Contents

Contents

Nature of Trial and Brief Background Facts. 3

Issues. 6

a. Credibility: 6

b. Property Issues: 6

i. Equalization: 6

ii. Post-separation adjustments: 6

c. Occupation Rent: 7

d. Income: 7

e. Child Support: . 7

f. Spousal Support: 7

g. Damages: 7

h. Restraining order: 7

Credibility. 7

Litigation History. 11

Property Division: 15

The Calculation of each party’s Net Family Property (“NFP”) and Equalization Payment (“EP”). 15

Assets/Debts in Dispute on the NFP Statements. 16

a. Property in Iran: 16

b. Household Items, Gold and Jewellery: 16

c. 2012 Honda CRV: 16

d. Wife’s Pension: 16

e. Mahr:. 16

f. Notional Costs of Disposition: 17

Vacant Land in Iran. 17

Household Items and Gold. 20

(a) Household Contents. 20

(b) Gold Coins and Jewellery. 23

2012 Honda CRV.. 24

Mahr and its Treatment for Net Family Property Purposes. 24

The Law on the Treatment of the Mahr for Net Family Property Purposes. 28

Wife’s Pension. 32

Notional Costs of Disposition. 34

Parties’ alleged Debts to their RRSPs on account of the First Time Home Buyer’s Plan. 36

Net Family Property Calculation. 36

Post-Separation Adjustments. 39

(a) Expenses related to the Matrimonial Home paid by the Wife post-separation. 39

(b) Mortgage Penalty Fees paid on the closing of the sale of the Matrimonial Home. 44

(c) Funds unilaterally withdrawn by the Husband from the Joint Line of Credit post-separation. 45

(d) The decrease in the FMV of the Matrimonial Home between 2017 and 2018 post-separation 45

(e) Cash Withdrawals made by the Wife prior to Separation. 48

Total Post-Separation Adjustments to be made to the EP owing by the Wife to the Husband. 49

Occupation Rent. 51

Child Support. 53

Retroactive Child Support. 55

The Calculation of the Husband’s Income in 2019 and 2020 for Child Support Purposes: 57

The Calculation of the Wife’s Income for Child Support Purposes in 2016, 2017 and 2018. 60

The Child Support owing when M.N. shared her residency with the Parents. 63

Section 7 Expenses. 66

Prospective Child Support. 67

Prospective Section 7 Expenses. 68

Security for Support. 70

Spousal Support. 71

Damages Claim for Malicious Prosecution. 76

Circumstances surrounding the Criminal Charges. 77

Restraining Order. 87

Summary of Amounts owing by one spouse to the other. 88

ORDER. 90

CORRIGENDUM: Paras. 167, 381, 382, 382, 385(a) and 385(w) and 385(x) of my original Judgment had calculation errors. The corrections have been made and are reflected by striking changes and underlining additions

COURT FILE NO.: FS-16-412868

DATE: 20211118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELHAM RAMEZANI

Applicant

– and –

YAHJA NAJAFI

Respondent

Self-Represented

Self-Represented

HEARD: September 27th, 28th, 29th, October

1st, 4th, 5th, 6th, 7th and 8th, 2021

REASONS FOR JUDGMENT

M. Kraft, J.

Nature of Trial and Brief Background Facts

[1] The applicant, Elham Ramezani, (“the wife”) is 43 years of age. The respondent, Yahja Najafi (“the husband”) is 57 years of age. Both parties were born in Iran and are Muslim. They are Canadian citizens and continue to hold Iranian passports.

[2] The parties met in Esfahan, Iran and were married after a two-week courtship on January 21, 2001. At the time of the marriage, the husband was a permanent resident of Canada. He returned to Canada after the wedding and made a sponsorship application for the wife.

[3] In accordance with Muslim tradition, the parties entered into a marriage contract, known as the Mahr, on January 21, 2001, which provides a sum of money the husband promises to pay the wife. The Mahr was in writing, signed by both parties and witnessed.

[4] The parties lived separate and apart for the first two years of the marriage. The husband came to visit the wife in Iran on two occasions. When the parties married, the wife was attending university in Iran and studying for her Masters Degree in Electrical and Telecommunications Engineering at Isfahan University of Technology.

[5] The wife immigrated to Canada on March 4, 2003.

[6] The parties have one child of their marriage, M.N., born on June 20, 2004. She is 17 years old and in Grade 12.

[7] After M.N. was born, the husband’s mother came to visit from Iran and stayed with the parties for 6 months in their one-bedroom apartment. The wife testified that this visit caused a lot of conflict for her and the husband and, after her mother-in-law left, the wife was determined to become independent and find a job.

[8] From 2007 onward, the wife has been employed and works full-time. According to her, the husband was threatened by her success and independence.

[9] In June 2011, the parties purchased the matrimonial home, municipally known as 38 Glen Agar Drive, Etobicoke ON M9B 5L9, for $560,000.

[10] The parties separated on July 10, 2016, after a 15-year marriage. Following separation, they resided together with M.N. in the matrimonial home until October 17, 2016, when the husband was charged with sexual assault against the wife which had allegedly taken place on October 16, 2016. At the time of separation, M.N. was 12 years old.

[11] The husband spent two days and nights in jail and was released on bail conditions on October 19, 2016, preventing him from returning to the matrimonial home and requiring him to live with his surety for four months. Ultimately, the criminal charges against the husband were withdrawn.

[12] Pursuant to an agreed-upon parenting schedule, which was incorporated into the consent order of Goodman, J. on January 24, 2018, M.N. began to reside with the parties pursuant to a shared-parenting schedule, such that she spent six nights out of fourteen with the husband and the remainder of her time with the wife. This shared parenting schedule commenced in March 2017. On June 1, 2019, M.N. had decided she no longer wished to spend any time with the husband.

[13] The parties resolved their parenting issues by way of Minutes of Settlement, the terms of which have been incorporated into a final order. M.N. resides primarily with the wife and spends time with the husband according to her wishes. The wife has decision-making responsibility over the important decisions for M.N. M.N. has not seen the husband since June 2, 2019.

[14] Both parties work in the information technology (“IT”) sector. Since November 2010, the wife has worked as a Senior Developer/Application Analyst at the law firm, Torys LLP. In 2020, the wife’s Line 15000 income was $120,460 (comprised of her annual salary plus real estate commission). The husband is a computer programmer for Candu Energy Inc. and earns an annual salary of $74,100. [1]

[15] The wife’s counsel wrote to the husband for the first time on September 9, 2016 to commence negotiations of the outstanding issues which arose due to the parties’ separation.

[16] The husband has paid child support to the wife in accordance with the order of Frank, J., dated January 30, 2017, in the sum of $418 a month, based on an annual income of $46,329 (his 2015 income), except for 8 payments he has missed. Both parties claim retroactive adjustments with respect to child support. The husband submits that there was a shared parenting arrangement for a period of time, between March 2017 and June 2019, during which the parties should have been paying child support for M.N. pursuant to a strict set-off of obligations owed by each party under the Federal Child Support Guidelines, S.O.R./97-175 (”CSG”), but the parties cannot agree as to the proper income for the husband in 2019 and 2020.

[17] The parties were divorced on July 5, 2018 by the order of Paisley, J.

[18] The parties agree on the value to be assigned to many assets and debts to calculate their respective net family properties. There are, however, a number of disputes with respect to other assets and debts relevant to the issue of the equalization payment, which require determination at trial. Further, the parties disagree as to how the value of the Mahr is to be treated for net family property purposes.

[19] Both parties claim post-separation credits and adjustments to address expenses paid for by each party after the date of separation until the matrimonial home was sold, after taking into consideration expenses paid for by the husband.

[20] The husband seeks spousal support from the wife and the parties dispute his entitlement to same.

[21] The wife seeks a restraining order against the husband pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), to prevent communication between the parties and to restrain the husband from coming near her place of work or residence.

[22] The husband seeks general and punitive damages on account of the wife’s malicious prosecution arising from what he claims were false allegations of sexual assault.

[23] The trial of this proceeding took place over nine days. Both parties attended the trial in person and were self-represented. The husband had an agent, David Russell, who attended at the trial only to cross-examine the wife with respect to the sexual assault allegations and charges. There were five witnesses who appeared virtually on the Zoom platform.[2]

[24] The parties’ evidence-in-chief was submitted by way of affidavit, as directed by the order of Goodman, J., dated September 25, 2020. Each party’s evidence-in-chief was supplemented by viva voce testimony given in person during the trial.[3]

Issues

[25] The issues for determination by this Court were as follows:

a. Credibility: The parties have a drastically different view of the events and circumstances that took place both during the relationship and post-separation. Because the court must assess the roles played by the parties before and after separation for the purposes of determining issues of spousal support, equalization and damages for malicious prosecution, findings with regard to credibility are required.

b. Property Issues:

i. Equalization: the Court must determine the value to be attributed to numerous assets and debts in dispute in order to calculate each parties’ net family property and the equalization payment owed, including:

1. The ownership of vacant land in Iran;

2. The value of household contents, jewellery and gold;

3. The treatment of the Mahr for net family property purposes;

4. The treatment of the wife’s Pension; and

5. Notional Disposition Costs.

ii. Post-separation adjustments: Are there post-separation adjustments that need to be made to the equalization payment on account of:

1. the wife solely paying expenses relating to the matrimonial home until it was sold, after giving the husband credit for any expenses he paid.

