his care. Both parties knew the primary caregivers used by the respondent.

[86] The applicant opposes making any contribution to these expenses incurred by the respondent for daycare and respite care expenses. The applicant makes four arguments. The applicant’s first argument was that the Section 7 expenses for 2014 and 2015 were settled in mediation. I reject this submission as the Partial Separation Agreement clearly states the parties agreed that the respondent could claim retroactive Section 7 expenses to the date of separation.

[87] The applicant’s second argument is that respite care expenses do not qualify as Section 7 expenses because such expenses were not incurred as a result of the respondent’s illness, disability or education or training for employment. The provisions of Section 7 of the Federal Child support Guidelines are an exhaustive list of expenses that qualify for contribution. The daycare expense is tied to a parent incurring such expenses for specific endeavors such as employment, illness, disability or education or training for employment. The respondent testified that she needed help to care for the children to allow her to catch up on sleep, run groceries and do errands. She testified that she could not rely on the applicant to provide her with some respite for caring for the three children. Her evidence is that he would take Matthew but not the twins until September 2017. Further, she indicates that Patrick was a very high maintenance child who had difficulty sleeping. I agree that respite care does not qualify as a Section 7 expense under the Federal Child Support Guidelines.

[88] The applicant’s third argument is that the respondent did not obtain his consent before incurring these expenses and that once the parties signed the Partial Separation Agreement dated June 28, 2016, both parties expressly agreed that consent and notice was required before either party was liable to contribute to an expense. I find there are three relevant periods of time that need to be addressed.

[89] From separation until June 28, 2016, the evidence presented by the parties has not been fulsome. The parties at some point retained counsel and pleadings were exchanged. There has been no evidence that the respondent requested the applicant’s consent to incur these expenses. However, the applicant was aware that the respondent had returned to work in December 2014 and that she was gainfully employed until January 2016. In my view, the applicant knew the respondent was incurring these expenses and that the expense was necessary and reasonable to allow the respondent to work. As such, I find that the daycare expenses from August 12, 2014 to June 30, 2016 are valid Section 7 expenses and are to be included in any child support calculation.

[90] I find that the situation is different once the parties entered into the Partial Separation Agreement dated June 28, 2016. In that agreement, the applicant agreed to pay $1,567.80 per month for his contribution to daycare expenses as of July 1, 2015 on the basis that he was paying 67% and the respondent 33% of the childcare expenses. I find that the parties had turned their minds to addressing the daycare expenses. I find that the respondent is entitled to seek contribution to her daycare expenses incurred as of June 2016 and that such expenses to be included in the calculation of child support.

[91] The third period of time is the period after September 12, 2017, where Justice Audet ordered that ongoing Section 7 expenses needed to be agreed upon in advance. However, no such expenses are now being claimed by the respondent.

[92] The applicant’s fourth submission is that the documentation provided by the respondent does not provide an invoice signed by the provider, a calculation of the hours and hourly rate on the invoice or any evidence of a respite care grant or any tax deductions that the respondent was entitled to. I reject the applicant’s submission that the documents provided by the respondent are insufficient to qualify for consideration. I accept the respondent’s evidence that the two main caregivers for daycare were two young women known to the family. I also accept the respondent’s evidence that the cheques that she submitted to these two individuals were specifically incurred for daycare expenses to allow the respondent to go to work. Upon a review of the chart, there are expenses for daycare and expenses for respite care. I accept the respondent’s evidence that the specific expenses are set out in the chart. As with any piece of evidence, if the court finds it trustworthy and reliable, the court may consider the evidence in its final decision. I find that the respondent has been forthright throughout the litigation and I accept her evidence as to the daycare expenses that she incurred.

[93] Further in the Partial Separation agreement, the applicant to agreed to pay $1,567.80 per month as daycare expenses starting July 2015. Unfortunately, neither party provided evidence what were the net daycare expenses used to calculate that amount. However, the applicant clearly was aware and agreed to pay these expenses, so I find it difficult for him to now deny any liability for daycare expenses.

[94] Based on the respondent’s chart, I find that the respondent shall be entitled to include in the calculation of child support the following amounts for daycare expenses from August 12, 2014 to and including December 31, 2017 as follows:

a. For the year 2014, $3,510.

b. For the year 2015, $25,290.

c. For the year 2016, $1,680.

d. For the year 2017, zero.

SPOUSAL SUPPORT

[95] The respondent seeks spousal support on a compensatory and non-compensatory basis commencing August 2014, but she did not submit a termination date. The applicant submits that the respondent is entitled to spousal support for a period of five years from the date of separation being from August 12, 2014 to July 1, 2019 but he has not indicated the basis for such entitlement.

[96] There are three bases for the entitlement to spousal support being compensatory support, non-compensatory support and contractual support. Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunities which the spouse has forgone for the sake of the family or other spouse. Generally, compensatory awards are seen where one spouse has sacrificed career opportunities, has made significant contributions to the household, and where one spouse has made significant contributions to the other spouse’s career.(Kerr v. Erland, 2014 ONSC 3555.) Non-compensatory support is based on need of the recipient and may include a reduction in the recipient’s standard of living in comparison to the marital standard of living. (Gray v Gray, 2014 ONCA 659.)

[97] The Divorce Act provides that in making an order for spousal support the court shall consider the following:

15.2 Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited.

(b) the functions performed by each spouse during cohabitation.

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage.

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Analysis

[98] I find that the respondent is entitled to spousal support on a compensatory and non-compensatory basis based on the following factors:

a. The parties cohabitated from December 2009 until August 2014 during which period of time they had three children.

b. From 2012 to December 2014, the respondent was out of the workforce as a result of the birth of three children and her responsibilities as being the main caregiver to the children and the assumption of the domestic functions in the home.

c. The respondent has sustained an economic disadvantage as a result of the roles assumed during the period of cohabitation. The economic disadvantage continued postseparation when the respondent was terminated from two different employers partially as a result of missing work to care for sick children. The applicant did not participate in caring for the children when they were sick and the economic consequences were felt uniquely by the respondent.

d. The respondent did and continues to suffer economically as a result of the roles assumed during the marriage and since separation. It was only in October 2020, that the respondent was able to find full-time employment currently paying her $50,000 a year.

e. The applicant enjoyed an economic advantage as a result of the respondent assuming the role as main caregiver and performing most of the domestic functions allowing him to advance his legal career. The applicant admitted that he was a workaholic and he rose from the position of being an employee in Flaherty LLP in 2009 to being admitted to partnership in 2012 and then again being offered further equity in the firm in 2016. His ability to advance his career was greatly helped by the role assumed by the respondent.

Calculation of Child Support, Section 7 Expenses and Spousal Support

[99] I order the parties to provide written submissions including Divorcemate calculations based on my findings with respect to the parties incomes and section 7 expenses on the issue of table child support, section 7 expenses and spousal support from September 1, 2014 up to and including August 1, 2021. Further, I order the parties to set out the amount of child support, section 7 expenses and spousal support paid and received from September 1, 2014 to and including August 1, 2021. I order the applicant to serve and file his written submissions by no later than October 12, 2021. I order the respondent to serve and file her written submissions no later than October 28, 2021. There shall be no right of reply. If required, I may require the parties to re-attend to make oral submissions. With respect to deductions claimed by the parties in their Divorcemate calculations, any deduction must be based on evidence filed during the trial.

EXTENDED HEALTH COVERAGE

[100] Neither party has a private health plan. As such, any expenses incurred regarding the health of the children including but not limited to prescription medication and dental expenses shall be shared as special expenses set out in Section 7 of the Federal Child Support Guidelines.

