COURT FILE NO.: FS-17-418668

DATE: 20211021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA MOLKA

Applicant

– and –

PETER ANDREW MOLKA

Respondent

Self-represented, Applicant

Steven M. Fehrle, for the Respondent

HEARD: April 12-16 & 19, 2021

M.D. Faieta j.

reasons for decision

[1] The parties had a traditional marriage of about 37 years where the Applicant wife gave up working outside the home to care for their daughter after her birth while the Respondent worked in the construction industry. The parties are of modest means. The Respondent has two pensions. The parties own a house that they estimate has a value of about $400,000.00. The main issues at trial were whether the house should be sold, the amount of spousal support to be paid to the Applicant and whether there should be an unequal division of their net family property.

BACKGROUND

[2] The Applicant wife is 64 years old. The Respondent husband is 61 years old.

[3] The Respondent graduated high school in 1979. After three years of training and several years of apprenticeship, he became a certified ironworker in about 1983. He continued to work as ironworker for about the next 35 years.

[4] The parties commenced cohabitation in July, 1980. They were married on July 14, 1981.

[5] At the time of their marriage, the Applicant worked as a receptionist at an ad agency in Toronto. The Applicant progressed from being a receptionist and was assigned greater administrative responsibilities.

[6] The parties purchased their first home in 1981 in Newcastle, Ontario for $75,000.00. The Respondent’s mother gave $65,000.00 towards the purchase of the house. The Respondent contributed $10,000 towards the purchase. The property was sold in 1987 for $123,500.00.

[7] Their daughter, Gina Molka, was born in December, 1985.

[8] The parties that purchased, as joint tenants, a house located at 58 Marion Street, Toronto for $220,000.00 on May 28, 1987. A mortgage of $75,000 was used to finance the purchase. A further mortgage of $50,000 was placed on title in 1994. The Respondent states that these funds were used to pay down high interest loans taken incurred by the Applicant to finance her gambling habit.

[9] In December 2006, a demand loan of $250,000 replaced the earlier charge. The Respondent states that the majority of the proceeds of this loan were used by the Applicant for gambling.

[10] In September 2008, a demand loan of $750,000 replaced the earlier charge. The Respondent states that the Applicant took all the money from that loan for gambling purposes. He was unaware that she had done so until his bank manager called him to tell that the Applicant wished to increase the limits of the loan. The Respondent states that the Applicant told him that she owned ½ of the house and that she told him that she would never touch his pension.

[11] In 2008, the Respondent went to a Responsible Gamblers’ Office at Casino Woodbine for the purpose of seeking help for the Applicant. He inquired about the voluntary Self-Exclusion List. The Applicant refused to add herself to this list. The Respondent states that he did not end the marriage in 2008 because she told him that she loved him and that he “fell” for her lies.

[12] In July 2009, the parties sold the Marion Street house for $765,000.00. The Respondent states that they wanted a new start. The parties purchased a townhouse at the Grand Harbour Condominiums in Toronto for $362,000.00. A demand loan of $100,001.00 was registered.

[13] In March, 2010 a mortgage of $300,000.00 was registered on the Marion Street property which replaced the earlier $100,001 mortgage. The Respondent states that the mortgage was taken to pay off a line of credit and credit cards that had been used by the Applicant to pay for gambling. He states that she promised not to gamble again.

[14] The parties sold the townhouse in November, 2011 for $440,000.00. The proceeds of sale were allocated to: 1) RBC - $88,797.50 for the mortgage and $171,152.42 for the line of credit; 2) $158,358.42 to the parties; 3) balance to closing costs. The Respondent states that $171,152.42 on the line of credit was placed into the Applicant’s bank account.

[15] In December, 2011, the parties moved to a rental condominium located at 24 Southport Street, Toronto

First Retirement – Ironworkers Pension Plan

[16] The Respondent retired on April 1, 2012 at the age of 51. He received a full pension from the Ironworkers Ontario Pension Plan that paid him the gross amount of $6,306.50 per month comprised of $4,779.71 per month plus $1,526.00 per month to bridge to age 65 when he will be eligible for CPP and OAS. Under the terms of this pension, the Applicant would, after the Respondent’s death, receive a survivor benefit on a monthly basis that was equal to the monthly pension paid to the Respondent.

[17] The Respondent states that the parties ran into financial problems almost immediately. The Applicant spent about $27,000 on their joint credit cards mostly in the form of cash advances. She did not tell him why she incurred these charges. However, the Respondent states that the Applicant was using these funds for gambling. He states that he did not use their joint credit cards nor did he drawn from their RBC Line of Credit. The Respondent states that he did not separate from her at that time because of the way the Applicant spoke to him. He thought that they would have a new start.

[18] The Respondent states that shortly after his retirement the Applicant called recruiters to arrange for him to return to work in Cold Lake, Alberta. He did not go. However, he resumed working in August, 2012. He found work in construction pre-cast (as opposed to ironworking) with RES Precast Inc.

[19] In March, 2013 the parties moved from 24 Southport Street to a rental condominium located within the Palace Pier Condominium at 2045 Lakeshore Boulevard, Toronto

[20] In April, 2014, at the Respondent’s initiative, the parties purchased a small house in Fort Erie, Ontario in need of repair for $95,000.00. (the “Fort Erie Property”)

[21] The Respondent states that the balance of the RBC bank account, being about $156,000, vanished. The Applicant has never told him where it went, however he suspects that she spent it gambling.

Separation and Commencement of this Application

[22] The parties separated on March 9, 2017 however they continued to live together in their Palace Pier apartment for the next five months.

[23] The Applicant states that until February, 2017, the Respondent directly paid for their living expenses and also provided the Applicant with $1,500.00 per month to meet her personal needs. She states that after they separated, the Respondent stopped giving the Applicant any money.

[24] On April 3, 2017 the Applicant commenced this Application for an order that the Respondent pay spousal support at the high-end of the range of the SSAGs, the Respondent continue to maintain the Applicant as a beneficiary on the benefits available to him through his employer, designation as an irrevocable beneficiary of a life insurance policy in an amount sufficient to secure the payment of spousal support, equalization of net family property and an order for the immediate sale of the Fort Erie Property.

[25] On June 19, 2017, the Respondent filed an Answer and claimed a divorce, an unequal division of net family property, a constructive trust in the Applicant’s interest in the Fort Erie Property and a division of household contents or compensation in lieu thereof.