2. the husband making unilateral withdrawals from a joint line of credit for his sole benefit;

3. the wife making cash withdrawals prior to separation without explanation, thereby improvidently depleting her net family property;

4. the wife renewing the mortgage on the matrimonial home that caused the parties to pay a mortgage penalty on closing; or

5. the reduction in the fair market value of the matrimonial home between 2017 and 2018, as a result of the wife’s delay in agreeing to sell the home.

c. Occupation Rent: Is the husband entitled to receive occupation rent for the period of October 17, 2016 until May 14, 2019, when the matrimonial home was sold and, if so, in what amount?

d. Income: What is the income of the husband in 2019 and 2020 for child support purposes? What is the income of the wife in 2016, 2017, 2018 and 2019 for child support purposes?

e. Child Support: A calculation is required to determine both retroactive and ongoing child support, including for s. 7 expenses.

f. Spousal Support: Is the husband entitled to spousal support and if so, in what quantum and duration?

g. Damages: Is there any basis for the court to order general and/or punitive/special damages in favour of the husband on account of the wife committing the tort of malicious prosecution?

h. Restraining order: Is there any basis for the court to order a restraining order against the husband?

Credibility

[26] Both parties raise serious issues of credibility. Each argues that the other’s evidence was not credible and that the court should accept his/her version of any events that may be in conflict.

[27] The husband claimed that the wife’s testimony was contradictory, untruthful and was undermined by her failure to provide relevant documentary evidence. The wife described the husband’s evidence as untruthful, contradictory and inconsistent.

[28] In Christakos v. De Caires, 2016 ONSC 702, Nicholson J., at para 10, adopted as helpful MacDonald J.’s following outline in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84, at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (OCA) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis in original.]

[29] In Baker-Warren v. Denault, 2009 NSSC 59, 277 N.S.R. (2d) 271, Forgeron J. summarizes the principles applicable to the assessment of credibility as follows starting at para. 18:

[C]redibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. v. Gagnon 2006 SCC 17, para. 20. I further note that "assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:" R. v. R.E.M. 2008 SCC 51, para. 49.

[30] I found the husband’s evidence given both in-chief and during cross-examination to be straightforward and internally consistent. His evidence was consistent with other evidence and it was inherently reasonable and probable. The husband, in my view, however, did not have insight into how his own behaviours impacted his relationship with M.N. and tended to blame the wife for the rupture in his parent-child relationship, without taking any personal responsibility. In addition, the husband made a number of mathematical errors when he calculated retroactive child support and post-separation adjustments to the equalization payment. Further, the husband admitted his carelessness in the preparation of his financial statements sworn in these proceedings. He readily admitted to lifting figures from prior financial statements he had sworn and filed in these proceedings, for no reason, and made continual changes and corrections to his positions until the last day of trial.

[31] The wife’s evidence, on the other hand, was problematic for several reasons. I found the wife’s evidence about the sexual assaults she alleged took place inconsistent with evidence she gave in her video-recorded statement to the police on October 17, 2016, and inconsistent with evidence set out in her affidavits submitted as her evidence-in-chief. For example, during her video-recorded statement to the police, the wife claimed she and the husband did not speak after the sexual assaults on October 16, 2016. During her cross-examination and in her viva voce evidence-in-chief, she acknowledged that the parties did, in fact, speak that evening. This was corroborated by M.N. Furthermore, during her statement to the police, the wife was clear that she told the husband, over and over again, that she did not consent to any sexual contact between them, and that it would have been very obvious to the husband that she did not consent to same. Nonetheless, on February 15, 2017, the wife swore an affidavit (which was submitted to the Crown), in which she deposed that she believes the husband believed that she consented to the sexual contact they had on October 16, 2016. When asked during cross-examination if the wife’s affidavit sworn on February 15, 2017 was a lie and to explain this dramatic inconsistency, the wife said she swore the affidavit to “give the benefit of the doubt to the husband”. The sexual assault charges were ultimately withdrawn against the husband. If I was relying upon this incident alone, I may have some difficulty concluding that the wife’s credibility was questionable.

[32] Most troubling however, was the wife’s testimony about whether she earned additional rental income from students residing in the matrimonial home after separation. During cross-examination, the wife was vehement that she did not earn rental income from students when this was suggested to her. When asked a series of questions about the reference to a “student” made by M.N., in a number of texts to the husband, the wife initially answered these questions by saying the “student(s)” referred to people she was tutoring in English and other subjects. In answer to questions by this court, the wife went on to testify that she advertised her tutoring services for such students online and strenuously denied she had any student tenants living in the matrimonial home. The wife’s evidence in this regard was completely implausible. The wife had, in fact, started a Small Claims court proceeding against an organization that assisted her in housing foreign students.[4] Notwithstanding the fact that the Small Claims court proceeding is a matter of public record, the wife continued to lie about the fact that she had hosted foreign students in the matrimonial home in exchange for rent. It was only after the husband broke down emotionally in court recalling how upset M.N. was when a particular student to whom she had become close had left the matrimonial home, along with a stern warning from the Court reminding the wife that she was under oath, that the wife later admitted that this latter statement was false. The wife admitted that she had foreign students renting rooms in the matrimonial home in exchange for rent. She then attempted to justify her previous lies by claiming she was taken advantage of by the agency she had to sue because she was not fully paid by the agency.

[33] During this trial, the wife strove to present herself as a victim and controlled by the husband. That was not my impression of her based on the evidence and based on my observations of her. The wife’s own description of her ability to adjust to life in Canada as a new immigrant, her ability to become employed and stay employed for years at Torys LLP, coupled with her ability to manage financially and parent M.N. while working full-time bely the suggestion that she is unsophisticated, a victim or capable of being controlled. As the evidence unfolded, it became apparent that the wife is a strong-willed person who is prepared to stand up for herself and to protect her own interests and those of M.N. During the trial the wife sought to control the narrative during questioning, especially during cross-examination, and became vocally aggrieved when the husband challenged her on an evidentiary point.

[34] I found that the wife was particularly ready to craft a self-serving narrative unhinged from the truth if it suited her. For these reasons, I have determined that the wife’s evidence lacked credibility.

[35] While again, the husband was not prepared to accept any responsibility for the demise of his relationship with M.N. and was intent on blaming the wife’s sexual assault allegations against him on the breakdown of his relationship with his daughter, I generally found the husband more credible than the wife. However, I have had to assess the evidence on an issue by issue basis and will make reference to my findings with respect to credibility as necessary below.

[36] The challenges with each party’s credibility meant that documentary evidence was that much more important. In this respect the wife was forthcoming with financial disclosure and, with some exceptions, honoured her obligations under the Family Law Rules, O. Reg. 114/99 by producing disclosure in a timely fashion. The husband attempted to do his best; however, his calculations were fraught with errors and continued to change right up to the last day of he trial.

[37] The husband was not as good with electronic document management and navigating Caselines as was the wife, but he was able to manage in the end and he did have experienced lawyers assisting him throughout. Notwithstanding this, the husband tended to blame others for his failure to comply with his disclosure obligations including former counsel or the wife herself. Similarly, the wife failed to meet her disclosure obligations or onuses but asked the court to make findings about a piece of land in Iran, title to which is in the name of the husband’s mother, and toward which she claims she contributed financially, without any documentary evidence whatsoever that traces money from the wife to the purchase of the land in question.

Litigation History

[38] On September 29, 2016, the wife commenced an Application seeking, among other things, custody; child support; security for child support; exclusive possession of the matrimonial home; an unequal division of the parties’ net family properties or, alternatively, an equalization of the parties’ net family properties; alternatively, an order for a finding of constructive or resulting trust as a remedy for unjust enrichment in her favour; a non-dissipation order; a restraining order; and an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). The husband was served with the wife’s Application on October 3, 2016.

[39] During cross-examination the wife admitted that when she signed her Application again, in which she sought both a restraining order and an order for exclusive possession of the matrimonial home, she did not necessarily “have reasonable grounds to have concern for her own safety or for the safety of M.N. as required by s. 46 of the FLA.” In answer to whether the wife felt fearful of the husband at the time she commenced this proceeding, she testified that “to some degree” she was fearful “because he was very aggressive during the few months before separation”.

[40] The wife denied knowing that once she started her proceeding in this court that she could have brought an urgent motion if she had concerns about her safety and/or that of M.N.’s. She further testified that she did not know that she could bring a motion for temporary relief if she was fearful of the husband in any way.

[41] On October 17, 2016, the wife attended at the Toronto Police, 22 Division, and made a report to the police about the husband sexually assaulting her on three occasions on October 16, 2016. A video of the wife’s statement to the police was obtained by the husband pursuant to a WAGG order and was made an Exhibit at trial.[5]

[42] On October 17, 2016, the husband was criminally charged with two counts of sexual assault against the wife and was not permitted to return to the matrimonial home. He spent two days in jail and was released on October 19, 2016. The condition of the husband’s release was that he was required to live with his surety, Mohsen Hajimfaalesfahi, for four months. The husband lived in the basement of his surety’s home until February 15, 2017. According to the husband, he was humiliated in the parties’ community; lost his good reputation; lost his relationships with friends; and his relationship with M.N. was specifically damaged because of these charges.

[43] On January 13, 2017, the husband filed an Answer and Claim seeking, among other things, joint custody of M.N.; an equal-time-sharing parenting schedule; an order for the immediate sale of the matrimonial home; an order to permit either party to travel with the child outside of Canada with notice; spousal support; occupation rent in the sum of $1,800 a month from the wife; reimbursement for post-separation expenses paid by the husband relating to the matrimonial home; general damages in the sum of $100,000 for malicious prosecution arising from her false allegations against the husband; and special damages/punitive damages in the sum of $100,000 for the wife’s false charges and allegations against the husband.

[44] The wife filed a Reply on January 24, 2017.