LIFE INSURANCE AS SECURITY FOR SUPPORT

[101] The issue of life insurance shall be deferred until the determination of child and spousal support. The evidence during the trial is that neither party had a life insurance policy.

EQUALIZATION OF THE NET FAMILY PROPERTY

[102] At the request of the court, the parties prepared a net family property comparison worksheet indicating each parties’ position on the calculation of the net family property. Some of the items were disputed and other items were agreed-upon as follows:

Assets	Applicant	Respondent
Matrimonial home	value disputed
Contents	value disputed
Security deposit	value disputed
Acura	$4500
RBC chequing	$5208.52	$386.99
RBC savings	$5000
RBC USD	$50.17
RBC RRSP	$344,590.39	$82,244
RBC TFSA	$36,856.13
Edward Jones	$24,270
Manulife	$500
Flaherty LLP	value disputed
1012713 Ontario Inc.	value disputed
Torwith	value disputed

Debts
Mortgage	value disputed
RBC loan	$150,000	$150,000
CRA tax debt	$46,727.54
CIBC MC	$1476.35
RBC Visa	$1491.17
Notional tax RRSP	value disputed

Net value of property and debts on date of marriage
Assets
Personal chattels	value disputed	value disputed
Contents of home	value disputed	value disputed
RBC chequing	$3300
RBC savings	$4000
RBC USD	$2078.25
RRSP	$160,640.40
TFSA	$10,844.53
Motorcycle	$500
Debts
Mortgage	$267,504.27
RBC Visa	$3802.55	value disputed
Acura MDX	value disputed
Notional tax RRSP	value disputed	value disputed

Disputed Issues

Matrimonial Home

[103] The parties are joint owners of the matrimonial home. The applicant wishes to retain the matrimonial home, while the respondent seeks to have it sold. The issue of the applicant purchasing the respondent’s interest in the matrimonial home has been an issue since the parties separated. In July 2016, the applicant retained an expert to provide a fair market valuation for the matrimonial home. The expert report dated August 7, 2016 valued the matrimonial home as of July 27, 2016 at $700,000.

[104] The applicant advances three arguments. The first argument is that he accepted the respondent’s offer dated January13, 2020. The second argument is that there was an agreement reached orally between the respondent and the applicant on August 12, 2014, that he would buy out her interest in the matrimonial home. His third argument is that he should have 90 days from the date of the release of the trial decision to purchase the respondent’s interest in the matrimonial home, failing which the property shall immediately be listed for sale with a realtor that the parties agree to. I will address each argument set out herein.

Did the applicant accept all of the terms of the respondent’s offer dated January 13, 2020?

[105] Despite the applicant raising this issue in closing submissions, the applicant never raised this argument in his opening submissions or addressed it in his examination in chief. Rather, the applicant raised it in cross-examination of the respondent. Irrespective of when the argument was raised, I do not find that there was an offer and an acceptance made and that this claim by the applicant is without merit. My reasons are as follows.

[106] On January 20, 2020, the respondent’s landlord was bringing an application for eviction of her and the three children for nonpayment of rent. With the threat of eviction hanging over the respondent’s head, on January 13, 2020, the respondent made an offer to settle sent by e-mail to the applicant on the following terms:

The respondent, Colleen Switzer, offers to settle the discrete issue with respect to the disposition of, and division of equity in, the matrimonial home as follows:

1. The parties agreed that the current value of the matrimonial home is $820,000.

2. The matrimonial home will be transferred into the name of the applicant.

3. On the date of the transfer the mortgage (#01216-92623164-001) on the matrimonial home will be paid out by the applicant.

4. Each of the parties will be entitled to 50% of the Net Proceeds. The Net Proceeds are current value of the matrimonial home less the current outstanding mortgage (#01216-92623164-001) of $481,363.80.

5. On the date of the transfer, all liens in the matrimonial home that are solely in Ms. Switzer’s name shall be paid out from her share of the Net Proceeds.

6. On the date of the transfer, Ms. Switzer will be paid the balance of her share of the equity.

7. The applicant shall be responsible for the legal fees associated with the transfer and mortgages.

8. The transfer shall occur by January 21, 2020; and

9. The parties shall continue to negotiate:

a. The accounting of their post-separation expenses.

b. Support claims.

c. Special expenses.

d. Costs, and

e. Equalization.

The offer is open until January 15, 2020 at 5 PM.

[107] Later that morning, the applicant responded by e-mail. In the first part of the e-mail, the applicant asked for confirmation as to the respondent’s position on how certain expenses were going to be treated in the litigation. In the second part of the e-mail, the applicant stated as follows:

As far as the offer to settle is concerned, we are ad Item with respect to:

1. Transferring the matrimonial home from joint ownership to my name only.

2. The value of the matrimonial home at $820,000.

3. The value of the outstanding mortgage.

4. Paying the mortgage first out of the value of the matrimonial home.

5. Splitting the equity in the matrimonial home.

6. Paying the liens against the matrimonial home following the mortgage being paid out of Colleen’s share of the equity.

However, we have to reach an agreement on the following:

1. The payment of the outstanding costs award (plus post-judgment interest) out of Colleen’s equity in the matrimonial home.

2. The increased interest payments on the mortgage subsequent to July 31, 2019, due to Colleen’s refusal to renew the mortgage at a reasonable interest rate.

3. What portions of the matrimonial home expenses are support versus expenses that Colleen is responsible to reimburse me for.

4. What portions of the matrimonial home repairs are support versus expenses that Colleen is responsible to reimburse me for.

5. Once I hear from you with respect to issues 1 through 4 starting in the second paragraph of this e-mail, we can attempt to resolve these issues or enter into a without prejudice temporary agreement pending trial. Alternatively, we can proceed to a motion to address for issues that are listed immediately above this paragraph.

What I propose to address the issues is as follows:

1. Transfer the matrimonial home to my name only.

2. I will remortgage the house at 75% of the value assigned by the bank.

3. I will release the entire amount received from the bank after the remortgage at 75% less payment of the liens.

4. In the event that there is less than 50% of the equity available to be released after remortgaging, then the shortfall in payment will be agreed as owing to Colleen when the balance of the financial issues are addressed at trial (.i.e. support, equalization payment, joint property, etc.)

5. Coleen will be responsible for any legal fees, disbursements, and HST associated with discharging the liens (except the mortgage)

I suggest you and I discuss the above. I would like to get this sorted out as soon as possible to assist her in addressing the eviction proceedings. If we get an agreement in place, we will likely be able to enter into an agreement with the landlord that all rent arrears will be paid up to date once the matrimonial home transfer occurs.

[108] From January 15, 2020 to January 29, 2020, counsel for the respondent and Mr. Switzer exchanged a series of e-mails. The e-mail exchange indicates that the respondent continued to ask if the applicant was even accepted for a mortgage. The applicant indicated that he would obtain a mortgage approval from the Bank. No approval was provided. On January 21, 2020 at 12:01 PM, the applicant sent an e-mail to Mr. Letts that indicated he was planning to meet his banker that day. In the second paragraph of the e-mail, the applicant stated as follows:

The following are the terms of the settlement of the matrimonial home which I believe encompasses your client’s offer to settle and the other issues that must be agreed to:

1. The agreed-upon value is $820,000.

2. The agreed-upon mortgage amount is $481,363.80.

3. The agreed-upon equity is $338,636.20.

4. Melinda Cardinal will act for me in the transaction.

5. You will act for Colleen in the transaction.

6. Colleen will receive half of the equity, being $169,318.10 less the following:

a. None of the cost of the transfer of the matrimonial by Melinda Cardinal.

b. Half of the cost to draft a separation agreement by Melinda Cardinal that deals exclusively with the matrimonial home.

c. All of the amounts owing under the liens by the CRA and Gina Rossi.

d. Half of the cost to discharge the existing mortgage by Melinda Cardinal.

e. None of the cost of the bank appraisal of the matrimonial home with respect to the new mortgage.

f. None of the cost to register a new mortgage by Melinda Cardinal; and

g. All of your fees and costs act for Colleen in the transaction.