[26] On June 26, 2017, the Applicant filed a Reply.

[27] On July 26, 2017 a Case Conference was held. Ferguson J. ordered that a motion could be brought for spousal support, sale of the Fort Erie Property and any other issue.

[28] The Respondent states that he told the Applicant in June, 2017 that he intended to retire when he turned 57 years old in October, 2017 because he was tired and worn out from the construction work that he had been doing for about 40 years. The Respondent states that by that time he had developed numerous ailments including chronic pain in his lower back and left ankle.

[29] On August 15, 2017 the Respondent moved from the Palace Pier apartment to the Fort Erie Property/

Separation Agreement

[30] On September 1, 2017, the parties signed a “Separation Agreement” that states:

1.4 They agree to be bound by this Agreement which settles the issue of support between them during their period of separation.

2. Commencing September 1, 2017, on the 1^st day of each month thereafter, Peter agrees to pay Patricia’s monthly expenditures, including but not limited to:

a) Rent and any increase thereof; b) Phone and internet; c) Groceries (approximately $500.00); d) Car insurance; and e) All other miscellaneous expenses (agreed upon approximate amount of $1,500.00)

3. This Agreement does not limit Patricia’s ability to apply for spousal support under the Divorce Act; …

19.14 This Agreement was prepared jointly by the parties and their solicitors.

[31] The Applicant states that she demanded that the parties sign a Separation Agreement because she was concerned about how she would pay for her living expenses. The Separation Agreement shows that the parties signed that document with witnesses. The Applicant states that the signature on the Separation Agreement does not appear to be her signature. She also states that she made a complaint to the Law Society of Ontario about her lawyer at that time, Anna Okorokov, as she felt that the Respondent’s pensions should have been addressed in that agreement. The Applicant also stated that the Respondent did not have a lawyer with him at the time that they signed the Separation Agreement and that she had no knowledge of whether Mr.Fehrle had been involved in advising the Respondent about the Separation Agreement.

[32] The Respondent states that he did not obtain independent legal advice before signing the Separation Agreement nor was he advised to obtain independent legal advice. The Respondent states that he did not fully understand the Separation Agreement and that the Applicant “pressured him” into signing the Separation Agreement. At the time that he signed the Separation Agreement, the Respondent was earning about $182,000 per year.

[33] Pursuant to the Separation Agreement, the Respondent paid about $3,570.50 directly or indirectly to the Applicant. In addition to paying the Applicant the sum of $1,500 per month for “miscellaneous expenses”, he paid the following amounts monthly for the Applicant’s benefit:

• Rent of $1,700.00 for the Palace Pier apartment;

• Landline telephone costs of $30 per month and Internet costs of $70.00 per month;

• Car insurance costs of $121.00 per month;

• 50% of property tax on Fort Erie Property: $83.50;

• 50% of home insurance costs on Fort Erie Property: $36.00;

[34] The financial provisions of the Separation Agreement are unusual. I find that they represented a temporary arrangement that could superseded by an order for spousal support.

Second Retirement – Labourers’ Union (“LIUNA”) Pension

[35] The Respondent retired from his employment with RES Precast Inc on March 30, 2018. He had earned about $75,000.00 per year in employment income. With his retirement he was entitled to a pension of about $15,000 per year from LIUNA.

[36] As a consequence of his income being reduced due to the retirement from RES Precast, the Respondent paid the Applicant $500.00 less for “miscellaneous expenses” in each of March, April and May, 2018.

Applicant Mother’s Motion for Temporary Spousal Support and Other Relief

[37] On May 17, 2018, the Applicant’s motion for temporary spousal support and other relief was heard. Justice Del Frate adjourned the motion to July 5, 2018 on the following terms:

• The Respondent shall pay arrears of spousal support in the amount of $1,500.00 to the Applicant within 7 days;

• The Respondent shall “… continue paying spousal support in the sum of $4,125.00 monthly until further order of this court”;

• The Respondent shall pay the Applicant’s disbursements of $480.49 upon proof of same;

• Questioning to be held prior to the return of the Applicant’s motion

• Costs reserved to the motions judge.

[38] The Applicant’s motion did not proceed on July 5, 2018.

Respondent Husband’s Motion for Reduction in Temporary Spousal Support and Other Relief

[39] On July 9, 2020 the Respondent brought an urgent motion for the reduction in temporary spousal support and for the sale of the Fort Erie Property. On August 20, 2020, the court determined that the motion was not urgent and directed that a settlement conference be held. On October 30, 2020 a settlement conference was held. The court scheduled the Respondent’s motion to be heard on January 26, 2021.

[40] On January 26, 2021, the Respondent’s motion was heard. The Applicant sought an adjournment until April, 2021 for several reasons: (1) that a case conference rather than the hearing of the motion had been scheduled for that day; (2) she was in the process of retaining counsel; (3) she did not have a computer to connect to the virtual courtroom on a Zoom platform; (4) she lacks the financial resources to respond to the motion; (5) she is occupied in caring for her elderly father. Justice Sanfilippo granted a contested adjournment but also exercised his authority to schedule a trial so that all issues raised by this Application would be finally determined. He stated:

The adjournment provides fairness to Ms. Molka by providing an opportunity for her to retain counsel and prepare for substantive determination of the issues raised by this Application. Should Ms. Molka not retain counsel the adjournment provides her with time to prepare for trial, knowing as she does now, that all issues will be determined at that time at trial. This will provide a timeframe for full adjudication of all issues that she pleaded almost four years ago against the Respondent, Mr. Molka. …

Ms. Molka ought not to expect that any further adjournment of the hearing of the issues raised by her in this Application will be granted. The issues pleaded in the Application need to be finally adjudicated and, by the time of trial, this Application will be four years old. I encourage Ms. Molka to use the time made available to her through this adjournment to carry through with her intention to retain counsel and, if not, to prepare her case for trial as a self-represented Applicant with the understanding that issues in this Application will be determined in the trial commencing April 12, 2021.