[45] On January 30, 2017, the husband obtained a bail variation to permit him to live by himself.[6]

[46] On that same day (January 30, 2017) the parties appeared before Frank, J. at their first case conference, at which she ordered that commencing February 1, 2017, the husband was to pay the wife child support in the sum of $418 a month, based on an income of $46,329 (his 2015 income), on a without-prejudice basis to the wife seeking retroactive child support.[7] Frank, J. ordered the parties to serve Requests for Information on one another by February 20, 2017, with their responses to be delivered by March 29, 2017. She gave leave to the parties to conduct questioning limited to the issue of property in Iran. A continued case conference was scheduled for April 7, 2017 to address the issues of the matrimonial home and access.

[47] On February 15, 2017, the wife swore an affidavit in connection with the sexual assault charges and signed an Authorization and Direction for her affidavit to be sent to the Crown Attorney’s Office.[8] The wife prepared this affidavit with the assistance of criminal counsel, Kim Schofield. The import of the affidavit was essentially to recant the allegations she made to the police on October 16, 2006. The relevant paragraphs of the wife’s February 15, 2017 affidavit are reproduced below:

a. “On October 17th, 2016 I attended 22 Division, Toronto Police Service and gave a video recorded statement to the police in relation to what had happened between my husband and I on October 16, 2016.”

b. “When I gave my statement to the police I was extremely upset and angry. I have had some time to think about what happened on October 16, 2016 with some clarity. I believe that on October 16, 2016, Mr. Najafi may have believed that our sexual contact was consensual.”

c. “The reason that I believe that Mr. Najafi believed that our contact was consensual is due to our past sexual relationship history. Previous sexual activities between my husband and I would occur in a somewhat similar fashion and it was consensual. In the past, there have been numerous occasions when I said “No” but then gave non verbal consent. Sometimes our sexual activities were a negotiation and would require much convincing and promises of massages.”

d. “I attended the Police Station so that the officers would tell him that it was not okay to do this anymore. I did not intend for my husband to be charged.”

e. “I felt the need to have this affidavit prepared so that the Crown Attorney and Judges can do the right thing.”

f. “I have not been promised or received anything for signing this affidavit.”; and

g. “I am singing this affidavit voluntarily.”

[48] On June 28, 2017, as a result of the wife’s affidavit described above in paragraph [47], the Crown withdrew the criminal charges against the husband.[9]

[49] On January 24, 2018, Goodman, J. heard a case conference, at which the parties entered into a consent agreement, which was turned into a court order as follows:

a. The husband was to have access to M.N. from Tuesday, after school to Thursday morning; and Saturdays, after Persian school, to Monday morning, during week one, and on Thursday, after school, to Saturday morning, during week two.

b. The parties were to exchange affidavits of documents by March 15, 2018;

c. The questioning of each party which was referred to in the order of Frank, J., dated January 30, 2017, was to be limited to a maximum of one day; and

d. The parties were to return to a settlement conference before Goodman, on April 27, 2018, at 10 a.m.

[50] Although the order of Goodman, J. is dated January 24, 2018 (as is the date of the handwritten consent signed by the parties), the husband made submissions throughout the trial that beginning in March 2017, M.N. began to have regular parenting time with the husband, pursuant to an agreed-upon parenting schedule set out in the January 24, 2018 order, where she spent six out of fourteen nights with him. The wife did not dispute the start date of this parenting schedule. I accept the husband’s evidence that the new parenting schedule for M.N. commenced in March 2017, 10 months prior to when the parties’ signed the consent which Goodman, J. turned into a court order on January 24, 2018.

[51] The parties attended a Settlement Conference before Penny, J. on July 16, 2018. On September 28, 2018, January 24, 2019 and March 11, 2019, Goodman, J. conducted three extensive Trial Management Conferences (“TMC”) with the parties in an attempt to assist them in settling their outstanding issues. During one of these TMCs the parties agreed to list the matrimonial home for sale.

[52] On May 14, 2019, the parties’ jointly-owned matrimonial home was sold for $1,070,000. It appears that the transaction closed on June 30, 2021. After payment of real estate commissions and repair reimbursements to the realtor, adjustments for taxes and water arrears, discharging the mortgage in favour of Scotia Bank ($431,695.50) and legal fees related to the sale, the total net proceeds of sale amounted to $573,528.45.[10] These funds have been held in trust by the parties’ real estate lawyer for the past 2 ½ years.

[53] The husband takes the position that the fair market value (“FMV”) of the matrimonial home declined in value between April 2017 and June 2018, which decline should be bourne entirely by the wife because according to him, she delayed the sale of the home for 2 ½ years. Each party obtained letters of opinion in 2017 and 2018 that differ substantially in their respective opinions of the FMV of the matrimonial home on each of the dates. The wife also obtained an appraisal report as to the FMV of the matrimonial home in July 2018, which was higher than what the house sold for on May 14, 2019.

[54] On June 2, 2019, M.N. communicated to the OCL, Wiri Kapurura, that she no longer wished to spend time with the husband. The husband and M.N. have not seen each other since June 2, 2019.

[55] On August 7, 2019, the parties attended a further conference before Goodman, J., at which they resolved all of their parenting issues by way of Minutes of Settlement. The Minutes of Settlement were entered into a final order on parenting issues by Goodman, J., which set out that M.N. would reside primarily with the wife and that she would spend time with the husband in accordance with her wishes. In terms of decision-making, the parties agreed to attempt to reach agreement on major decisions impacting M.N., including education, health, religion and major extra-curricular activities and, failing agreement, the wife was to decide the issue. Goodman, J. also made an order requesting the involvement of the OCL specifically to deal with the Court’s concern about the potential involvement of M.N. as a witness at trial.

[56] A nine-day trial was scheduled to commence May 11, 2020, with the exit TMC fixed for May 5, 2020.

[57] The trial did not proceed on May 11, 2020 as a result of the suspension of normal court operations due to the Covid-19 health crisis.

[58] On February 10, 2020, September 23, 2020, October 6, 2020 and December 16, 2020, four TMCs were conducted by Goodman, J., at which she reviewed the process for the trial; the documents the parties would need to file; how the parties’ evidence-in-chief was to be submitted by way of affidavit; and how to address summons for witnesses out of country. Both parties, at this point, were self-represented and required additional guidance from the Court. The trial was re-scheduled to commence January 4, 2021.

[59] The trial was cancelled on January 4, 2021, and the court scheduled a TMC for February 19, 2021 to address new evidence that the wife had discovered regarding a property in Iran and wished to submit for the trial.

[60] On February 19, 2021, Horkins, J. conducted a TMC, at which she addressed the new evidence the wife sought to rely on at trial regarding a property in Iran and the husband’s plan to call the child M.N. to testify at the trial. Horkins, J. ordered a ten-day trial to commence on September 27, 2021 and set out the procedure the wife was to follow in terms of providing the husband with the evidence she wished to rely on at trial concerning the property in Iran. Horkins, J. also established the schedule for the OCL to deliver its motion material to prevent the husband from calling M.N. (who was 16 at that time) as a witness, which motion was to be heard by the trial judge at the beginning of the trial.

[61] On July 22, 2021, the wife brought a motion before the court seeking an order for child support. She did not file a notice of motion but she did file an affidavit and confirmation form. The husband did not attend the motion. Hood, J. dismissed the wife’s motion as there was no need for a second child support order to be made since the Family Responsibility Office could enforce the original child support order of Frank, J., dated January 30, 2017, which requires the husband to pay the wife child support in the sum of $418 a month (and with which he was complying).[11]

[62] I heard the nine-day trial of this matter from September 27–October 8, 2021[12]. Both parties appeared in person at the trial and five witnesses joined the trial by zoom. I reserved my decision. Below is my decision and the Reasons for it.

Property Division:

The Calculation of each party’s Net Family Property (“NFP”) and Equalization Payment (“EP”)

[63] Pursuant to Part I of the FLA, when married spouses separate with no reasonable prospect of a resumption of their cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them: see s.5(1) of the FLA.

[64] The FLA provides for equalization of NFP in s.5(1). NFP is defined in s.4 as follows:

“net family property” means the value of all the property, except property described in subsection (2) that a spouse owns on the valuation date, after deducting, a) the spouse’s debts and other liabilities, and b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deduction the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

[65] When it comes to deducting either the value of debts and liabilities or the net value of pre-marital assets, subsection 4(3) of the FLA places the onus of proving those deductions on the person claiming them.

[66] Once each party’s NFP has been calculated, the FLA says in s. 5(1), “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.” The process of doing so is called equalization of NFP, by way of an equalization payment (“EP”) from the spouse with the greater NFP to the spouse with the lesser.

[67] At the end of the equalization process, a monetary debt is owed by one spouse to the other in no specific property that is or would either be transferred or divided as a result of the equalization procedure: see Schreyer v. Schreyer, 2011 SCC 35, [2011] 2 S.C.R. 605, at para. 16.