The transfer of the matrimonial home is without prejudice to any claims made by me against Colleen related to the matrimonial home such as repairs, the payment of expenses which Colleen was residing in the matrimonial home etc.

In the event that the new mortgage taken out does not yield the payment of at least $169,318.10, then any shortfall shall be paid by Michael to Colleen in a time period to agreed-upon once we know what-if any-shortfall there is.

[109] The respondent did not accept the terms set out in the e-mail sent by the applicant. Despite the applicant’s assertions, on January 28, 2020, counsel for the respondent inquired as to whether or not the applicant had been approved for a mortgage. No mortgage approval was provided so the next day the respondent withdrew her offer to settle and indicated she would be listing the matter for a motion to sell the matrimonial home.

[110] For there to be a binding offer to settle, there must be a clear offer and acceptance of all terms. When the respondent made the offer on January 13, 2020 the applicant was required to accept all terms in the offer. He did not. In his e-mail dated January 13, 2020, he accepted the respondent’s offer, then he added four other issues that required resolution and then made a counteroffer. In the counteroffer, the applicant did not agree that the respondent receive all of her equity.

[111] The respondent was consistent in her testimony that receiving all of her equity was the only reason she made her offer. She owed money to her previous lawyer, the Canada Revenue Agency and was facing eviction in the middle of winter with three young children. At this time, the applicant was not paying any child or spousal support but was paying for the carrying costs of the matrimonial home which he lived in.

[112] Despite the respondent not agreeing to his counteroffer, the applicant continued to forge ahead by seeking to obtain a mortgage. He proposed that if he could not secure a mortgage in his name only, that his parents were prepared to act as guarantors. He further proposed if the available equity in the matrimonial home was insufficient to pay the respondent half of the equity in the matrimonial home, that he would use the proceeds from a settlement on a litigation file that was imminent or he would obtain a second mortgage to satisfy the shortfall. The applicant never provided evidence that he had been approved for a mortgage.

[113] Further, if the applicant actually believed that there was an accepted offer to settle, being an experienced litigation lawyer, he was aware that he could have brought a motion to seek an order based on the alleged accepted offer to settle. He did not do so. I do not accept the applicant’s explanation that the suspension of the regular operations of the Superior Court prevented him from bringing such a motion before the trial. The regular operations of the Superior Court were suspended as of March 17, 2020 and this trial started on May 10, 2021. There was clearly sufficient time for the applicant to bring such a motion. Further, I reject the applicant’s argument that he could not bring a motion because the matter was on the trial list. The matter was removed from the trial list in November 2019, for a failure to file a trial record in breach of an order made by Justice Audet. It was only in January 2021 that Justice Audet placed the matter on the May 2021 trial sittings.

Was there an agreement on separation that the applicant had the right to buy the respondent’s interest in the matrimonial home?

[114] The applicant argues that on August 12, 2014, the parties agreed that the applicant could purchase the respondent’s interest in the matrimonial home. I do not find that was a binding agreement entered into between the parties. I accept the respondent’s evidence that the parties had a general discussion but never discussed specific terms. Further, the respondent’s evidence is supported by the fact that in the applicant’s application issued in June 2016, he did not plead that there was an agreement regarding the respondent transferring her interest in the matrimonial home to the applicant. Rather, he argued that the matrimonial home should be sold.

The applicant wishes to purchase the respondent’s interest in the matrimonial home

[115] The applicant’s third argument is that he should be afforded another extended period of time to buy out the respondent’s interest in the matrimonial home. The applicant has had over seven years to buy out the respondent’s interest in the matrimonial home. I reject this submission. The court does not have the jurisdiction to order the transfer of the respondent’s interest to the applicant. The only jurisdiction that a court has with respect to transferring property from one spouse to the other is the enforcement provisions set out in section nine of the Family Law Act. In Shouldice v. Shouldice, 2015 ONSC 1948, MacKinnon, J. addressed the request by one spouse to have the other spouse transfer her interest in the matrimonial home to him. Justice MacKinnon stated at paragraph 7:

[7] These terms are well beyond the ability of the court to order. The scheme of the FLA is to equalize the value of family property, not to change the ownership of assets. The court does not have the power to rearrange assets between spouses. The authority to transfer ownership of property between spouses is found in s. 9 (1)(d)(i) of the FLA:

9. (1) In an application under section 7, the court may order,

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years...

Disposition

[116] The matrimonial home is the largest asset of this family. The applicant has had exclusive possession since December 8, 2017. The respondent and the children are living in one of the bedrooms in her parent’s house, sleeping in bunk beds. The time to sell the matrimonial home has arrived.

[117] I order as follows:

1. The matrimonial home shall be listed for sale no later than October 15, 2021.

2. The parties shall jointly retain a real estate agent to list the matrimonial home for sale.

3. The parties shall list the matrimonial home at the price recommended by the real estate agent.

4. The matrimonial home proceeds of sale paid out as follows:

(i) The payment of real estate commission.

(ii) The payment of the legal fees for the lawyer acting on the sale.

(iii) The payment of the outstanding balance on the mortgage with the Royal Bank of Canada on the matrimonial home at the date of sale.

(iv) The payment of the outstanding municipal taxes at the date of sale.

(v) To the payment of any registered lien on the matrimonial home with respect to third-party creditors for both parties such as the Canada Revenue Agency, the Royal Bank of Canada and Gina Rossi; and

(vi) The balance of the net proceeds of sale are to remain in trust pending further order of this court.

[118] If the parties are unable to agree on any issue regarding the listing and sale of the matrimonial home including but not limited to choosing the listing agent, the listing price, I shall remain seized of these issues. If required, the parties shall contact the trial coordinator’s office to arrange a hearing date before me to address any of these issues.

Contents of the Matrimonial Home

[119] The applicant testified that the respondent retained $250,000 and he was left with $50,000 of the $300,000 of joint contents in the matrimonial home that existed on the date of separation. He indicated that total replacement cost of those joint contents was $400,000, including $100,000 of his personal chattels. The respondent’s position is that the applicant’s valuation is completely unreasonable and has no connection to reality. The respondent’s position is that up to the time of separation, the applicant retained $25,000 of contents and she retained $5000 of contents.

[120] In September 2017, the applicant’s counsel sent correspondence where he proposed a protocol that the parties would follow to divide the contents of the matrimonial home. This letter was sent after the respondent had given the applicant notice that she intended to move out. There are various categories including exempt chattels which represented the appliances, water conditioning system, irrigation system, hot water tank, personal clothing and accessories and many chattels related to the matrimonial home. The applicant proposed that certain items would be divided by each party receiving one of a variety of chattels including night tables, dining room table and chairs, kitchen table and chairs, sofa, mattresses, bedding, towel sets, pot sets, plates and bowls. A selection process was proposed. The respondent never responded to this correspondence.

[121] The applicant testified that on the weekend of December 8, 2017, while he was in Toronto visiting family with his children, the respondent, without notice to the applicant, vacated the matrimonial home and removed everything including premarital assets like his tools. The applicant testified that he was shocked at the respondent’s unilateral action. The applicant originally thought that the home had been burglarized but then noticed that there were contents remaining. He texted the respondent who admitted that she had removed the contents and had rented a home outside the village of Richmond with the children.