[41] A trial management/settlement conference (“TMC”) was held on March 31, 2021. The Applicant was self-represented. The Respondent noted that the Applicant had not served or filed the necessary court documetns for a settlement conference on October 30, 2020, a motion on Juanuary 26, 2021 and this TMC. He further noted that the Applicant had not served or filed a Trial Record. At the TMC, Justice Horkins made numerous orders:

1. The Applicant shall have a reliable internet connection that she can use for the duration of the trial on ZOOM that includes her ability to participate with a camera and sound. Using her cell phone is not sufficient;

2. No later than April 6, 2021, the Applicant shall provide the Respondent with a list of witnesses that she intends to call at trial with a summary of the evidence she expects each witness to give. If the Applicant does not comply with this order, she will not be permitted to call any witnesses unless the trial judge permits her to do so;

3. All documents to be used at trial must be produced to the other party by April 6, 2021;

[42] A few days prior to the commencement of this trial, I issued an Endorsement on April 7, 2021 which provided the Applicant with the link to A Guide to Process for Family Cases at the Superior Court of Justice and referenced the ten pages that provide an overview of the trial process including the preparation of a trial record and document brief, as well as how to behave in court.

[43] On April 8, 2021 a brief conference call was held with the parties. The Applicant stated that she remains without internet access. She had recently purchased a computer on the Home Shopping Network and was awaiting its delivery. The Applicant had not delivered her list of witnesses nor a summary of their intended evidence as ordered. Further, she had not delivered any of the documents that that intended to use at trial. In addition, the Applicant expressed difficulty with uploading her documents to Caselines for the court’s use at trial. I directed that she email her documents to the Trial Coordinator. I issued an Endorsement on April 8, 2021 which directed that the Applicant make better use of the remaining time before trial to prepare for trial and deliver the required documents given that this trial date had been set on January 26, 2021.

ANALYSIS

[44] The following issues were addressed at trial:

• Should amicus curiae be appointed?

• Should each party be permitted to add a claim for occupation rent?

• What amount of spousal support should be paid to the Applicant?

• Should there be any retroactive adjustments to the spousal support and arrears of spousal support?

• Should the Fort Erie Property be sold notwithstanding that the Applicant wishes to continue to reside in that house?

• Should there be a non-equal division of their net family property because of the Applicant’s admitted gambling habit that resulted her in allegedly spending $1 million of their savings?

SHOULD AMICUS CURIAE BE APPOINTED?

[45] On the first day of this trial, the Applicant brought an oral motion, without notice, for an order appointing a lawyer to represent her at trial.

[46] This court’s authority to appoint a lawyer appointment of amicus curiae in a private family law case was addressed by the Ontario Court of Appeal in Morwald-Benevides v. Benevides, 2019 ONCA 1023, paras. 25-40. The following principles govern the exercise of this discretion:

• a court may appoint a lawyer as 'amicus curiae', a 'friend of the court', to assist the court in exceptional circumstances;

• amicus curiae may be appointed only when a lawyer’s assistance is required to ensure the orderly conduct of proceedings and the availability of relevant submissions; in other words, the assistance of amicus curiae must be essential to the adequate discharge of the judicial functions in the case;

• the amicus curiae is bound by a duty of loyalty and integrity to the court and not to any of the parties in the proceeding; he or she does not represent the party and thus cannot be discharged by the party;

• there are situations in which the appointment of amicus curiae might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice;

• the authority to appoint amicus curiae should be used sparingly and with caution, in response to specific and exceptional circumstances;

• amicus curiae should not be appointed to “level the playing field” merely because the other party is represented by a lawyer;

• the trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party's case would not be presented quite as effectively as it would be by counsel;

• a trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case;

• a trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents, and doing the same with respect to the other party's pleading, financial statement, and pertinent documents, requesting the party's responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine; this active approach on the trial judge's part can only work if the judge explains the purpose and nature of the exercise beforehand, and maintains a calm and impartial temperament throughout. The trial judge should not cross-examine a party. Doing so would cross the line into the adversarial representation of a party, which would give rise to possible bias allegations;

• Importantly, it is only in rare cases that the assistance provided by the trial judge will be insufficient to ensure trial fairness. Only then might the appointment of amicus be considered;

• Sixth, it will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus's duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege, as in Imona-Russel, at para. 89;

• Finally, the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus's duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits;

• Ideally the need for amicus can be identified and considered at the pre-trial case management conference, but sometimes the need only becomes evident at trial. A case management judge or a trial judge faced with a trial that might require the appointment of amicus should prepare an order detailing the expected role and work of amicus. Amicus could, for example, be asked to lead some evidence, cross-examine a witness, or make submissions on specific issues. The goal should be to use the services of amicus only where and to the extent necessary. The order would be a work in progress and would be open to change as circumstances demand, with changes made formally on the record.

[47] In this proceeding, the Applicant has been represented by several lawyers. At the time that she commenced this Application, the Applicant was represented by Murray Lightman. By April 2018, the Applicant was represented by Anna Okorokov. By November, 2018, the Applicant was represented by Kathryn Wright however that retainer ended by February, 2019. The Applicant briefly retained Barry Nussbaum for several weeks prior to November 1, 2019.

[48] Two liens were registered by Legal Aid Ontario on title to the House – the first on October 1, 2018 and the second on May 13, 2019.

[49] The Applicant states that she has a Legal Aid Certificate that permits her to retain counsel for this matter however she has been unable to find a lawyer that would represent her. The Applicant has been self-represented since July, 2020 when the Respondent brought a motion to reduce spousal support and to sell the House. She has been self-represented at the several court attendances, including the motion and the TMC.

[50] The Applicant stated that she should have a lawyer because the Respondent has a lawyer and she is no match for him. She also stated that she was unfamiliar with legal proceedings and had no idea how to present her case.

[51] I dismissed the Applicant’s motion as I found that this was not one of those rare cases where amicus curiae should be appointed.

[52] The Applicant was able to explain why she was entitled to spousal support and why she believed that she should receive $3,500 per month in spousal support. The Applicant submitted that the equalization of net family property, primarily the Respondent’s two pensions, should result in her being able to acquire the Fort Erie Property. On the other hand, the Applicant largely marched to her own tune and complied with court orders (whether to disclose the names of her witnesses, provide a summary of their evidence and the documents that she intended to rely upon at trial, etc.), if it all, as and when she saw fit. The court provided guidance to the Applicant (as it appeared that she had not read that Guide to Process for Family Cases that had been provided several days earlier) in respect of the identification of issues and the trial process (particularly, the examination of the witnesses and permissible questions and evidence (hearsay) and the use and acceptance of documents as evidence). In the end, five witnesses (including herself) testified for the Applicant.