Assets/Debts in Dispute on the NFP Statements

[68] The issues in dispute in terms of each party’s NFP can be summarized as follows:

a. Property in Iran: The wife submits that the husband should include this property as an asset in the calculation of his NFP with a value of $213,438.73. This property, again, is in the sole name of the husband’s mother. The wife maintains that the husband’s mother holds the property in trust for him and that he is the beneficial owner of this land. The husband disputes this.

b. Household Items, Gold and Jewellery: The husband maintains that there were household decorative items, gifts, jewellery and gold that remained in the matrimonial home, unaccounted for by the wife, that she removed from the home. The wife disputes this. The husband submits that $15,000 be used as the value of the household contents on V-date and the value of $19,844 be used for the gold and jewellery on V-date that the wife retained. The wife’s position is that the parties sold the three gold coins they received as wedding gifts when they travelled to Iran on a trip in 2010, the proceeds of which were used by the parties toward the down payment of the matrimonial home. Other than these three gold coins, the wife’s position is that there is no other gold or jewellery to be valued.

c. 2012 Honda CRV: The wife estimates that on the date of separation this vehicle was worth $20,405. The husband disagrees and submits that the correct value of the Honda CRV is $26,600 on the date of separation.

d. Wife’s Pension: The wife obtained the Family Law Value of her Defined Contribution Pension at Toryco Services Pension Plan which was calculated to be $16,132.82. The wife wishes to transfer the maximum amount that may be assigned from the pension to the husband in the sum of $8,069.42. The wife seeks to remove the value of this pension as an asset from the calculation of net family property and, instead, proposes that this asset be equalized by the pension administrator directly.

e. Mahr: The parties agree on the value of the Mahr on the date of separation being $209,000. The wife submits that the Maher should not be included as an account receivable for her on the date of separation in the sum of $209,000 or as a debt for the husband on the date of separation in the same amount but, rather, that it should be removed from the NFP calculation. According to the wife, the inclusion of the Maher in the NFP calculations is punitive to her because she is the spouse who owes the husband an EP, which means that if the Mahr is included in each spouse’s NFP, she will not be paid the full value of the Mahr by the husband. The husband submits that the value of the Mahr ought to be included in the calculation of each party’s NFP as per the caselaw that has dealt with this issue. Although the parties led evidence about the value of the Mahr on the date of marriage, neither party included the Mahr as an asset or a debt on the date of marriage in the calculation of his/her NFP.

f. Notional Costs of Disposition: The wife used a notional tax rate of 23% and the husband used a notional tax rate of 30%. Neither party led any evidence as to the rate of tax put forward by either of them.

Vacant Land in Iran

[69] According to the wife, in 2001, after the parties were married, they decided to purchase a home in Iran. The wife testified that in December 2001, the husband came to Iran to visit her for two weeks and they discussed making an investment in land in Iran. According to the wife, her uncle advised the parties that he had a house he could sell them and they made a decision to buy it. The husband does not deny that a house was purchased by the wife in Iran in 2002 but his evidence is that the first agreement the parties entered into with the wife’s uncle was never completed; any agreement entered into thereafter was done in his absence, and the wife sold this property in late 2002 or early 2003.

[70] The evidence on record about the land in Iran is as follows:

a. On January 10, 2002, the parties signed a handwritten purchase agreement where the husband is listed as the buyer and the purchaser is listed as the wife’s uncle, Iraj Gharakhani. The agreement was to purchase 76 Taleghani Lane, 22 Bahman St., Isfahan, Iran (Registration #15199). Both parties signed the purchase agreement, as did the wife’s father and the wife’s uncle. The cost of the property was listed at Rls[13] 140,000,000 and the agreement required that the parties pay half that sum, Rls 70,000,000, as the deposit. The terms of the agreement gave the purchaser (the husband) 8 months to pay off the balance of what was owing.[14] The husband’s evidence is that this transaction was never completed. He testified that he asked the wife’s uncle for papers to prove that the uncle was the owner of the property after the handwritten agreement was signed. According to the husband, Mr. Gharakhani could not provide ownership papers, and as a result, the husband’s evidence is that he never paid the deposit and the transaction was not completed.

b. Five months later, on May 15, 2002, the wife entered into a purchase agreement for the same property (Property number 15199). The purchase price in this agreement is listed as Rls 2,373,840, which was far less than the Rls 140,000,000 set out in the handwritten agreement referred to in (a.) above. The seller in the typed agreement is not the wife’s uncle, but her grandmother, Nafardeh Sorkhi. The wife testified that when her uncle entered into the first handwritten purchase agreement with the parties on January 10, 2002, her uncle was representing her grandmother and had authority to sell the land on her grandmother’s behalf, a common practice in Iran. Ultimately, the deed for this land was transferred into the wife’s name. The wife testified that this was done because the husband went back to Canada.[15]

c. On December 14, 2002, the wife sold the property in Iran (deed number 15199) to a third party, Fatemah Hosseinzad, for Rls 2,200,000.[16] This was three months before the wife came to Canada. According to the wife, she sold this property because the husband and his family were angry with her for having the deed of land transferred into her sole name. She testified that she decided it was best to sell the land and she then gave the entire net proceeds of sale to the husband’s mother because his family was committed to helping the parties find a good investment for land in a suburb of Esfahan, a town called Sepahan Shahr, where the husband’s family had already made similar land investments. According to the wife, the husband’s family used the net proceeds of sale she gave them to purchase vacant land in Sepahan Shahr for her and the husband but title to the property was first place in the husband’s sister’s name and then transferred to the husband’s mother’s name. The wife submits that the beneficial owner of this land in Iran is the husband.

[71] Although the wife testified that she gave all of the net proceeds from the sale of her land (deed number 15199) in February 2003 to the husband’s mother, she was not able to produce any records that she did so. There was no documentary evidence that traced the net proceeds of sale from the wife’s property back to the wife, or out of an account in the wife’s name, and then transferred to an account in the name of the husband and/or his mother. Simply no evidence was put forward. The wife asks the court to accept her account of what transpired in this regard.

[72] The wife testified that after she came to Canada, the husband told her his family had found land for them in Sepahan Shahr; his family had purchased it for them but put the deed in his sister’s name. According to the wife, the husband told her they were to send money to Iran so a multi-unit property or building would get built on this vacant land. According to the wife, she felt betrayed by her in-laws when she learned that they placed the deed to the property in the name of her sister-in-law. The wife did not testify that the parties sent any money to Iran to build anything on this land.

[73] It is the wife’s position that at the date of separation, the husband had a beneficial ownership interest in this vacant land in Iran and that this land has significant value which he has not included in the calculation of his NFP. She believes the husband is conspiring with his family to hide this property so that it does not form part of the calculation of the husband’s NFP. The husband denies this. According to the husband, the property in Iran is in the name of his mother. The husband testified that neither he nor the wife have any interest, beneficial or by way of a trust, in this property.

[74] The husband’s mother swore an affidavit on August 29, 2019 deposing that she never received any monies from the wife, through a trust, or otherwise. The husband did not call his mother as a witness in the trial. Additionally, the wife chose not to cross-examine her mother-in-law in connection with this affidavit. The husband ought not to have filed the affidavit, if he was not going to call the mother as a witness, even if just to have her identify her affidavit and be available for cross-examination. I have not considered the evidence contained in the affidavit in determining the issues.

[75] The wife produced pictures the husband had taken of M.N. with him and his mother when they were visiting Iran, in 2015 and went to see this vacant piece of land.[17] The wife testified that these pictures are proof that this land in Iran belongs to the husband. If it does not then he would have had no reason to take M.N. to see the property. The husband’s evidence was that the pictures prove nothing other than the fact that M.N. was with him and his mother when they visited the vacant land owned by his mother.

[76] Again, the wife was not able to provide any record that she gave the net proceeds of sale from the sale of her land in Iran to the husband’s mother.

[77] The wife was not able to provide evidence as to when this land in Sepahan Shahr was purchased by the husband’s parents. She did not provide any evidence of the original purchase agreement for the said land.

[78] On December 13, 2020, the wife gave a power of attorney to her uncle, Iraj Gharakhani, who resides in Iran, to assist her in obtaining documentation about the value of the vacant land.[18]

[79] The wife was able to obtain an appraisal of the land, located at #1 Alvand Street, end of Kanoon Blind Alley #2, Besat Street, Sepahanshahr, Esfashan, title to which is the name of Ms. Eshrat Sarami Foroushani (the husband’s mother), at both the date of separation and the current date. The appraisal report provides that the estimated FMV of the property was Rls 7,560,000,000 in 2016 (no month provided)[19] and Rls 52,920,000,000 in 2020 (no month provided)[20].

[80] The wife entered into evidence the exchange rate of the Iranian Rial to the Canadian dollar for the date of separation, July 10, 2016, which was $1 CAD = 35,420 Rial, and for the date of the appraisal report, being March 16, 2021, which was $1 CAD = 201,000 Rial.[21] Upon converting the Rial to CAD, the appraisal provides that the FMV of the land in Iran on the date of separation was $263,000 CAD.

[81] The wife’s evidence is that current FMV of the parcel of land in Iran is $213,438 CAD.

[82] Again, the husband takes the position that this land is owned by his mother. He submits that neither he nor the wife made any financial contribution toward the land. As stated above in these Reasons, in general, I accept the evidence of the husband to be more credible than the wife: this was particularly the case in relation to this issue. The husband’s evidence was internally consistent. While the wife is insistent that this land is owned by the husband, she has not demonstrated that the husband owned this asset on V-day. On the wife’s evidence, in paragraph [69c.] above, the land was purchased for her and the husband. It is difficult to understand why, then, she asserts that the husband alone is the beneficial owner of the land if her version of events is true, then she ought to have included such beneficial one-half interest in each of the party’s NFP. To my knowledge, she has taken no steps to assert such a claim against the husband’s mother who holds title to the property. If the wife’s evidence is that it was her money that was used to purchase the property, she ought to have made a claim against the registered owner of the land. Accordingly, I find in favour of the husband on this issue and decline to add this land found in Iran as an asset belonging to the husband on the date of separation.

Household Items and Gold

(a) Household Contents

[83] The husband’s position is that the wife removed many items of household décor, gold and jewellery from the matrimonial home for which she has not accounted. The wife disputes this.

[84] Attached as Exhibit #108 at trial are pictures of the matrimonial home with items in the pictures that the husband claims proves that the wife removed things from the house. None of the pictures are dated. The husband did not identify what items in the pictures were removed by the wife. The husband deposes that the wife retained all of the household items, despite her claim that the parties divided the household items.