[122] The applicant submits that the respondent has a reverse burden of proof and she must establish the value of the contents because the Family Law Act prevents removal without consent of the contents of the matrimonial home. The applicant has provided no legislative or jurisprudential support for such a submission. I reject that the respondent has any reverse burden of proof regarding the value of contents on the date of separation.

[123] The applicant testified that he sent a list of missing joint chattels to the respondent’s counsel in May 2021, which included items in the mud room, an estimated $4,000 in grocery items removed from the pantry, three refrigerators and freezer, powder room, kitchen, dining room and garage to name a few locations. The applicant’s list totalled 411 items including stamps, toilet paper, first aid kit to name a few. In the list, the applicant provided the estimated replacement cost for insurance of the items as follows:

a. Clothing $100,000.

b. Furniture $100,000.

c. Electronics $50,000.

d. Appliances $25,000.

e. Tools $10,000.

f. Linens $5,000.

g. Wall and table art $10,000.

h. Consumables $5,000.

i. Other contents $95,000.

j. Total $400,000.

[124] The applicant testified that the contents of the matrimonial home were insured but he believes the value was significantly higher with hindsight. The applicant filed a copy of the homeowner’s insurance policy for the period of February 1, 2010 to February 1, 2011, insuring personal property at $325,150 for the Maravista Drive property. The applicant filed a copy of the home insurance policy for the matrimonial home for the period of February 1, 2014 to February 1, 2015, insuring the parties’ personal property at $552,300.

[125] The respondent testified that she did not empty the house as the applicant alleges. By letter dated March 15, 2018, the respondent’s counsel attached to the letter a list of items that the respondent had removed from the matrimonial home, items that were placed in storage, items that were disposed of or donated (such as used baby clothing, toys, stroller and a damaged barbecue), and items left at the home. The respondent testified that she removed the contents she had before and after separation on December 8, 2017. She took one of the two kitchen tables, one of the two couches, some chairs, most of the linens, split the utensils/gadgets/dishes pots and pans, some of the art on the wall and the queen bed in the spare bedroom in the basement. In addition, she listed the items that were left in the matrimonial home which included a sound system, three large flat screen TVs, a home computer and printer, office furniture, 95% of the art on the walls, custom-made shelving in the basement, leather couches and chairs, the applicant’s clothing, tools, etc. There is no evidence of the applicant responded to this list.

[126] In the joint net family property worksheet filed as Exhibit 183, the applicant indicates that on the date of separation, both parties had $100,000 of chattels of a personal nature and $150,000 of chattels were jointly owned. The respondent’s position is that on the date of separation, the applicant had $25,000 worth of chattels of personal nature and $5,000 for herself. On the date of marriage, the applicant indicates that he had $300,000 of furniture, contents of the home and personal chattels and the respondent had $5,000. The respondent’s position is that the applicant had $25,000 of personal chattels and that she had $5,000.

Analysis

[127] Both parties have the burden of proof to provide the court with evidence to allow the court to determine on a balance of probabilities the value of the contents. In determining the value, in my view, it is the fair market value of the contents at the date of separation and not the replacement value. In this case, while the parties have provided detailed lists, they do not agree on everything that existed at the time of separation, who has which item and what is the fair market value of each item. Further, neither party has provided evidence as to the date any item was purchased, its cost at the time and the condition of the item at separation. Neither party has provided any expert evidence. In Riebere v. Riebere, 2015 ONSC 1324, the court stated at paragraph 14:

[14] It is not always necessary to call expert evidence to prove values for minor assets: see DaCosta v. DaCosta, 1992 CanLII 7749 (ON CA), [1992] O.J. No. 384 (Ont. C.A.) at para. 37. Where there is a failure to produce proof of the value of assets, the court can estimate values, perhaps arriving at harsh choices or simply ascribing no value: see of Earle v. Earle, [1997] O.J. No. 1308 (Ont. Gen. Div.).

[128] I have reviewed the parties’ financial statements to ascertain if either of them placed a value for the contents prior to the respondent moving out of the matrimonial home on December 8, 2017. In the applicant’s financial statements dated March 9, 2016, February 6, 2018 and July 5, 2017, he does not provide a value for the household contents but indicates that the applicant’s proposal was that the household goods were to be divided between the parties. In the applicant’s financial statement dated December 20, 2020, the applicant indicated that on the date of separation he had $150,000 of household goods and furniture. In the applicant’s financial statement dated March 26, 2021, the applicant states that on the date of separation, the joint chattels are worth $200,000, his personal chattels were worth $100,000 and the respondent’s personal chattels were worth $100,000.

[129] In attempting to find a fair market value of the contents on the date of separation, I have reviewed the pictures of the interior of the matrimonial home which were included in the real estate appraisal of the matrimonial home dated August 7, 2016. Upon a review of those pictures, it appears to show a large home with various pieces of furniture throughout the various rooms. The pictures were of little assistance to me in determining the condition of the contents and did not include many of the items set out in the parties’ lists.

[130] I find that the amount on the various house insurance policies is of no assistance in determining the fair market value was of the contents that existed on the date of separation. Firstly, the values are based on the replacement value and not the fair market value. Secondly, there is no list of the contents insured. Thirdly, there is no explanation as to how the value of the personal property replacement value was determined and by who.

[131] This is not a case where one party is seeking a valuation of minor assets. The applicant is alleging over $400,000 of contents were unilaterally divided by the respondent. In my view, if the applicant seeks to advance such a large claim, it was incumbent upon him to provide evidence to support such a valuation. By the applicant simply relying on the replacement value set out in insurance policies without any detailed lists, by failing to provide an expert report on valuation and by failing to provide a detailed lists setting out the respective values of the items, the applicant has not met his burden of proof. With respect to the respondent’s evidence, she has failed to provide similar evidence and, in my view, was simply guessing at values.

[132] In this case, I am left without an evidentiary basis upon which to make conclusions of fact. The lack of adequate evidence places me in the position of guessing as to the values. I am not going to guess as to the value of the contents. I find that both parties have failed to provide sufficient evidence to allow me to conclude the value of the contents on the date of separation and that consequently, the values for contents will be zero to each party and each party will retain the contents currently in their possession.

The Value of the Applicant’s Interest in Flaherty LLP, Torwith Services and 1012713 Ontario Limited

[133] The applicant’s position is that the value of his interest in Flaherty LLP on the date of separation was $300,000. The applicant’s position is that his interest in Torwith Services was zero on the date of separation and that he did not have any interest in 1012713 Ontario Limited until 2016. The respondent’s position is that the applicant’s interest in Flaherty LLP was $526,580, $39,930 for his interest in the 1012713 Ontario Limited and $42,530 for his interest in Torwith Services.

[134] Flaherty LLP was a partnership that provided legal services. Torwith Services was a partnership that provided management services to Flaherty LLP, while 1012713 Ontario Limited was the registered owner of property municipally known as 132 Dundas Street West, Whitby, Ontario. Finally, 1061245 Ontario Limited was a company responsible for the leases in Toronto and Ottawa.

[135] According to the financial statements of Flaherty LLP, the applicant’s equity in the firm varied depending on the year was as follows:

a. December 31, 2012, $393,997.

b. December 31, 2013, $550,196.

c. December 31, 2014, $526,580.

[136] The applicant testified that income from Flaherty LLP was directed to the various family trusts and that the amount was invariably drawn out and paid, in the applicant’s case, to the respondent. According to the financial statements of Torwith Services, for the years ending in 2012, 2013 and 2014, almost 100% of the equity at the beginning of the year was drawn out in the subsequent year. In the applicant’s case, it was 100%.