OCCUPATION RENT

[53] At the TMC each party stated that they wanted to bring a claim for occupation rent from the other for the use of the matrimonial home. Justice Horkins ordered that a motion for permission to add those claims could be brought at the start of trial. The Applicant did not file a written notice of motion however the Respondent did. At the outset of trial, I ruled that the parties had the opportunity over several years to advance such claim and that it is inconsistent with Rule 2 of the Family Law Rules to grant such relief at the last possible moment when neither party has had sufficient opportunity to consider and respond to such claim. Both motions were denied.

SPOUSAL SUPPORT

[54] To reiterate, the Applicant seeks:

• An order that the Respondent pay to the Applicant spousal support at the high-end of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (the "SSAG")

• An order that the Respondent designate the Applicant as the irrevocable beneficiary of a life insurance policy in an amount sufficient to secure his spousal support obligations;

• An order that the Respondent continue to maintain the Applicant as the beneficiary on the benefits payable to him through his employment;

Analysis

[55] The award of spousal support under the Divorce Act is governed by section 15.2 which states:

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

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; and

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

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

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; and

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

[56] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.) at pp. 848-849, the Supreme Court of Canada stated:

[T]he purpose of spousal support is to relieve economic hardship that results from "marriage or its breakdown". Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects. [emphasis in original]

Entitlement to Spousal Support

[57] The parties agree that the Applicant is entitled to spousal support on account of the length of the marriage, her role as a homemaker and mother during the marriage and her health problems. The Applicant’s health problems include fibromyalgia and irritable bowel syndrome. The Respondent states that the Applicant is an intelligent person with good social skills and that she could earn $20,000 per year if she made reasonable efforts to seek employment. However, the Applicant states that her return to employment is untenable given her age, lengthy absence from the workplace, lack of job experience and physical disabilities. Without providing any supporting evidence, the Applicant stated that she has no savings and debts of $200,000.00. At the time of separation, the Applicant states that she had $4,750 in savings and debts of $27,000.00.

[58] I find that the Applicant’s claim for spousal support rests more largely on a needs basis rather than on a compensatory basis. While she does not have a degree or professional certification that would enable her to obtain employment as she asserts in her Application, there is nothing in the evidence that explains why she could not returned to work after their daughter reached middle school or high school age given that, as will be discussed later, the Applicant spent a considerable amount of time every week, if not every day, gambling at various casinos.

Amount and Duration of Spousal Support

[59] The amount and duration of spousal support to be awarded is to be determined on a case-by-case basis. However, the SSAG serves to inform the exercise of this discretion.

[60] Section 7 of the SSAG provides the following guidance where the parties do not have a dependent child:

The Without Child Support Formula

Amount ranges from 1.5 to 2 percent of the difference between the spouses’ gross incomes (the gross income difference) for each year of marriage (or more precisely, year of cohabitation), up to a maximum of 50 percent. The range remains fixed for marriages 25 years or longer, at 37.5 to 50 percent of income difference. (The upper end of this maximum range is capped at the amount that would result in equalization of the spouses’ net incomes — the net income cap).

Duration ranges from .5 to 1 year for each year of marriage. However support will be indefinite (duration not specified) if the marriage is 20 years or longer in duration or, if the marriage has lasted five years or longer, when years of marriage and age of the support recipient (at separation) added together total 65 or more (the rule of 65).

While the label may be unfamiliar, the concept of merger over time, which relates the extent of the spousal support claim to the length of the marriage, underlies much of our current law. Its clearest endorsement can be found in Justice L’Heureux-Dubé’s much-quoted passage from Moge:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the marital standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement… As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.

In long marriages where the formula generates the maximum range of 37.5 to 50 percent of the gross income difference the recipient can end up with more than 50 per cent of the spouses’ net income, notably where the payor spouse is still employed and subject to tax and employment deductions, and the recipient has little or no income. This result should never occur.

To avoid this result, shortly after the release of the Draft Proposal we began advising lawyers and judges to look closely at the net incomes of the spouses in these longer marriages when determining an appropriate amount within the range. We have now decided to modify the without child support formula itself by introducing a net income cap. The recipient of spousal support should never receive an amount of spousal support that will leave him or her with more than 50 percent of the couple’s net disposable income or monthly cash flow. [Emphasis in the original]

[61] Chapter 6 of the SSAG addresses income. With a few exceptions, the income for spousal support purposes follows the rules under ss.15-20 of the Child Support Guidelines.

[62] Neither party is currently employed. Each party suggested that I should impute income to the other party. I decline to do so.

[63] The Applicant strongly suggested that, at age 60, the Respondent should return to construction work or other work. The Applicant seems to have little regard for the Respondent’s welfare or physical condition. After about 40 years of doing physical work in the construction industry, the Respondent ended his second career in construction work in March 2018 at the age of 57.

[64] A letter from his family physician, Dr. Pouria Sadeghi, dated March 30, 2021 states that he has multiple ailments that negatively affect his ability to work. His letter states:

Mr. Molka suffers from chronic back pain. … In plain English, Mr. Molka’s spine has a multitude of chronic and acute problems the cumulative effect of which would make it very difficult and likely painful to perform any work requiring repetitive bending, twisting, heavy lifting, etc. [Emphasis added]

[65] His letter also goes on to describe other ailments including left groin pain caused by a large cyst, persistent pain in his left foot which has not improved using orthotics, pain in his wrists which is consistent with carpal tunnel syndrome and moderate to severe hearing loss, and poor eyesight which is addressed by the use of prescription glasses for distance and reading.

[66] The Respondent’s sister, Yolanda Molka, is a registered nurse. She testified that the Respondent has complained to her of lower back pain for the last 3 or 4 years and that he had difficulty bending and lifting objects. As well, he complained of ongoing difficulties walking as he has pain in his foot.

[67] I find that the Respondent’s early retirement in March 2018 was involuntary and due to the fact that he is no longer capable of physical labour.

[68] The Respondent states that, given his condition, he no longer has the ability to work in his field and has no work experience other than construction.