[85] As pointed out by Kiteley, J. in Meade v. Meade, 2002 CanLII 2806 (ON SC), [2002] O.J. No. 3155, at para. 42,

It is incumbent on the owner of assets at valuation date to (a) disclose the existence of the asset; and (b) provide documentation in his possession, power or control which verify the value which he attributes at valuation date.

[86] The wife did not deny that she retained the majority of the household contents. In fact, in her financial statement, sworn on August 18, 2021, she lists the household contents that belong to her, as a “bedroom set, kitchen set, dining room table, living room set, etc.” and then lists a value for these items as $0.00 on the valuation date and on the date of the statement. Used contents have some value. It is clear from the wife’s word “etc.”, that she retained more than the specific items she listed. The wife expressly ascribes a “nil” value to these items. In the wife’s NFP statement, dated August 18, 2021 she, again, lists these household items, but instead of placing a nil value for them as she did in her financial statement, she lists the value of these items as “TBD”, suggesting that, at some point, she will determine what the FMV of the items she retained was on V-Day.

[87] The wife essentially deflected the issue of the value of the household contents kept by her claiming, instead, that the parties had agreed on a division of the household contents. To support this position, the wife relied on the Endorsement of Goodman, J., dated March 11, 2019, in which an order was made in accordance with a Consent signed by the parties, which dealt with, among other things, the issue of household contents. Paragraph 3 of the Consent states as follows:

[T]he applicant shall ensure that the real estate agent and the respondent has a detailed list, with pictures, of the items in the matrimonial home she does not want, or believes to be the respondent’s within five days. If the applicant does not want an item and plans to dispose of it by throwing it out, the respondent is permitted to claim the item, without a value being assigned. [underlining added]

[88] Pursuant to the Consent, the wife was to provide the husband with a detailed list of list of items she did not want to keep and/or a list of items she believed belonged to the husband, not a comprehensive list of household contents to be divided.

[89] Paragraph 4 of the Consent sets out that “no items shall be disposed of (thrown out, donated or sold) without further written consent of the parties or further order of the court.” Paragraph 5 sets out that:

[T]he respondent shall collect his personal items and any other items agreed to by the parties, in writing, on the following terms: (a) the respondent shall be permitted to attend the matrimonial home with an adult representative on a mutually agreed upon date and time, when the child of the relationship will not be in the home; (b) prior to his arrival, the applicant will have moved the respondent’s personal items and any other items previously agreed to by the parties to the front of the inside of the garage. The applicant’s items will be clearly marked and are not to be removed by the respondent; (c) the respondent and his representative shall have access to the garage and will not enter any other part of the matrimonial home; (d) the respondent and his representative shall have up to two-hours on March 23, 2019 between 10 and 12 p.m. and on March 24, 2019 between 2 and 4 p.m. to collect his belongings and the agreed upon items from the garage.

[90] The Consent sets out that the husband could collect his personal items or any other items agreed upon on March 23, 2019 and March 24, 2019, at specified times. Again, this did not constitute the resolution of the contents issue. The Consent only references the husband’s personal items or items the parties have agreed upon. It does not refer to how the parties were to resolve the division of their household contents

[91] As well, paragraph 4(g.) of the Consent provides that, “in the event of a dispute over whether an item should be removed from the matrimonial home arises, the items shall remain in the matrimonial home and shall not be disposed of in any way, without further order of the court or written agreement between the parties.”

[92] The wife admitted into evidence a number of emails back and forth between the parties and the real estate agent in March 2018, regarding the household items as support for her position that the parties had agreed to a division of their household contents. However, these emails do not confirm that the parties had divided their household contents, as claimed by the wife. Rather, these emails identity only seven items the parties’ real estate agent suggested ought to be moved to the garage before any showings.

[93] On March 13, 2019, in accordance with the Consent, the wife emailed the husband, advising him that of those seven items identified by their real estate agent, she was prepared to dispose of the basement mirror, basement table and upstairs small couch. Pursuant to the terms of the Consent, the husband was then supposed to let the wife know if he wanted these items before she disposed of them. The husband advised the wife on March 19, 2019 that he consented to her moving the basement cabinet, the basement mirror, the upstairs couch and basement small love seat to the garage and that she was free to dispose of them. In other words, the husband did not want these items. Despite the Consent setting two days for the husband to come with his representatives to retrieve his own belongings, he did not show up on either day. The wife’s position is that the husband was given two opportunities to come and pick up his own belongings and he did not do so. As a result, he lost his opportunity to divide the household contents.

[94] I find that the emails simply identify seven items the real estate agent had suggested the parties remove from the home before the home was to be shown to prospective purchasers. These items were limited and were not the entirety of the household contents.

[95] I find that there was, however, no agreement as to how the parties were to divide the remainder of household contents. The husband’s position is that the wife then removed the remainder of the items from the house, making it impossible for him to prepare an inventory; indicate which items he wanted to retain; and or value the household contents.

[96] In the wife’s affidavit, sworn on September 8, 2021, at para. 90, she deposes that the husband “was [sic] aware that the used furniture was not valuable and he knew that there was a great deal of items that needed to be moved out of the house”. She goes on to depose, in para. 92, that she, “at her own expense, had to hire a moving company to move the items out of the house.” Essentially, in this affidavit, the wife acknowledges that that number of items that she kept were substantial enough that she needed a moving company to move them. She paid a moving company to move a “great deal of items” to her new residence. She submits that the husband ought not to receive cash for households items because he did not participate in the division of the contents or pay for the moving of the contents. At para. 93 of the affidavit, the wife deposes that she believes that the husband’s insistence on ascribing a value to their household contents was his “tactic to maximize the hardship on the [wife]” and that he is seeking payment for household contents, despite the fact that they had agreed on their division.

[97] I prefer the evidence of the husband with respect to this issue. The evidence did not support the wife’s position that the parties had divided the household contents. When the sale of the matrimonial home closed, the wife had retained the majority of the household contents in her possession. At no time did she provide the husband with a detailed inventory of household items for the parties to divide.

[98] I accept the husband’s evidence that there were household items that were not accounted for, which remained with the wife. It was the wife’s onus to provide a list of household items she retained. She declined to do so. The husband estimates that the total FMV of the items retained by the wife was $15,000. The wife’s evidence in this regard is inadequate. Accordingly, I draw an inference in favour of the husband, since he was confronted with the challenge of having to determine from memory what household contents were left in the house and determine their value.

[99] In the absence of any evidence to contrary, I find that $15,000 is the value of the household contents to be included in the calculation of the wife’s NFP on the date of separation.

(b) Gold Coins and Jewellery

[100] In the husband’s affidavit, sworn on November 9, 2020 (his evidence-in-chief), he deposes that there were more than 50 gold pieces in the matrimonial home at the time of separation, including 41 gold coins the parties’ had received as wedding gifts. Using the value of $484 for each gold coin, the husband calculates that the FMV of these gold coins on the date of separation is $19,844. The husband deposes that the wife always kept these coins in a safety box.

[101] In the wife’s affidavit, sworn on November 16, 2020, the wife denies that the parties received 41 gold coins or 50 items of gold as wedding gifts. She deposes that she was gifted two gold coins and a few pieces of jewellery, at or around the time of the parties’ wedding, following the custom in Iran to give gold and jewellery to the bride. The wife’s evidence-in-chief is that the parties sold the two gold coins and all of the jewellery on their trip to Iran in December 2010, the proceeds of which they then used for the down payment on the matrimonial home in Canada.

[102] Neither party provided the court with documentary evidence in support of his/her position. If the husband truly believes that the wife keeps gold coins and/or jewellery in a safety deposit box, he could have taken steps in this case to ascertain the location of the safety deposit box and require the wife to produce the card at the bank where the box is located, which would indicate the history of attendances at the bank to gain access to the box. Furthermore, he could have sought an order that someone attend with the wife at the safety deposit box, in order to complete an inventory of its contents. The husband took no steps in that regard.

[103] The wife’s evidence regarding her alleged ownership of gold coins and/or jewellery is as plausible as the husband’s. Not being satisfied on a balance of probabilities that the wife owned these assets on V-Day, I decline to include a value for gold coins or jewellery in the calculation of the wife’s NFP.

2012 Honda CRV

[104] During the trial, the wife initially testified that the value of the 2012 Honda CRV on the date of separation was $15,000 based on the same model of her car listed for sale on the internet around the time of separation. Similarly, the husband estimated that the value of the 2012 Honda CRV on the date of separation was $26,600 based on cars he found listed for sale on the internet at the time of separation.

[105] On October 20, 2021, I released an endorsement asking both parties to make written submissions with respect to the value of the 2012 Honda CRV considering the Canadian Red Book and Canadian Black Book.

[106] In response to my endorsement, both parties made additional submissions regarding the value of the 2012 Honda CRV on the date of separation as follows:

a. The wife’s revised estimate is that the value of the 2012 Honda CRV was $20,405 on the date of separation. According to the wife, there was between 60-80 kilometres on the car at the time of separation. The wife uses the two highest average prices of a 2016 and 2017 Honda CRV, as the basis for the vehicle’s estimated price.

b. The husband did not provide one estimate of the value of the 2012 Honda CRV. Instead, he listed (a) the Canadian Red Book value of the 2012 Honda CRV was $23,561 on the date of separation; (b) the Canadian Black Book value of the 2012 Honda CRV was $22,622 on the date of separation; and (c) the Auto Trader value of the 2012 Honda CRV was $25,731. If one were to average the husband’s three estimates of value, the estimated value of a 2012 Honda CRV is $23,971.33

[107] I find a fair value for the 2012 Honda CRV on the date of separation is $22,000, the mid-point between the two estimates put forward by the parties, should be included in the calculation of the wife’s NFP.

Mahr and its Treatment for NFP Purposes

[108] As referred to above in these Reasons, the parties entered into a contract of marriage, referred to as a “Mahr” (or “Maher”).