Analysis

[137] The applicant testified that he became a partner in Flaherty LLP in January 2012 by acquiring a 10% equity share in exchange of a capital contribution of $300,000. The applicant financed this purchase with a loan taken out in the name of the applicant and the respondent, requiring interest-only payments to be paid. The applicant’s contribution of $300,000 appears in the financial statement of Flaherty LLP for the year ending December 31, 2012. The applicant never produced any documentation confirming his admission to partnership. In January 2016, the applicant testified he purchased a further equity share which was financed by a reduction in his bi-monthly draw.

[138] The applicant has the burden of proof to provide evidence as to the value of his interest in Flaherty LLP on the date of separation. The applicant has not provided any documentation save and except the financial statements that were filed in this proceeding. However, both the applicant and the respondent agreed that he made a $300,000 contribution financed by the joint loan.

[139] The applicant testified that during his tenure as a partner, there was never a partnership agreement in force and that he never signed a partnership agreement. During the trial, a copy of the partnership agreement dated the first day of January 2012 was filed which indicated the signature of four of the six partners not including the applicant. However, in the letter dated May 26, 2017 confirming the terms of the applicant’s cessation as a partner, the letter makes specific reference to the partnership agreement made the first day of January 2012 a partnership agreement. It is clear that Flaherty LLP was relying upon a partnership agreement dated the first day of January 2012. In my view, I find that a partnership agreement did exist dated the first day of January 2012. Further, I find that the only copy of the said partnership agreement was the agreement filed during this proceeding. I reject the applicant’s evidence that no partnership agreement existed and find that the applicant’s evidence is not credible.

[140] The applicant had an obligation to provide a value of the law firm interest as of the date of separation. He testified that he did not retain an expert because the respondent did not retain an expert. The respondent indicates that she could not retain an expert as she was unsuccessful on a motion seeking $50,000 for interim disbursements to include the retention of a business valuator. The applicant did not call as a witness a representative of Flaherty LLP to provide information to the court as to the value of his interest in the various legal entities. This option was open to the respondent to serve a summons on a representative of Flaherty LLP to address a variety of issues to assist me in arriving at my decision. Neither party called the representative. As such, much of the applicant’s testimony is uncontradicted.

[141] The applicant’s financial statements filed in this proceeding have not been helpful. On the applicant’s first financial statement filed in this proceeding, he did not declare any interest in Flaherty LLP but indicated that he owed $150,000 to the Royal Bank of Canada for the purchase of his partnership interest. On the applicant’s financial statement dated July 5, 2017, he declared that he had a $300,000 interest in Flaherty LLP on the valuation date and that the value of his interest in Torwith Services and 1012713 Ontario Limited was zero. These last two corporations were not disclosed on his first financial statement. No explanation was provided why that information was not earlier disclosed.

[142] The respondent’s position is that she has simply taken the financial statements of Flaherty LLP, 1012713 Ontario Inc. and Torwith Services as of December 31, 2014 to support her submissions as to the value of the interest in the various assets.

[143] In determining the value of the applicant’s interest in the various legal entities, I must do so based on the valuation date being August 12, 2014. The applicant’s evidence is that the value of his interest in the law firm on valuation date was $300,000. He indicates that when he eventually left the partnership in 2017, he was only paid $300,000 for his interest that existed at that time. I am not to consider postseparation events in calculating assets or debts on the date of separation.

[144] I reject the respondent’s submission that the applicant’s interest in Flaherty LLP, 1012713 Ontario Inc. and Torwith Services was the amount set out in the financial statements dated December 31, 2014. Firstly, the financial statement does not provide the fair market value of the applicant’s interest and secondly, the financial statement does not calculate any value as of August 12, 2014. With respect to 1012713 Ontario Inc. as of the date of separation, the uncontradicted evidence from the applicant is that he did not have any interest in that corporation until January 2016. Consequently, I find that on the date of separation, that the applicant had no interest in 1012713 Ontario Limited. Without any evidence to the contrary, I accept the applicant’s evidence that the value of his interest in Flaherty LLP on the date of separation was $300,000 and Torwith Services was zero.

The Notional Income Tax on RRSPs

[145] The applicant has claimed 47% income tax deduction on the value of his RRSPs as of the date of separation. His evidence was that in 2019, five years after separation, he was required to liquidate his entire RRSP portfolio and paid 47% income tax at that time. The respondent submits that a tax rate of 25% should be applied to both parties’ RRSP holdings on the date of separation.

[146] The law requires the court to determine assets and liabilities on the date of separation. I accept that both parties’ RRSPs will eventually be subject to income tax and that a notional amount of income tax should be deducted from the value on the date of separation. However, the issue is what is the applicable tax rate being a spouse’s average tax rate or a spouse’s marginal tax rate or the potential tax rate when the RRSP is disposed of. Neither party provided any expert evidence as to the notional income taxes that would be applicable on each parties’ RRSPs at the date of separation.

[147] I reject the applicant’s submission that 47% is the applicable income tax rate to his RRSPs on the date of separation. In determining the applicable income tax rate, the court is to consider at what time will the parties be required to start redeeming their RRSPs, thereby attracting income tax. The usual date is when the parties retire. In this case, neither party has his institutional pension. In my view, it is irrelevant that the applicant liquidated his RRSPs in 2019 because there was no evidence that at the date of separation there was any intention to liquidate his RRSPs in that period of time. The same applies to the respondent’s RRSPs.

[148] As neither party has provided any evidence as to the probable notional tax rate on their RRSPs as of the date of separation, the court has the discretion to determine the applicable tax rate. Where no such evidence is provided to the court, various judges have applied 20% in Brown v. Brown, 2004 CarswellOnt 2411, 15% in Belisle v. Anderson-Belisle, 2004 CarswellOnt 401 (S.C.J.) and 30% in Wouters v. Wouters, 2005 CarswellSask 396, 2005 SKCA 71.

[149] I find that both parties shall be entitled to a 25% notional tax deduction to the value of the RRSPs on the date of separation.

Security Deposit

[150] Once the applicant and the respondent became aware that the respondent was pregnant with twins in the fall 2013, they agreed they required a bigger vehicle. At the time, both were driving leased Acura motor vehicles. The respondent’s Acura’s lease was taken over by the applicant’s father. The applicant entered into a four-year lease for the 2014 Honda Odyssey and received a $7,376.46 trade-in value by trading in his father’s vehicle. This amount became the security deposit for the lease.

[151] Once the parties separated, the respondent retained the van. At the end of the lease, the respondent did not return the vehicle and Honda threatened to report the vehicle as stolen. The Ottawa Police Service attended at the respondent’s home and sought to have her deliver the vehicle. She refused. Eventually the applicant retained a private investigator and paid $2,500 to locate and repossess the van. It was returned to Honda and by letter dated March 20, 2018, Honda sent the applicant an invoice seeking an additional $5,518.12 for arrears of payment and charges for excessive wear and tear on the vehicle. Honda deducted that amount from the security deposit of $8,250 resulting in the applicant receiving $2,731.88.

[152] The respondent submits that the security deposit of $8,250 was an asset and as such that should be included in on the applicant’s assets on the date of separation. I agree. At the date of separation, the applicant had a security deposit which he used to pay the additional charges from Honda and received the balance of $2,731.88. I find that he had an asset in the amount of $8,250 and that amount should be included in the calculation of net family property. However, the applicant is entitled to compensation for the postseparation expenses incurred set out herein.