[69] The Applicant states that she unemployable because of her medical conditions. She relies on a letter from her family physician, Dr. Linda Weber, dated April 17, 2018, which states:

I have been provided care for her since 2010. I am writing to comment on her medical fitness for employment. Ms. Molka suffers from fibromyalgia, irritable bowel syndrome, interstitial cystitis, generalized anxiety disorder and frequent panic attacks. She also has a left eye choroidal nevus that is requiring close follow-up. More recently she has been investigated for a possible cardiac condition.

Ms. Molka suffers from chronic pain and anxiety. This severely impacts her sleep and her ability to function during the day. In addition, she can have periods of severe constipation followed by periods of diarrhea such that her life can be controlled by her bowels. She would not be able to meet the demands of consistent regular work requirements.

[70] . In any event, the Respondent less strenuously suggested that the Applicant should return to work. The Respondent notes that the above conditions do not appear to have interfered with the Applicant’s habit of gambling at casinos. He also states that she is very well spoken, very vocal and people-oriented and would do well in retail, customer service or telephone communications

[71] I conclude that it is not reasonable to impute employment income for employment to either party given the age, condition, training and experience. I think these parties would be unlikely to gain or maintain employment.

[72] At this point, the Respondent’s income is solely pension income. His total monthly pension income is $7,826.40. He receives a monthly benefit of $4,779.71 from the Ironworkers Pension Plan plus a bridging supplement until age 65 of $1,526.79. He also receives $1,519.90 per month from the LIUNA Pension Plan. The Respondent proposes to pay spousal support to the Applicant the sum of $3,912.75 per month which equals 50% of his total pension income.

[73] As can be seen from the DivorceMate calculation attached as Schedule “A”, the payment of $3,912.75 per month also represents the payment of spousal support at the high-end of the SSAG.

[74] In my view, the Respondent’s proposal represents in these circumstances, to use the language in Moge, an “equitable sharing of the economic consequences of divorce” that will allow each party to reasonably address their needs.

[75] Accordingly, I order that the Respondent shall pay spousal support to the Applicant on an indefinite basis commencing May 1, 2021 equivalent to 50% of his two employer pensions as follows:

(a) $3,153.25 per month from his Ironworkers Pension subject to pension adjustments in the future;

(b) $795.50 per month from his LIUNA Pension subject to pension adjustments in the future.

Retroactive Adjustment of Spousal Support

[76] The Applicant submits that his spousal support obligation should have been reduced once he retired from RES Precast Inc. in March 2018. His retirement pre-dated the temporary spousal support order made by Justice Del Frate.

[77] In Colucci v. Colucci, 2021 SCC 24, the Supreme Court of Canada ruled that there is a “… presumption in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice of an intention to seek a downward adjustment of the child support obligation, up to three years before formal notice is given of an application to vary.” This presumption would be displaced where the payor can show that its application would be unfair.

[78] In my view these principles equally apply when a payor seeks to retroactively decrease spousal support.

[79] The Respondent gave formal notice of his intention to seek an order to retroactively decrease spousal support on or about July 9, 2020. I am not satisfied on the evidence that effective notice of this request was provided to the Applicant earlier. Further, I do not find that this result is unfair as it was within the Respondent’s control to bring this motion earlier.

[80] Given the evidence regarding the amount of pension income received by the Respondent in 2020 and 2021, I find that the amount of spousal support to be paid by the Respondent for the period from August 1, 2020 to December 31, 2020 should be reduced from $4,125.00 per month, as ordered by Justice Del Frate, to $3,153.25 which represents 50% of the pension income received by the Respondent in that period. I also find that the amount of spousal support to be paid by the Respondent for the period from January 1, 2021 to April 1, 2021 should be reduced from $4,125.00 per month to $3,912.75, which represents 50% of the pension income received by the Respondent in that period.

[81] I also note that the Applicant claims that she did not receive $1,500 per month to meet her personal needs after the parties separated in March, 2017. Given that he paid their other living expenses directly until he moved out, I order that the Respondent pay spousal support in the amount of $1,500.00 per month from March 1, 2017 to August 1, 2017.

[82] Each party alleges an overpayment or underpayment of spousal support.

[83] In light of these findings regarding the proper amount of spousal support to be paid, I direct that each party provide their calculations, to a maximum of ten pages, within 15 days regarding whether there has been an overpayment or underpayment of spousal support for each of the following periods:

• From September 1, 2017 to May 30, 2018 on the basis that $4,125 per month was to be paid by the Respondent to the Applicant;

• From June 1, 2018 to July 31, 2020 on the basis that $4,125 per month was to be paid by the Respondent to the Applicant;

• From August 1, 2020 to December 31, 2020 on the basis that $3,153.25 per month was to be paid by the Respondent to the Applicant;

• From January 1, 2021 to October 20, 2021 on the basis that $3,912.75 per month was to be paid by the Respondent to the Applicant;

Deemed Spousal Support

[84] The Applicant seeks the following Order:

The Respondent shall be deemed to have paid the following amounts to the Applicant as spousal support for the following years:

2017: $35,710.00

2018: $44,510.58

2019: $48,738.48

2020: $30,161.48

2021: $3,488 per month x 4= $13,952.00

[85] The Applicant submits that these amounts were paid by the Respondent for the Applicant’s expenses. The Respondent acknowledged same at trial. There would be tax advantages for the Respondent and tax liabilities for the Applicant if all payments made pursuant to the Separation Agreement were characterized as spousal support. I decline to deem the payments made pursuant to the Separation Agreement as “spousal support”. First, such relief was not sought in the Answer. Second, the Respondent was unable to reference any caselaw that would support the granting of this relief. Accordingly, only those payments made pursuant to the Order of Del Frate J., dated May 17, 2018, are payments of spousal support.

Life Insurance Beneficiary

[86] The Respondent agrees to an order that he shall maintain the Applicant as his beneficiary under his existing life insurance policy through the Ironworkers’ Union if permitted by the plan.

SALE OF THE FORT ERIE PROPERTY

[87] In her Application, the Applicant claimed an order for the immediate sale of the Fort Erie Property. It should be noted that at the time that the Applicant made such request, she lived in an apartment in Toronto and the Respondent lived in the Fort Erie property. In his Answer, the Respondent agreed with this request. The Respondent explained at trial that he would like to have access to the equity in that house.