[109] The parties called three witnesses who testified about the Mahr. None of the evidence from the witnesses provided the court with any guidance as to the treatment of the Mahr for NFP purposes. The evidence related to the purpose of a Mahr and how a Mahr is treated in Islamic law. By way of brief summary, I have included synopses of the evidence given by each witness:

Amver Emon: Professor of Law and Director of the Institute of Islamic Studies at U of T:

[110] The wife called, Amver Emon, a professor of law at the Faculty of Law at the University of Toronto with a cross-appointment in the Department of History and the Director of the Institute of Islamic Studies at the University of Toronto, to give testimony about Mahrs. Mr. Emon testified as follows:

a. The Muslim Marriage Contract is a species of Islamic contracts. The term “Mahr” has been translated as a “bride price” or “dowry”, by which a husband agrees to pay the wife, as separate property, a specified amount that is set out in the contract. It is a contractual obligation.

b. When a Muslim couple gets married, it is customary that they enter into a Mahr.

c. Some people argue that, traditionally, the payment of the Mahr was the husband’s bride price whereby the bride became the husband’s property. Other people argue that the payment of the Mahr was meant to ensure that the husband, as the breadwinner, would pay the wife, as the homemaker, a sum of money as financial security for her. Since in Islamic law, all property of the family belongs to the husband, the Mahr was meant to provide the wife with her own, separate property in the event of a marriage breakdown.

d. The amount of the Mahr is negotiated by the parties and usually included in the contract. The Mahr in this case specifies a particular payment to be paid by the husband to the wife.

e. The Mahr is treated as a lien on the husband that can be called on by the wife, if there is a breakdown of the marriage. According to Mr. Emon, he has never seen someone call upon the Mahr during a marriage. He understands that it can also be called upon by the wife on the death of the husband, as a lien on the husband’s estate or upon the dissolution of the marriage, as a lien against the husband.

f. There is often a clause in a Mahr, known as Tafwid Al Talaq, where a husband delegates authority to the wife to initiate a divorce. If the husband delegates this authority to the wife, she is still entitled to receive the Mahr. This is different from the doctrine of Khul’a, which is the traditional rule that only a husband can initiate a divorce and if the wife initiates a divorce, she must forego the payment of the Mahr. In this case, a Tafwid Al Talaq clause granting the wife authority to initiate a divorce under certain circumstances (such as if the husband is a drug addict or jailed for 6 months or more) is contained in the Mahr; and

g. There has been a history of Mahr contracts being enforced by the courts in Canada.

Zahra Asgari – Family Law Lawyer in Iran

[111] The wife called, Zahra Asgari, an attorney-at-law. She is an expert in marriages who practices family law and other areas of law in Iran as a witness at trial. Ms. Asgari’s evidence about the Mahr was as follows:

a. The Mahr is a contract that exists at the beginning of the marriage between a husband and wife, where the husband agrees to give a gift to the wife, clarified at the beginning of the marriage. The gift can be in coins, cash, or land. At the time of the marriage, the husband undertakes to provide the specified items in the Mahr to the wife, at any time she demands payment of the Mahr, as it becomes part of her assets;

b. The timing of the wife’s demand is dependent entirely on the wife. She can demand compliance with his obligations under the Mahr at the beginning of the marriage, during the marriage, at the time of the divorce or afterward.

c. It is the duty of the husband to provide the Mahr to the wife, even if it is after the divorce. The Mahr is like a lien on the husband. He can pay it in one installment or a number of installments;

d. The Mahr payment has nothing to do with the divorce. It is a sum of money or property that has to be paid by the husband to the wife. The wife’s right to the Mahr arises on the signing of the contract;

e. If the amount of the Mahr has not been specified or clarified in the contract, the wife has the right to go to Court in Iran and demand payment of the Mahr;

f. If a Muslim woman can prove to the Court that the living conditions in the marriage have become unbearable for her, the Court will decide whether they will grant her a divorce. However, this is an entirely separate issue from the Mahr, which is an obligation due and payable to the wife on her demand, regardless of whether the Court grants a divorce to the wife; and

g. If the husband does not pay the Mahr, then the wife can apply to the Court and ask that the husband’s assets be seized and the husband be imprisoned, according to Islamic law.

Mohammed ali Abedi – Family Law lawyer in Iran

[112] The husband called an attorney-at-law, Mohammed ali Abedi, who has a Masters Degree in law; received his law degree 15 years ago in Iran; and has specialized in family law for the past 15 years, as a witness. Mr. ali Abedi testified as follows:

a. There is a common practice that is not stipulated by law that, after a husband gives the wife a Mahr, the wife brings household items to the new home, such as items for the kitchen. However, this common practice is one reached by the parties by mutual agreement. It is not enforced by the law and is dependent on the financial ability of the wife. The Mahr, on the other hand, is a legal obligation of the husband and is enforceable by the law.

b. According to Islamic law, a wife can only ask a husband for a divorce on conditions set out in the Mahr [such as those referred to in para. 110(f.) above]

c. Every Mahr contains 12 conditions, which is part of the common law.

d. If a couple signed a Mahr and knew they intended to live in Canada, the terms of the Mahr would be the same, unless the couple made different conditions.

e. According to Islamic law, if a couple’s marriage ends because of divorce, no property is given to the wife, other than the property the husband owes the wife according to the Mahr, unless something different is stipulated in the marriage contract.

f. If a couple bought a home in Iran, the deed to the house is joint and the couple divorces, the wife will receive half of the house and her Mahr. The same result would occur with a joint bank account. In other words, it is a title-based system in Iran, according to which Islamic law recognizes title and ownership. There is no concept of spousal support or alimony in Islamic law; and

g. If a wife does not obtain an Islamic divorce and the husband sees her sleeping with a foreign man, he has the right to kill the man under Article 630 in Islamic Law. However, the husband would have to see the wife at the time, meaning “in the act”, of the adultery. Unless the wife was forced to have sex, the husband would be permitted to kill the wife as well.

[113] In the case at bar, there is no dispute by the parties that the Mahr is an enforceable contract under the FLA, as it was made in writing, signed by the parties and witnessed: see FLA, s. 55(1).

[114] The certified translation of the parties’ Mahr confirms that the amount of the Mahr, which was negotiated between the parties, was:

Rls 10,000,000 for the Holy Koran, Rls 262.5 as Mahr, Rls 1,000,000 for the shawl, Rls 1,000,000 for the mirror & Candlesticks, 450 Bahar Azadi coins, Rls 10,000,000 for Mecca Pilgrimage and 100 Bahar Azadi coins for two sixth of the house to be paid to the wife on demand. [underline added]

[115] The wife obtained a valuation report of the 550 Azadi gold coins provided for in the Mahr. The parties agree that the value of the Mahr on the date of the parties’ marriage was $61,875 CAD (1 Azadi coin = $112.50 CAD on Jan. 21, 2001); on the date of separation, was $209,000 CAD (1 Azadi coin = $380 CAD on July 10, 2016); and on February 21, 2020, it was $266,200 CAD (1 Azadi coin = $484 CAD).[22]

[116] The wife demanded the Mahr after the parties’ separated on July 10, 2016. The husband does not dispute this.

The Law on the Treatment of the Mahr for NFP Purposes

[117] Although initially there was some dispute as to whether these traditional marriage contracts under Muslim law could be enforced in Canada, that disagreement was resolved by the Supreme Court of Canada in Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607. A marriage contract that meets all the requirements for a civil contract under provincial legislation is legally enforceable, even if the contract has a religious aspect: see Bruker, at para. 123; Bakhshi v. Hosseinzadeh, 2017 ONCA 838, 139 O.R. (3d) 531, at paras. 21-22.

[118] In Khanis v. Noormohamed, 2011 ONCA 127, [2011] O.J. No. 667, at paras.9-10, the Ontario Court of Appeal upheld the decision of Backhouse J. to enforce a Mahr agreement, which was in writing, signed by both parties and witnessed, thereby complying with the provisions of the FLA.

[119] The courts in Ontario have recognized the Mahr as an enforceable foreign marriage contract. The general treatment of the Mahr is that it is to be listed as an account receivable on the wife’s side of the ledger and valued as of any applicable dates in the calculation of her NFP. Conversely, it is to be listed as a debt on the husband’s side of the ledger on any applicable dates.

[120] It is the wife’s submission that the inclusion of the Mahr as an account receivable on her side of the ledger increases the equalization payment that she will owe the husband, which is punitive to her. It is her position that since she is the payer of the equalization and the recipient of the Mahr, the calculation of the equalization payment should not impact the Mahr that the husband owes her. She asks that this court not include the value of the Mahr as either an account receivable or a debt in the calculation of the parties’ respective NFPs. The wife asks that the Mahr be paid by the husband to her after the amount of the equalization payment is determined without consideration of the Mahr.

[121] The wife testified that the intent of the Mahr is to ensure that a wife has financial security in the event of a divorce. As a result, if the Mahr is considered in the calculation of the parties’ NFPs, the result will be that she has to pay the husband a greater EP than she otherwise would, which is contrary to the purpose of the Mahr in the first place.

[122] In Bakhshi, the parties were married in Iran in May 1995. They entered a Mahr that required the husband to pay his wife 230 gold coins upon her request. The Court of Appeal for Ontario did not interfere with the trial judge’s finding that the Maher was a civil domestic contract enforceable under provincial legislation. Therefore, the husband had a debt to the wife, which was to be included in the equalization calculation: at paras. 2, 20-22, 34 and 41-44.