Assets and Debts on the Date of Marriage

[153] With respect to the contents on the date of marriage, the applicant alleges that he had personal items such as watches, ties, jewelry and suits valued at $100,000 and that he had $200,000 of contents. The respondent’s evidence is that she lived in a basement apartment and had little assets while the applicant had an apartment in downtown Ottawa. The respondent denies that the applicant had $100,000 of personal items and $200,000 of contents in his apartment. The respondent submits that the applicant at $25,000 of personal contents and she had $5,000 of personal contents on the date of the marriage. The applicant agrees that the respondent had $5,000 of contents. Neither party provided a list of contents and personal items, a value for each item or even pictures of the various contents and items. The applicant has been relying on the amount set out in the insurance policy, while the respondent has provided a number without any explanation. Both parties have a burden of proof to provide sufficient information to allow me to calculate the fair market value of the contents. Based on the information provided, neither party has met the burden of proof and I cannot determine the fair market value of the respective contents and personal items. I will simply indicate that both parties had zero contents on the date of marriage.

[154] The respondent submits that on the date of marriage, she owned a Ford Escape worth $8,000. The burden of proof is on the respondent to provide the fair market value for the vehicle on the date of marriage and provide some evidence that she was the owner. She failed to provide any corroborative evidence to prove she owned a car or that the car was worth $8,000 on the date of marriage. This claim is denied.

[155] The applicant submits that on the date of marriage, the respondent owed RBC Visa $10,000. The respondent denied that she owed RBC Visa $10,000 and no documentation was provided. This claim is denied.

[156] The applicant submits that on the date of marriage, he had a debt of $18,000 with respect to a leased motor vehicle. I deny this claim for two reasons. Firstly, there is no calculation as to how the $18,000 was arrived at and no documentation was provided. Secondly, there is no information as to the term of the lease and no information as to whether any such amount was due and payable on the date of marriage. There simply is no documentation to prove that on the date of marriage the applicant would $18,000.

[157] With respect to notional tax on the RRSPs at the date of marriage. I find that a 25% deduction for notional income taxes should be applied to both parties.

Calculation of the Net Family Property

[158] I calculate the net family property of the parties as follows:

Assets	Applicant	Respondent
Matrimonial home	to be sold	to be sold
Contents	zero	zero
Honda	$8,250
Acura	$4,500
RBC checking	$5,208.52	$386.99
RBC savings	$5,000
RBC USD	$50.17
RBC RRSP	$344,590.39	$82,244
RBC TFSA	$36,856.13
Edward Jones	$24,270
Manulife	$500
Flaherty LLP	$300,000
1012713 Ontario Inc.	zero
Torwith	zero
Total	$728,725.21	$83,130.99

Debts
Mortgage	to be paid from the proceeds of sale
RBC loan	$150,000	$150,000
CRA tax debt	$46,727.54
CIBC MC	$1,476.35
RBC Visa	$1,491.17
Notional tax RRSP	$86,147.59	$20,561
Total	$285,842.65	$170,561
Total net	$434,632.52	zero

Net value of property and debts on date of marriage
Assets
Maravista Drive	$295,000
Contents	zero	zero
Ford escape	zero
RBC chequing	$3,300
RBC savings	$4,000
RBC USD	$2,078.25
RRSP	$160,640.40
TFSA	$10,844.53
Motorcycle	$500
Total	$476,363.18	zero
Debts
Mortgage	$267,504.27
RBC Visa	$3,802.55
Notional tax RRSP	$40,160.10
Total	$311,466.92	zero
Total net	$164,896.26
Net family property	$269,736.26	zero
Equalization owing	$134,868.13

Postseparation Adjustments

Excess Interest Payments on the Mortgage

[159] The applicant seeks an order that the respondent reimburse him $90,631.36 as a result of the respondent’s refusal to renew the mortgage from July 30, 2019 up to July 2021.

[160] On June 28, 2019, the Royal Bank of Canada sent the parties the mortgage renewal agreement offering various options for the renewal. The existing term at that time was a two-year fixed close mortgage with a proposed interest rate of 3.07%. The existing interest rate was 2.540%. In the event that the renewal was not executed by the parties, the bank would apply a six-month open mortgage with an interest rate at 7.450%. At the time the mortgage was maturing July 30, 2019, the projected balance at maturity was $482,578.65 with an amortization of 16 years and six months. The monthly mortgage payment was $1,379.97. The applicant was prepared to sign the renewal for a two-year period with the proposed. The respondent wanted the house sold and refused to sign the mortgage renewal forms. On August 6, 2019, the Royal Bank confirmed the automatic renewal of the mortgage at 7.450% and that the term was six months open. The new mortgage payment was $1,942.98.

[161] The mortgage continued to be renewed every six months at 7.450% with small variations in the monthly payment. This continued for February 1, 2020, August 1, 2020 and February 1, 2021. At the time of the trial, the mortgage was maturing at the end of July 2021 and unless there was an agreement to renew the mortgage on different terms, the bank would simply continue to renew it as they have in the past.

Analysis

[162] I find that the respondent should have signed the mortgage renewal forms. Had she done so, the interest rate on the mortgage renewal would have been significantly less that 7.450%. The respondent’s unilateral refusal to sign the mortgage renewal form caused the monthly payment to increase needlessly. It was always open to the respondent to bring a motion to seek the sale of the matrimonial home. She did not do so.

[163] The applicant could have brought a motion to address the nonrenewal of the mortgage. The applicant argued that the matter was set to proceed to trial in September 2019 and that he intended to raise it at trial. However, the trial was adjourned in September 2019 to November 2019 and then was struck from the trial list for the non-filing of the trial record. I reject the applicant’s argument that he was without recourse once the Superior Court suspended normal operations in March 2020. By December 2020, the court was hearing motions. No motion was brought.

[164] During closing submissions, the applicant prepared a chart as follows:

Date of Renewal	Period	Balance of Mortgage	Interest Rate Available	Interest Rate Default	Interest Rate Difference	Excess Interest Paid
August 1, 2019	Six Months	$482,578.65	2.89%	7.45%	4.56%	$22,005.59
February 1, 2020	Six Months	$484,813.67	3.64%	7.45%	3.81%	$18,471.40
August 1, 2020	Six Months	$470,914.22	2.40%	7.45%	5.05%	$23,781.17
February 1, 2021	Six Months	$462,687.76	1.75%	7.45%	5.70%	$26,373.20

[165] Upon a review of the mortgage renewal options submitted by the bank, there were numerous options proposed for fixed rate mortgages or variable-rate mortgages. In all circumstances, the six-month open mortgage was the highest interest rate at 7.450%. The applicant, in calculating the sum owed by the respondent, has calculated the difference in the amortization that was offered and the amortization that was imposed by the bank for the failure of the parties to agree on the terms of a mortgage renewal.

[166] The applicant did not pay $90,631.36 to the Royal Bank of Canada from August 1, 2019 to July 31, 2021. The mortgage renewal agreement dated June 28, 2019 indicated that the existing mortgage was a two-year fixed closed mortgage with an interest rate of 2.540% and a principal and interest payment of $1,379.97 per month, with the maturity date of July 31, 2019. By not signing the mortgage renewal agreement the principal and interest payments increase to $1,942.98 per month. This process continued with the principal and interest payment varying to $1,948 .98 per month as of February 2020, $1,953.84 as of August 1, 2020 and $1,959.89 as of February 1, 2021.

[167] The mortgage renewal agreements provided a variety of fixed rate mortgages and variable-rate mortgages. The existing mortgage as of July 31, 2019, was a two-year fixed closed mortgage. The applicant’s calculation does not utilize a two-year fixed closed mortgage. Rather, the applicant has simply selected the lowest interest rate offered to determine the interest rate that was available. There is no evidence that the parties had any discussion about the length of the mortgage or its terms. In August 2019, the rate chosen by the applicant was a four-year fixed closed mortgage at 2.890%. For February 1, 2020, he selected a one year fixed closed mortgage at 3.640%. For August 1, 2020, he selected a two-year fixed closed mortgage at 2.510% and for February 1, 2021, he selected a five-year variable-rate closed at 1.750%. I do not find that it is fair and reasonable for the applicant simply to select the lowest interest rate, irrespective of the term of the mortgage and apply the difference in the interest rate calculation against the principal of the mortgage. Consequently, this claim is denied.