[88] At trial the Applicant abandoned this claim. However, the Respondent asks for the following order pursuant to the Partition Act:

The jointly-owned home of the parties municipally known as 72 Edward Avenue, Fort Erie, Ontario, L2A 5K3 (the “family home”), shall be listed for sale on or before May 15, 2021 with a mutually agreeable realtor at a listing price recommended by the realtor. The parties shall accept the first reasonable offer made on the family home. In the event of any dispute regarding the terms of sale, either party may seek directions from the Court by way of a motion for directions

[89] On April 16, 2014, the parties purchased the Fort Erie Property for $95,000.00. It is jointly held by the parties. The house needed a great deal of repair. The Respondent spent most weekends in Fort Erie repairing the house with Patrick Laing, a life-long friend, and others. There is no dispute that the Applicant rarely visited the house before separation. Mr. Laing’s evidence is that he saw her once at the house. The Respondent’s evidence is that the Applicant never attended. The parties separated on March 9, 2017. On October 31, 2019, the Applicant moved from her apartment at Palace Pier to the Fort Erie Property without notice to the Respondent or his approval. The Applicant and the Respondent slept in separate bedrooms and did not have a conjugal relationship. The circumstances were intolerable for the Respondent and on February 14, 2020 he moved out of the house and into an apartment in Fort Erie. Subsequently, on May 30, 2020, the Applicant’s step-father, Ronald Givogue, 84 years old, moved into the Fort Erie Property with the Applicant and continue to live there. He does not pay rent although the Applicant states that Mr. Givogue has helped her financially at various times.

[90] Under s. 3(1) of the Partition Act, R.S.O. 1990, c. P.4, a joint tenant may bring an application for the sale of land “under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested”.

[91] A court is required to compel the sale of a jointly owned property, including a matrimonial home, unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Kaphalakos v. Dayal, 2016 ONSC 3559, paras. 17-18, (Divisional Court); Marchese v. Marchese, 2019 ONCA 116, at para. 5.

[92] There is some overlap in the scope of the terms "malicious" or "malice", "vexatious", and "oppressive". "Malice" arises when a proceeding is brought for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A proceeding may be viewed as "vexatious" for numerous reasons including when multiple proceedings are brought to re-litigate an issue already decided or when a proceeding is brought to harass or oppress others rather than to assert a legitimate right. A motion for the sale of a matrimonial home is "oppressive" when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: See Hutchison-Perry v. Perry, 2019 ONSC 4381, at para. 35.

[93] The Applicant submits that she does not want to leave the family home as Mr. Givogue has various ailments and cannot live in an apartment given his physical limitations. The Applicant further states that she will not continue to live in Fort Erie if she is the family house is sold. Instead, she will return to Toronto and she fears that she will not be able to find affordable housing. There is nothing that compels the Applicant to live in Toronto. She could remain in Fort Erie, where rental accommodations are more affordable, but she no interest in doing so unless she remains in the house. I find that it would not be malicious, vexatious or oppressive to sell the house in these circumstances.

[94] Pursuant to the Partition Act, I order that the jointly owned property municipally known as 72 Edward Avenue, Fort Erie, Ontario, L2A 5K3 be sold on the following terms, unless this court otherwise orders or the parties otherwise agree in writing:

• By November 1, 2021, the Respondent shall provide the names of three real estate brokers and three lawyers located in Fort Erie, Ontario;

• By November 8, 2021, the Applicant shall notify the Respondent that she has selected one of the three aforementioned real estate brokers as the real estate broker to list the home for sale failing which the Respondent shall select one of the aforementioned three real estate brokers to list the home for sale;

• By November 8, 2021, the Applicant shall notify the Respondent that she has selected one of the three aforementioned lawyers to represent them solely in respect of the sale of the home failing which the Respondent shall select one of the aforementioned three lawyers to represent them;

• By November 15, 2021, the Applicant and the Respondent shall sign a listing agreement with the selected real estate broker;

• The parties shall list the home for sale at a price recommended by the listing broker;

• The parties shall accept and sign the first offer received by the listing broker that is within 5% of the listing price of the home and that the broker recommends that the parties accept;

• The closing of the sale of the home shall occur no earlier than 60 days after the agreement of purchase and sale is signed and no later than 90 days after the agreement of purchase and sale is signed;

• The proceeds of sale of the home shall be held by the lawyer in trust after payment of commissions, legal fees and disbursements, other proper costs of sale and liens and other encumbrances on title the home.

SHOULD THE RESPONDENT’S INTEREST IN THE IRONWORKERS PENSION AND THE LIUNA PENSION BE INCLUDED AS “NET FAMILY PROPERTY” OR SHOULD THE MONTHLY PENSION PAYMENTS BE DIVIDED AT SOURCE?

[95] The Ironworkers Pension was in pay at the time of separation. A Statement of Family Law Value for the Ironworkers Pension, dated July 30, 2018, states that:

• The Respondent’s pension, including bridging/supplemental benefit and surplus (if any) and excluding the former spouse’s survivor benefit, had a Family Law Value of $1,248,895.90 as of the date of separation;

• The Applicant’s survivor benefit had a Family Law Value of $130,131.88 as of the date of separation;

[96] A Statement of Family Law Value for the LIUNA Pension, dated June 13, 2018, states that the Respondent’s pension had a Family Law Value of $205,652.17 as of the date of separation. There is no reference to a survivor’s benefit and thus no value is given for it. It should be noted that the Respondent had retired almost three months before the valuation statement was issued.

[97] The Applicant has not updated Part 4(c) of her Net Family Property Statement to reflect the pension values.

[98] The Respondent’s last NFP, dated March 25, 2021, states that his two pensions are “in pay” and provides no value for them.

[99] The Applicant seeks to have the Family Law Values of the pensions included as part of the Net Family Property Statement which will then lead to the Respondent owing the Applicant an equalization payment in the vicinity of about $600,000 - $700,000. The Respondent submits that it is more appropriate to order the equal division of payments from each pension.

Analysis

[100] Under s. 9 of the FLA, the court can divide all net family property in a lump sum or in instalments over a period of up to ten years.

[101] The division of pensions is governed by s. 10.1 of the Family Law Act.

[102] Subsection 10.1(5) states:

If payment of the first instalment of a spouse’s pension under a pension plan is due on or before the valuation date, an order made under section 9 or 10 may provide for the division of pension payments but not for any other division of the spouse’s interest in the plan. 2009, c. 11, s. 26.