[123] In the case at bar, no agreement existed between the parties for the value of the wife’s entitlement or the husband’s obligation under the Mahr to be excluded from the calculation of the parties’ NFPs. As set out in Bakhshi, “the objective contractual intentions of the parties are to be determined as of the time when the contract is made”: at para. 22. The wife gave no evidence at trial that when she agreed to the terms of the Mahr, she had understood, believed or intended that the Mahr would not be considered in the resolution of the parties’ issues should they separate in Ontario, let alone that the husband had agreed that it would not.

[124] At the time that the parties executed the Mahr in Iran, they knew they would be moving to Canada and continuing their life in Canada. The parties did not contemplate their mutual obligations that could exist in Ontario under the FLA.

[125] Accordingly, as was the case in Bakhshi, absent any evidence of an objective intention at the time of the contract to treat the Mahr differently, the Mahr payment must be treated under the FLA like any other payment obligation between the spouses: at para. 34.

[126] The wife submitted at trial that the Mahr should be excluded from the NFP calculation as it was a transaction between her and the husband. This exact submission was made by the wife in the case of Bakhshi and rejected for the following three reasons, at para. 35:

First, there is simply no provision in the FLA that excludes transactions between spouses. On the contrary, bona fide inter-spousal debts must be included in NFP: Burke (Public Trustee of) v. Burke Estate, [1994] O.J. No. 1342 (Gen. Div.), at paras. 37-40, 1994 CanLII 7442, at paras. 38-41; and Long v. Long, 1989 CarswellOnt 2687 (H.C.), at paras. 15-17. Second, because of the effect of the deeming provision in s. 4(5), transactions between spouses may affect the equalization payment where a spouse’s net assets would otherwise be negative. Transferred assets that fluctuate in value could also make a difference. Third, excluding transactions between spouses would be inconsistent with the separate property regime under the FLA, which continues during a marriage and terminates only on the triggering of the valuation date. As Feldman J.A. said in Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 O.R. (3d) 491 (C.A.), at para. 26:

The nature of the property regime established as between spouses under the Family Law Act was clearly described by Cory J. in Rawluk v. Rawluk … Spouses each own their separate property throughout the marriage. However, upon the happening of one of the five triggering events, there is a valuation date.

[Underlining added. Citations omitted.]

[127] I conclude that the principles in Bakhshi apply to the issues in this case. The Mahr contract signed by the parties in Iran meets the formal statutory conditions for a domestic contract. It is in writing, was signed by the parties, and was witnessed: see FLA, s. 55(1).

[128] Neither party suggested that the terms of the Mahr were unreasonable, let alone unconscionable. Neither party moved to set the Mahr aside under s. 56(4) of the FLA or otherwise. To the contrary, the wife seeks her entitlement under the Mahr and the husband has agreed to pay the wife the sum of $209,000 (the value of the gold coins on V-Day). It was the intention of the parties to be bound by the terms of the contract.

[129] The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence, which in this case is Ontario: FLA, s.15.

[130] In her application, the wife seeks an equalization of NFP: see FLA, s. 5. Although she claimed in her application that the equalization payment should be varied on the basis of unconscionability under s. 5(6), she did not indicate upon which factor(s) in subs. 5(6) she was relying, in her pleadings or evidence at trial. In her submissions, she asserts that it would be “punitive” to her if the asset and debt arising from the Mahr were to be included in the calculation of the parties’ respective NFPs and, as a consequence, the equalization payment.

[131] The Court of Appeal has dealt with the Mahr obligations and entitlements as follows:

Collection of the demand obligation is not an equalization issue but a debt collection issue. This can be seen clearly by considering the situation where, during the marriage, the husband endorses over to the wife a third party’s promissory note. The third party’s promissory note would be included in equalization, and afterwards the wife could collect the debt from the third party. The same reasoning applies to the husband’s own promissory Maher obligation in this case. The wife is entitled to collect the debt owed to her. Thus, the wife is entitled to an equalization payment of $36,520 plus post-separation adjustments of $44,449.93 plus realization of the Maher obligation of $79,580 for a grand total of $160,549.93.

[Bakshi, at para. 43]

[132] Similarly, in Hesson v. Shaker, 2020 ONSC 1319, at para. 39, following a finding that the Sharia Marriage Contract was valid and enforceable, the court also found that the $30,000 amount owed under the contract was a debt that the husband owed the wife for the purpose of the equalization calculation.

[133] The preamble to the FLA states as follows:

Preamble

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children;

[134] The purpose of the equalization provision in Part I of the FLA is set out in s. 5(7), which states as follows:

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

[135] The evidence given by the experts demonstrates that, at least, historically, Mahrs were entered into in order to ensure that a wife has some level of financial security on the breakdown of a marriage. Absent a Mahr, the wife’s rights, at least at some point, were restricted to property in her name, one-half of the home (since it was owned jointly). Iranian law did not provide for a sharing in the value of the increase in the assets and debts of each spouse between the date of marriage and the date of separation or for child or spousal support.

[136] To be clear, the husband did not take the position that the Mahr obligation should not be enforced because the parties did not contemplate the rights either of them would have to an equalization of property, were they to separate in Ontario. The husband is prepared to pay the amount demanded in respect of the Mahr.

[137] The effect of the wife’s position is that in addressing the financial circumstances on the breakdown of their marriage partnership, she wants to factor in the husband’s obligation to pay the Mahr by having him pay it but does not similarly want to factor in her right to that property. This approach runs contrary to the purposes of the FLA and the equalization provisions in particular.

[138] It is noteworthy that neither party included the value of the wife’s right to payment under the Mahr as an asset of the wife or a debt of the husband as of the date of marriage. They were obliged to do so. I have mentioned this because it may not be clear to the parties that the impact of the inclusion of the value of the Mahr-related asset and debt on both the date of marriage and V-Day changes the impact on the EP.

[139] At the time that the parties separated, the husband’s obligation to pay the amount set out in the Mahr to the wife as a contractual obligation was but one of the factual circumstances to be factored into the calculation of the parties’ NFPs and thus the EP to be paid by one party to the other.

[140] Even if the wife’s position, in submitting that including the value of the asset and debt in the parties’ NFPs would be “punitive” to her, is that in doing so, it would be unconscionable for her to pay the EP to the husband, she has not satisfied the court that this is so. The husband agrees to pay $209,000 to her, the amount he owed her when she demanded payment of the Mahr. This is the amount she sought as payment for that debt.

Wife’s Pension

[141] The Statement of Family Law Value (“FLV”) report of the wife’s defined contribution pension from Toryco Services Pension Plan is $16,138.84.[23] The report confirms that the maximum amount that may be assigned and transferred by the wife to the husband is $8,069.42.

[142] The wife joined the pension plan on November 19, 2012 when she began working at Torys LLP. It is a defined contribution pension plan where the employee contributes 4% of her monthly earnings into the plan and the employer contributes 2 to 8% to the pension based on the length of the member’s continuous service.

[143] The valuation report confirms that the lump sum can be transferred to the husband to a locked-in retirement account (LIRA); to a life income fund (LIF) or to another pension plan. The wife wishes for the husband to receive the lump sum from her pension administrator. She asks the court to remove the value of her pension from the calculation of her NFP and order her to direct her pension plan administrator to transfer half of the FLV of her pension to the husband.

[144] The definition of property in s.4(1) of the FLA “means any interest, present or future, vested or contingent, in real or personal property and includes,”

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period be beginning with the date of the marriage and ending on the valuation date. (emphasis added)

[145] Section 10.1 (1) of the FLA provides that “the imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act, R.S.O. 1990, c. P.8, (“PBA”) applies is determined in accordance with section 67.2 of that Act.” Section 10.1 (2) of the FLA provides that “the imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 of the PBA with necessary modifications.”

[146] In this case, the wife’s pension with Toryco Services Pension Plan is an Ontario regulated pension. The pension laws changed in Ontario in January 2012 to change the system for pension valuations on marriage breakdown. The valuation rules are specified in the Ontario PBA and there is now a single value that is assigned to a member’s pension benefits, as opposed to a range of values based on assumed retirement dates, as was done prior to January 2012. The regulations, however, do not address the issue of income tax. Therefore, the value provided by the plan administrator, known as the “imputed value” or the FLV is a pre-tax value. Accordingly, when the FLV of a spouse’s pension is included in a spouse’s net family property statement, as with other assets, such as an RRSP, the present value of the future contingent income tax needed to be deducted as a debt.

[147] The wife wishes to transfer the maximum amount allowable from her pension into a LIRA or LIF in the name of the husband. As a result, the wife has asked the court to exclude the value of her pension from the calculation of her NFP. There is, however, no authority for the court to exclude the wife’s pension from the calculation of her NFP. There are cases where a spouse is permitted to satisfy a portion of the EP by transferring funds from a pension into a LIRA or LIF to the recipient spouse. If that were to occur, then income tax calculations are necessary to ensure that both the husband and wife end up with the same after-tax amount of pension assets.

[148] The Financial Services Regulatory Authority of Ontario is clear that after a spouse includes his/her FLV of the pension, the spouse must then list the future tax liability for the pension as a debt in the financial statement. The wife did not include a corresponding debt on V-date for the pension to account for the future income tax she would have to pay.

[149] In fact, neither the husband nor the wife led any evidence whatsoever on the present-value of the future contingent income taxes associated with the wife’s pension.

[150] Accordingly, I find that the FLV of the wife’s pension shall be included in the calculation of her net family property as an asset on the date of separation and the contingent income taxes shall also be listed as a debt of the wife on the date of separation using the notional disposition rate referred to below.

[151] The wife wishes to satisfy a small portion of the EP she owes the husband by way of a direct rollover from her pension into a LIRA or LIF in the name of the husband to the extent allowed by her pension plan administrator in the sum of $8,069.42. The husband did not oppose this request.

[152] Pursuant to s.10.1 of the FLA,

(3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.