Capital Loss

[168] By letter dated May 19, 2017, the applicant and Flaherty LLP agreed that the applicant would be resigning as a partner as of May 26, 2017. One of the terms of the agreement was that the applicant would receive $300,000 on or before July 31, 2017, which represented a portion of his capital investment of $378,125. Further, the applicant was to receive $90,000 representing 1/5 of the fair market value of a real estate property owned by the firm to be paid on or before January 31, 2018.

[169] In January 2016, the applicant testified he financed the purchase of an additional amount of equity in his firm by having a reduction in his draw. From January 2016 to May 2017, the applicant’s draw was reduced by $78,125. The applicant submits that he suffered a loss of $78,125 representing the amount deducted from his weekly draw that was not repaid in the settlement upon his departure as a partner. The applicant argues that the respondent is responsible for half of the $78,125 being the sum of $39,062.50 and that said sum shall be credited as support in 2017 or that the respondent pay to the applicant the sum of $39,062.50.

[170] I deny this claim. The respondent was not aware of and did not participate in the negotiation of the termination agreement. Further, in his 2017 income tax return, the applicant claimed a capital loss of $69,185.08 related to his equity share in Flaherty LLP. The applicant was able to utilize the capital loss against a capital gain of $54,762.06 resulting in a capital loss of $14,423.02 of which $7,211.51 was a net capital loss.

[171] Finally, the applicant retained his draw in Flaherty LLP from January 1 to May 26, 2017. The applicant failed to disclose how much of a draw he received and did not explain why he agreed to waive the full reimbursement of his capital contributions including the $78,125. As previously stated, the applicant had an obligation to provide that disclosure and I draw an adverse inference against him.

Carrying Costs of the Mortgage, Taxes and Property Insurance on the Matrimonial Home After the Date of Separation

[172] The applicant submits that the respondent should reimburse the sum of $105,698.16 representing half of the total payments made by the applicant in the amount of $211,383.24 as follows:

a. Mortgage payments for $187,134.03 from the date of separation to May 1, 2021.

b. Property taxes in the amount of $9029.88 for the period of January 1, 2016 to August 1, 2019.

c. Property insurance in the amount of $14,239.83 for the period of January 1, 2017 up to and including May 1, 2021.

[173] The respondent submits that the applicant should reimburse her the sum of $59,544.27 representing half of the total payments made by the respondent in the amount of $119,088.54 as follows:

a. Mortgage payments from the date of separation to 2017 in the amount of $79,841.28.

b. Property taxes from the date of separation to 2017 in the amount of $30,999.

c. Property insurance from 2014 to 2017 in the amount of $8,248.54.

[174] I find that the mortgage payments made in the respective years started in 2015 with a total of $32,786.40; in 2016, total was $32,063.69, 2017, total was $35,482.53 and in 2018, total $35,879.22. The yearly mortgage payments were consistent amount based on the terms of the mortgage. However, starting in August 2019, the monthly mortgage payments were increased by the bank imposing an interest rate and monthly payment based on the parties not signing a new mortgage term. In 2019, the mortgage payments increased the $42,452.30, in 2020, total $50,714. 94 and up to the beginning of May 2021, total of $21,540.64.

[175] The applicant’s position is that he wants a full accounting from the date of separation to May 2021 and thereafter. The respondent’s position is that she is seeking an accounting of the parties’ respective contributions to the end of 2017. The respondent submits that starting in January 2018, The applicant should assume all of the expenses of the matrimonial because he could no longer afford to pay child or spousal support, was running into significant debt but still refused to list the home for sale. She submits there must be ramifications for the applicant refusing to pay support in favour of paying for the carrying costs of the matrimonial home.

[176] I reject the respondent’s position. The respondent had ample opportunity in 2017, 2018, 2019 and 2020 to file a motion for the partition and sale of the matrimonial home. She failed to do so. When the mortgage needed renewal in June 2019, the respondent refused to sign the renewal forms causing the payments to increase.

[177] I accept that the applicant paid $211,283.24 towards the carrying costs of the matrimonial home while the respondent paid $119,088.54 as set out herein. The difference of $93,077.80 should be shared resulting in the respondent owing the applicant $46,538.90 up to May 1, 2021. A further accounting will be required up to the date of the sale of the matrimonial home as I order the applicant to continue to pay the carrying costs of the matrimonial home until its sale.

Postseparation Expenses for Honda Odyssey

[178] The applicant is entitled to claim as a postseparation adjustment the sum of $5,518.12 directly resulting from by the respondent’s refusal to return the van and incurring payments due and excess wear and tear charges. In addition, I find the applicant is entitled to the $2,500 charge for repossessing the van and returning it resulting in a total credit of $8,018.12.

Postseparation Payments made by the Applicant to the Royal Bank for the Joint Capital Loan

[179] The applicant and the respondent jointly borrowed $300,000 for the applicant’s purchase of his equity share in his law firm. One of the terms of the loan was that only interest was paid monthly. The applicant paid the interest only payments until the loan was paid in 2017. The applicant seeks an order that the respondent reimburse him $8,244.25 representing half of the interest that he paid on the joint loan from August 12, 2014 until the loan is paid off in 2017.

[180] The applicant was not cross-examined on this issue and the respondent did not address this issue in her testimony. As such, I accept that that the applicant paid $16,488.50 postseparation on the interests only portion of said loan. As such, the respondent is responsible to reimburse the applicant half of the debt resulting in an amount of $8,244.25.

Storage Locker

[181] In 2020, the applicant commenced proceedings to have access to a storage locker where the respondent had placed some of his personal items after she left the matrimonial home. The applicant became aware that the locker was going to be auctioned for nonpayment of rent. He had not had access to the locker to retrieve his personal items. Consequently, he commenced proceedings and negotiated with the owner of the storage locker. The applicant claims $2,000 representing the applicant’s costs such as the rental cost for a U-Haul trailer, filing fees for the small claims court, $100 for gift cards for friends of the applicant to help him move some contents, process serving fee of $50, the actual storage cost of $400 and general damages of $1,000. The respondent submits this this claim is not properly before the court as it is a separate cause of action that is not related to the calculation of the net family property and it is not a postseparation expense.

[182] I agree that this claim is not properly before this court and is dismissed. The events giving rise to this cause of action are postseparation but are not related to a joint liability but rather a separate cause of action.

Expenses Paid by the Applicant With Respect to the Matrimonial Home

[183] During closing submissions, the applicant provided a chart sitting at his claim against the respondent for $36,843.68 for expenses incurred by the applicant related to the matrimonial home. The list is set out herein:

1. July 16, 2016 $138.98 to Canadian tire to purchase home maintenance.

2. November 28, 2016 $187.58 Dyson vacuum repair.

3. March 24, 2017 purchase of a freezer and refrigerator the amount of $4144.83.

4. April 10, 2017 Enbridge gas $200.

5. April 10, 2017 Ottawa Hydro $200.

6. April 27 Enbridge gas $200.

7. May 23, 2017 Ottawa Hydro $135.48.

8. June 19, 2017 Enbridge gas $500.

9. June 19, 2017 Ottawa Hydro $500.

10. December 7, 2017 door repairs $45.20.

11. December 7, 2017, eBay $19.21 to repair the phone.

12. December 7, 2017 Best Buy $1,172.92 to purchase a replacement TV.

13. December 11, 2017 repair to water system $467.99.

14. December 12, 2017 HVAC repair $146.89.

15. December 13, 2017 Enbridge gas $476.89.

16. December 22, 2017 doorbell $194.92.

17. December 30, 2017 melamine edge cover for laundry room $3.72.

18. December 30, 2017 repair parts $36.76.

19. January 6, 2018 replacement screen for dryer $29.09.

20. January 7, 2018 replacement parts to repair telephone system $29.83.

21. January 11, 2018 replacement Post lamp $187.57.

22. January 18, 2018 HVAC repairs $396.83.

23. January 22, 2018 HVAC repairs 328.27.

24. February 7, 2018 rear deck light $65.98.

25. February 8, 2018, floor, furniture and wall repairs of $3,616.

26. February 13, 2018, HVAC repairs $604.55.

27. February 24^th, 2018, television repair $339.

28. March 23, 2018 garage door repair $5,389.56.

29. April 26, 2018 control for system repair $141.25.

30. June 4, 2018, television repair $1,225.99.

31. June 6, 2018 irrigation repair $207.75.

32. June 28, 2018 HVAC repair $245.78.

33. July 10, 2018 irrigation repair $692.13.

34. August 10, 2018 floor, furniture and wall repairs $5,701.32.

35. September 24, 2018 fireplace repair $451.98.

36. September 24, 2018 roof and attic raccoon problem $1,827.21.

37. November 2, 2018 dryer vent repair $152.56.

38. November 2, 2018 fireplace repair $168.37.

39. August 28, 2019 garage floor repair $6,271.50.

[184] In reviewing the applicant’s list, many of the expenses relate to utility expenses for the matrimonial home, the purchase of a replacement TV, repairs to a TV, minimal expenses as low as $3.72 for the purchase of a piece of melamine , the purchase of furniture repairs to the matrimonial home, and many other repairs, that were incurred after the applicant had exclusive possession of the matrimonial home on December 8, 2017. There is no evidence that the applicant advised the respondent that he was incurring these expenses or that the respondent’s consent was obtained before the expenses were incurred. As the respondent’s consent was not obtained, I will not order her to contribute to any such expenses. The respondent does consent that she is responsible for half of the value of the purchase of the new refrigerator being $2,072.41.

[185] All of the other expenses, the applicant either undertook of his own free volition or they were part of the regular wear and tear of a home. Other expenses, like replacing TVs, are items that he retains today and has had exclusive usage of since purchase. Items such as the repair of the garage floor was an expensive undertaking that he never sought consent from the respondent. There was no evidence that he was required to undertake the repairs. Many of the other expenses under $200 such as wood for the laundry room, replacement of a doorbell and the like, are expenses that are part of the normal maintenance of a home.

[186] With respect to the applicant’s cost of $5,389.56 to repair the garage door damaged by the respondent, the applicant testified that the deductible on the insurance policy for the damage was $1,000. The applicant testified that he did not make a claim under the insurance policy, did not discuss the issue with the respondent but paid the expense. I find that the respondent is responsible to pay for the deductible of $1,000. The applicant should have discussed the issue with the respondent and made a claim under the policy or they should have agreed to incur the cost to repair the garage door. The applicant cannot make the decision himself and then claim the cost against the respondent.

Occupation Rent

[187] In his submissions, the applicant has claimed “Occupancy Rent” for 1213 days being from August 14, 2014 to December 8, 2017 in the amount of $29,909.59 being 50% of $1,500 a month in rent. The applicant submits that he should pay occupancy rent to the respondent for 1278 days from December 1, 2017 to May 31, 2021 in the amount of $31,512.33 being 50% of $1,500 a month in rent. The applicant submitted that he is prepared to pay occupancy rent in the amount of $1,500 a month from June 1, 2021 to the date of the closing of the matrimonial home and the payment for the rent coming from his half of the equity in the matrimonial home.

[188] The applicant did not claim occupation rent in his pleadings nor did he address it in his opening statement. No evidence was provided during the trial as to what the fair market rent would be of the property or what the expenses that are to be deducted from the fair market rent to be able to have an initial value of the rental value of the property. I deny this claim.

Disability Tax Credit

[189] The applicant seeks an order that the respondent pay him $20,000 to be paid from her half of the equity in the matrimonial home for the disability tax credit that she received for the years 2013 to 2016. The applicant submitted that, in mediation, the parties agreed that the respondent would apply for the years 2013, 2014 and 2015 to obtain the disability tax credit and that the parties would share in whatever the credit was. The respondent denies that there was ever any such agreement.

[190] I accept that there was a discussion that the respondent would apply for the non-refundable tax credit to be applied to the respective income tax return. I accept the respondent’s evidence that there was no agreement that they would share in a lump sum amount related to the disability tax credit. I accept the respondent’s evidence that the respondent did not receive a lump sum payment related to her disability tax credit. Rather, the disability tax credit was applied to the respondent’s tax returns for the years 2013 to 2016. The burden of proof is on the applicant to prove that the respondent received a lump sum amount related to the disability tax credit. The applicant is not provided any evidence as to what lump sum amount was received by the respondent. As such, this claim is dismissed.

Money Owed by the Applicant to the Respondent Related to the 2015 Income Tax Year.

[191] During his testimony, the applicant admitted that he owes the respondent $6,000 because she had to pay more income taxes after he declared additional support that was supposed to be non-taxable in his 2015 income tax return. Unfortunately, the applicant deducted the additional amount from his income tax return triggering a reassessment to the respondent. Despite the expense being incurred over five years ago, the applicant has not reimbursed the respondent and proposes to do so as a postseparation adjustment. I order that the applicant pay to the respondent $6,000.

Summary

[192] Once I receive the Divorcemate calculations from the parties, I will issue supplemental reasons to address the issue of child/spousal support including any arrears or credit owing and life insurance.

[193] I find that the applicant owes the respondent, to date, the following amounts:

a. $134,868.13 for an equalization payment

b. $6,000 related to the increased tax liability for the year 2015

[194] I find that the respondent owes the applicant, to date, the following amounts:

a. $46,538.90 owing to the applicant for the carrying costs of the matrimonial home up to May 1, 2021.

b. $8,018.12 owing to the applicant for the Honda Odyssey expenses.

c. $2,072.41 owing to the applicant for half of the purchase price of the refrigerator.

d. $1,000 owing to the applicant for the deductible on the garage door damage caused by the respondent.

e. $8,244.25 for half of the interest only payments on the Royal Bank of Canada capital loan.

[195] The remaining adjustments are with respect to child support, Section 7 expenses and spousal support. Those issues will be addressed once I receive the supplemental submissions from counsel.

COSTS

[196] The issue of costs will be deferred until the final reasons for judgment have been issued. The cost award of $7,000 owed by the respondent to the applicant shall be addressed in my cost endorsement for the trial.

Released: October 12, 2021 APPENDIX

Paragraph 1 was amended to:

[1] These parties started living together in December 2009, married on September 11, 2010, had their first child in 2012, twins in 2013 and separated in August 2014. Litigation started in May 2016 and the matter finally went to trial in May 2021. The only witnesses during this trial were the parties.

Paragraph 7 was amended to:

[7] In 2011, the respondent became pregnant with the parties’ first child, Matthew, who was born in 2012. In the winter of 2013, the respondent became pregnant with twins. The parties agreed that they needed a bigger house and on August 1, 2013, the parties purchased, as joint tenants, the matrimonial home in Richmond, Ontario. The twins, Charlotte and Patrick, were born in 2013. After the birth of the twins, the respondent was the primary caregiver of the children as she was home on maternity leave.

COURT FILE NO.: FC-16-1046

DATE: 2021/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Micheal Switzer

Applicant

– and –

Colleen Switzer

Respondent

amended REASONS FOR judgment

Shelston J.

Released: October 12, 2021