[103] Accordingly, given that the Ironworkers Pension was in pay before the valuation date (ie. the date of separation), a lump sum cannot be transferred out of the pension to the Applicant under s. 10.4(4) of the Family Law Act.

[104] Whether the court should do so, is informed by the factors described in s. 10.1(4) of the FLA which states:

In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. The nature of the assets available to each spouse at the time of the hearing.

2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.

3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.

4. Any contingent tax liabilities in respect of the lump sum that would be transferred.

5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

[105] In applying these criteria to the evidence in this case, the Respondent states that the only other valuable assets to the parties is the Fort Erie Property (worth about $400,000) and the Respondent’s RRSP (worth about $50,000). The bulk of the Respondent’s assets are the two pensions which total more than $1.2 million. There is no evidence regarding contingent tax liabilities in respect of a lump sum transfer. There is no evidence of other resources available to the parties. Both claim that they are unable to work. They have no significant savings and jointly own a house worth about $400,000.00. The two pensions, both the LIUNA pension and the Ironworkers Pension are virtually the sole resources available to meet their needs in retirement.

[106] In my view, it is appropriate in these circumstances to require a division of monthly pension payments from both the LIUNA pension and the Ironworkers Pension. This approach mirrors what the parties have been indirectly doing so their separation. It will provide financial security to both parties and remove the temptation for the Applicant to gamble away a large sum of money that represents her future financial security.

SHOULD A CONSTRUCTIVE TRUST BE PLACED ON THE APPLICANT’S INTEREST IN THE FORT ERIE PROPERTY?

[107] In April 2014, the parties jointly purchased the Fort Erie Property. It was intended to be a rental property and later a vacation for them. This purchase was financed by a down payment of $15,000 taken from the $171,152.42 that had been placed into the Applicant’s bank account. The remainder was paid from the Respondent’s savings and consequently there is no mortgage on the property. However, Legal Aid Ontario has filed two certificates against the property for an unknown amount in respect of legal services provided to the Applicant.

[108] The Respondent and a friend, Patrick Laing, went every weekend to the property for months to make repairs. The Respondent also hired a local plumber to make improvements to the property. The Respondent states that the Applicant only visited the property three times before he moved. She contributed no money or labour to the improvements.

[109] The Respondent seeks the following order:

The net proceeds of sale of the family home shall be divided as follows:

(a) 75 per cent to the Respondent due to his greater financial and labour contributions to the home and due to the Applicant’s reckless depletion of the parties’ savings on her gambling habit;

(b) 25 percent to the Applicant;

(c) Any funds required to discharge the Legal Aid Lien(s) on the property shall be paid from the Applicant’s 25% share.

[110] A claim of unjust enrichment can be established, when the following three elements are found: (i) an enrichment of or benefit to the defendant; (ii) a corresponding deprivation of the plaintiff; and (iii) the absence of a juristic reason for the enrichment. The remedy for unjust enrichment is a monetary award, before imposing a constructive trust: Martin v. Sansome, 2014 ONCA 14.

[111] The Applicant was enriched by the work that the Respondent performed on the Fort Erie Property. The improvements were substantial. However, the Respondent’s claim under s. 5(6) of the FLA for an unequal division of net family property already addresses the impact of the Applicant’s improvident depletion of family property due to her gambling and thus should not be counted twice in this analysis. I find that the elements of a claim for unjust enrichment are satisfied. In my view, it is just to direct that the net proceeds of sale of the Fort Erie Property shall be divided as follows: 60% to the Respondent and 40% to the Applicant.

SHOULD THERE BE AN UNEQUAL DIVISION OF NET FAMILY PROPERTY?

[112] Subsection 5(6) of the FLA states:

The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance, or improvement of property.

[113] In​ Serra v. Serra ,2009 ONCA 105, the Ontario Court of Appeal defined unconscionability as follows:

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

[114] Before undertaking the s. 5(6) analysis, a court must perform the equalization calculations.

Net Family Property Statement

[115] The parties have few valuable assets.

[116] The Applicant’s unsigned Net Family Property Statement calculates that the Respondent owes an equalization payment of $41,140.79 to the Applicant.

[117] The Respondent’s Net Family Property Statement calculates that the Respondent owes an equalization payment of $13,571.45 to the Applicant.

[118] Their differences include the Applicant’s claim of credit card debt on the date of separation of $17,138.67.

[119] I adopt the Respondent’s NFP Statement with the adjustment for the Applicant’s credit card debt described above.

[120] Accordingly, the Respondent owes an equalization payment of $22,140.79 to the Applicant.

Would an Equal Division of the Net Family Property “Shock the Conscience of the Court”?

[121] Finally, the court must determine under s. 5(6) whether the equalization is unconscionable. The s. 5(6) analysis would be the last opportunity for judicial discretion to bring flexibility into the process. This step should be kept distinct from earlier determinations of ownership. See​ Rawluk v. Rawluk, 1990 Cars, 1990 CanLII 152 (SCC), [1990] S.C.J. No. 4.

[122] In his Answer the Respondent claims an unequal division of net family property pursuant to s. 5(6) of the Family Law Act. He states that:

(1) The Applicant has a serious gambling habit – she gambles several times per week for two to four hours per day;

(2) The Applicant recklessly spent about $1 million on gambling from about 2000 to present;

(3) The Respondent objected to the Applicant’s gambling on numerous occasions and she has refused to admit that she has a gambling problem and has refused to seek treatment

(4) It would be unconscionable if the Applicant were to receive 50% of the difference in our Net Family Properties due to her reckless depletion of our savings, her reckless incurring of gambling debt and her non-contribution to the Fore Erie Property.

[123] In her Reply, the Applicant states that she has always enjoyed gambling and that fact was known to the Respondent at the time of their marriage. She states that the Respondent acquiesced to the Applicant’s gambling habit. He empowered her by providing funds to be used for gambling. She states that when the Applicant won, the Respondent shared in her winnings. The Applicant denies that her net gambling losses amount to $1 million.

[124] The Respondent states that he had many arguments with the Applicant about her gambling losses, but he did not leave her at that time because “I loved her”.

[125] The Respondent’s sister, Yolanda Molka, testified that:

• The Applicant’s gambling has been a problem for about 40 years;

• She states that gambling was central to the Applicant’s life during her marriage;

• When the Marion Street property was sold, the Respondent found out that the Applicant had put a $400,000 loan on the property and that she had lost that money gambling. She said that the Respondent told her that he wanted to get out of the marriage;

• She does not know to what extent the Respondent knew of the Applicant’s the amount of her gambling losses;

[126] I find that the Respondent’s net losses from gambling were several hundred thousand dollars over the course of her marriage.

[127] The Applicant acknowledges that the Respondent did not want the Applicant to gamble. She acknowledges that he asked her to go for gambling counselling. The Applicant could not estimate her gambling losses or winnings. Although she does not deny that her gambling habit resulted in a net loss, she denies the assertion that it resulted in losses of about $ 1 million.

[128] The Applicant appears to take little, if any, personal responsibility for her gambling activities. She is unrepentant and unapologetic for the losses that resulted from gambling. She states that gambling was a family activity. I dismiss this suggestion. While there is evidence that the parties went gambling together on a few occasions, this was not a regular occurrence. The Applicant also stated that the Respondent received the benefit of some of her winnings. I find that the Respondent did not condone the Applicant’s gambling activities. The Applicant chose to do as she pleased without him knowing that she used and lost family funds for this purpose.

[129] In short, I find that the Applicant lost at least several hundred thousand dollars of her family’s funds by gambling. This improvident depletion of funds could have provided for their retirement and/or their daughter’s future. This behaviour shocks this court’s conscience. An unequal division of net family property is warranted. The equalization payment of $22,140.79 owed by the Respondent to the Applicant is reduced to zero.

DIVISION OF HOUSEHOLD CONTENTS AND OTHER PROPERTY

[130] In his Answer the Respondent claims a division of household contents or compensation in lieu thereof.

[131] Rather than divide the household contents for which I have no values, I adopt the approach used, in part, by the court in Colivas v. Colivas, 2017 ONSC 4730, and order that the contents of the Fort Erie Property, whether located indoors or outdoors, shall be sold by a mutually agreeable auctioneer within 60 days and the net proceeds of sale divided equally unless the parties otherwise agree in writing.

[132] The parties agree that the Applicant shall have full-time care of their dog, Cobi.

ORDER

[133] Pursuant to the Divorce Act and the Family Law Act, R.S.O. 1990, c. F.3, I order that:

(1) The Respondent shall pay spousal support to the Applicant on an indefinite basis commencing May 1, 2021, equivalent to 50% of his two employer pensions as follows: (a) $3,153.25 per month from his Ironworkers Pension subject to pension adjustments in the future; (b) $795.50 per month from his LIUNA Pension subject to pension adjustments in the future.

(2) I adjourn the quantification of each party’s claim for retroactive adjustments or payment of spousal support pending receipt of the following submissions.

By November 10, 2021, each party shall provide their calculations, to a maximum of 15 pages, regarding the amount of any overpayment or underpayment of spousal support for each of the following periods:

By November 24, 2021, each party shall provide their responding submissions to the calculations submitted by the other party.

(3) The Respondent shall maintain the Applicant as his beneficiary under his existing life insurance policy through the Ironworkers’ Union if permitted by the Plan;

[134] Pursuant to the Partition Act, I order that the jointly owned property municipally known as 72 Edward Avenue, Fort Erie, Ontario, L2A 5K3 shall be sold on the following terms, unless this court otherwise orders or the parties otherwise agree in writing:

(1) By November 1, 2021, the Respondent shall provide the names of three real estate brokers and three lawyers located in Fort Erie, Ontario;

(2) By November 8, 2021, the Applicant shall notify the Respondent that she has selected one of the three aforementioned real estate brokers as the real estate broker to list the home for sale failing which the Respondent shall select one of the aforementioned three real estate brokers to list the home for sale;

(3) By November 8, 2021, the Applicant shall notify the Respondent that she has selected one of the three aforementioned lawyers to represent them solely in respect of the sale of the home failing which the Respondent shall select one of the aforementioned three lawyers to represent them;

(4) By November 15, 2021, the Applicant and the Respondent shall sign a listing agreement with the selected real estate broker;

(5) The parties shall list the home for sale at a price recommended by the listing broker;

(6) The parties shall accept and sign the first offer received by the listing broker that is within 5% of the listing price of the home and that the broker recommends that the parties accept;

(7) The closing of the sale of the home shall occur no earlier than 60 days after the agreement of purchase and sale is signed and no later than 90 days after the agreement of purchase and sale is signed;

(8) The proceeds of sale of the home shall be held by the lawyer in trust after payment of commissions, legal fees and disbursements, other proper costs of sale and liens and other encumbrances on title the home.

[135] Pursuant to the Family Law Act, R.S.O. 1990, c. F.3, I order that:

(1) The net proceeds of sale of the Fort Erie Property shall be divided as follows:

a. 60 percent to the Respondent due to his greater contributions to the Fort Erie Property;

b. 40 percent to the Applicant;

c. Any funds required to discharge the Legal Aid Lien(s) on the Fort Erie Property shall be paid from the Applicant’s 40 percent share.

(2) The Applicant shall have full-time care of their dog, Cobi;

(3) The contents of the Fort Erie Property, whether located indoors or outdoors, owned by the parties shall be sold by a mutually agreeable auctioneer within 60 days and the net proceeds of sale divided equally unless the parties otherwise agree in writing.

[136] Pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, I order that:

(1) a Support Deduction Order to issue;

(2) unless the Support Order and the Support Deduction Order are withdrawn from the Director of the Family Responsibility Office, they shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed.

[137] Should the parties be unable to resolve their claims for costs, then they shall deliver their costs submissions by November 30, 2021 and their responding submissions by December 7, 2021. Each costs submission shall be no more than five pages in length exclusive of any offers to settle and outlines of costs.

[138] Given the Applicant’s consent to the Respondent’s request for a divorce, the Respondent’s request for a divorce is severed and may be filed online along with an Affidavit of Divorce (Form 36).

Mr. Justice M.D. Faieta

Released: October 21, 2021

COURT FILE NO.: FS-17-418668

DATE: 20211021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA MOLKA

Applicant

– and –

PETER ANDREW MOLKA

Respondent

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: October 21, 2021