(4) 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.

[153] As can be seen, even before the legislation was changed, the court was empowered to transfer property from one spouse to the other in order to satisfy an EP obligation. However, courts could seldom transfer pensions without the consent of the parties because of various statutes governing those pensions. Now s. 10.1 of the FLA has been enacted in order to overcome that problem. That does not mean, however, that a transfer of a lump sum will always be granted. In fact, the court has discretion and should consider the matters outlined in subsection (4) together with “such other matters as the court considers appropriate” : see VanderWal v. VanderWal, 2015 ONSC 384, para. [9].

[154] There is not presumption of statutory onus that an EP will be made by a transfer of a lump sum out of a pension plan. Each case depends on its own facts.

[155] In this case, the wife’s pension value does not constitute a great proportion of her NFP. The EP that she is required to pay (set out below), is off-set by the Mahr debt the husband as to pay her, such that the amount the wife will end up owing the husband will not be overly significant. The wife will, therefore, receive close to equal to one-half of the net proceeds of sale from the matrimonial home ($286,764.22) that are being held in trust by the real estate lawyer. This is important when considering the “assets available to each spouse at the time of the hearing”. I am of the opinion that s.10.1 of the FLA creates another way for an EP to be made and as Marshman, J. found in VanderWal, “there is no presumption, one way or the other, that it is the right way” (para. [17]).

[156] In this particular case I have considered the fact that neither party calculated the contingent tax liabilities associated with the wife’s pension (although I did so); the proportion of the wife’s NFP that consists of the imputed value of her interest in her pension is quite small; and the wife will have very close to her one-half share of the net proceeds of sale from the matrimonial home available to her, even after the EP is paid. The wife shall therefore pay to the husband the EP owing without transferring funds from her pension to the husband.

Notional Costs of Disposition

[157] Since 1994 and the Court of Appeal’s decision in Sengmueller v. Sengmueller, (1994) 1994 CanLII 8711 (ON CA), 111 D.L.R. (4th) 19 (Ont. C.A.), it is well settled that notional disposition costs should be permitted to be included in the calculation of each spouse’s net family property, if, as the court put it, “there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them”: at p. 25.

[158] The assets that attract notional costs of disposition in this case, are both parties’ RRSPs and the wife’s pension. The wife used a rate of 30% for the present value of the future costs of disposition with respect to her RRSPs and the husband used a rate of 23% for the notional costs of disposition with respect to his RRSP. Again, the wife did not apply notional disposition costs to her pension.

[159] The wife is 43 years of age and the husband is 57 years of age. It is reasonable and probable to conclude that the husband will not have to begin reducing his RRSPs until the end of the year he turns 71 unless for some reason, he becomes unemployed between now and then and needs to draw on his RRSP to make ends meet. Even then, it is reasonable and probable to conclude that each party’s RRSPs will not be disposed of as a one-time event.

[160] In Lambert v. Peachman, 2017 ONSC 7450, at para. 21, Woodley, S.J., summarized the rules a court applies when disposition costs are in issue:

When disposition costs are in issue, courts apply three rules: (i) the overriding principle of fairness applies, i.e., that costs of disposition as well as benefits should be shared equally; (ii) each case should be decided on its own facts, considering the nature of the assets involved, evidence as to the probable timing of their disposition, and the probable tax and other costs of disposition at that time, discounted as of valuation day; and (iii) disposition costs are deducted before arriving at the equalization payment, except in the situation where "it is not clear when, if ever," there will be a realization of the property; McPherson v. McPherson, 1988 CanLII 4732 (ONCA).

To determine the appropriate notional RRSP tax rates—where the parties disagree—the court’s analysis must rely on evidence supporting the expected time of disposition; Virc v. Blair, 2016 ONSC 49. If the evidence is lacking, the court may consider both agreed upon rates for other assets as well as hindsight evidence of post-separation text rates and actual disposition costs incurred upon sale of RRSPs; Virc v. Blair, Ibid at. Para 198.

[161] As found in Knight v. Knight, 2018 ONSC 3294, [2018] O.J. No. 2771, at para. 61, “[t]he conversion of RRSPs to a Registered Retirement Income Fund (“RRIF”) is what a reasonable and prudent person would likely do to avoid income tax being assessed at the taxpayer’s then highest marginal rate.”

[162] Since the onus is on the party claiming the deduction, the court would have expected to hear some evidence from either or both the husband and wife or another witness that would enable the court to determine the present value of this future obligation. In the circumstances, I find that a rate of 26.5%, being the mid-point between each party’s proposed income tax rate, to be a reasonable deduction to apply to his/her RRSPs and the wife’s Pension as at the date of separation.

Parties’ alleged Debts to their RRSPs on account of the First Time Home Buyer’s Plan

[163] The parties each withdrew funds from his/her RRSPs to buy the matrimonial home in 2011. Each party has claimed as a “debt” on V-date, the amount remaining on account of the amount he/she withdrew from the First Time Homebuyer’s Plan but has chosen to repay to the Plan. Despite what the husband stated on his sworn financial statement, namely, that on the valuation date he owed the government $19,111, on account of him having withdrawn funds from his RRSP under the First Time Homebuyer’s Plan, these funds are not owed to the government as a debt. They are, instead, to be paid back to each party’s RRSP for his/her benefit over 15 years, at a rate of 1/15th a year. Accordingly, the only debt that could arise as a result of the parties’ contribution to the purchase of the matrimonial home from funds withdrawn from their respective RRSPs would be the notional tax he/she would have to pay in the future if he/she chose in a particular year or years not to repay at least 1/15th of the initial amounts they each withdrew from his/her RRSP.

[164] Neither party addressed the issue of the notional tax that would be payable if he/she chose not to repay 1/15th of the amount he/she contributed to the purchase of the home out of the First Time Homebuyer’s Plan. The parties simply did not accurately address the “debt” issue that could conceivably arise by the non-repayment of an amount equal to 1 /15th of the RRSP each withdrew from his/her RRSP.

[165] Further, there is no requirement under the First Homebuyer’s Plan requiring a party to repay the amounts he/she withdrew from his/her RRSP. If he or she chooses not to do so in a given year then the sum equal to 1/15th of the RRSP withdrawn will be brought into his/her income for that year and there will be income tax he/she would have to pay.

[166] In my view, this is not a debt to be included in the calculation of either party’s NFP. The monies withdrawn by each party from his/her RRSP are reflected in the house value, a joint asset. My review of the parties’ income tax returns filed, demonstrates that each of the parties has a history of repaying the amounts into the First Time Homebuyer’s Plan voluntarily, such that the value of any notional tax either party may have to pay on account of her/him not doing so is zero. Thus, the monies each party owed to his/her respective RRSPs in connection with the First Time Homebuyer’s Plan on the date of separation, is not a debt to be included for NFP purposes.

NFP Calculation

[167] Based on all of my findings above, the details of the NFP calculation for each party is set out in the below chart:

Asset/Debt

Husband

Wife

Court’s Ruling

Assets

Matrimonial Home

$550,000

$550,000

H lists this as $600K on each side; W lists this as $500K on each side. Since it was jointly owned and the value does not impact on the EP, I have used $550K to make it clear that I do not accept either party’s position.

Property in Iran

I declined to include a value of $213,438.73 CAD for this property on the husband’s side of the ledger as sought by the wife.

Household Goods

$15,000

The parties have treated the contents in dispute as assets of the wife’s on V-date for equalization purposes. I drew an inference in favour of the husband that the FMV of the household contents was $15,000 on the date of separation.

2 Persian Rugs gifted by mother-in-law

$1,200

Not in dispute.

Gold coins and Jewellery

I was not satisfied that the wife owned gold coins and jewellery on the date of separation.

2012 Honda CRV

$22,000

I found that the car was worth $22,000 on the date of separation, as a mid-point between both parties’ submissions.

2014 Dell Laptop

$100

$100

Not in dispute.

RBC Chequing Acct *5556

$1,977.22

Not in dispute.

RBC Savings Acct *4410

$10.00

Not in dispute

RBC USD Acct *0476

$0.70

Not in dispute.

Scotia Account #5485

$1,650.00

$1,650.00

Not in dispute.

TD Chequing Acct #7345

$1,033.05

$1,033.05

Not in dispute.

TD Savings, Acct #1980

$40.39

$40.39

Not in dispute.

Defined Contribution Pension Toryco Services Pension Plan – Family Law Value

$16,149.82

I have included the Family Law Value of the wife’s pension of $16,149.82.

RRSP – Toryco Services Pension Plan

$2,306.97

Not in dispute.

TFSA – Toryco Services Pension Plan

$4,847.87

Not in dispute.

RBC Chequing Acct #0688

$1,494.30

Not in dispute.

Group RRSP RBC

$2,788.43

Not in dispute.

Group RRSP RBC

$1,394.21

Not in dispute.

Group RRSP - RBC

$4,471.89

Not in dispute.

Money owed to the Wife as an Account Receivable – 500 Gold Coins set out in the MAHR

$209,000

The value of the Mahr on V-date is to be included in the wife’s NFP. The value of the Mahr is not in Dispute.

Subtotal of Assets

$562,972.97 $512,043.42

$825,315.30 $775,315.32

Debts & Other Liabilities

Matrimonial Home Mortgage ScotiaBank

$249,985

$249,985

Not in dispute

RBC Rewards Visa (card ending 0482)

$176.40

Not in dispute

Credit Card ScotiaBank Scene Visa, (Card ending 1016)

$18.38

$18.38

Not in dispute

TD credit Card (card ending 0832)

$22.59

$22.59

Not in dispute

The Bay Mastercard

$100.00

$100.00

Not in dispute

Lowes credit card

$1,940

$1,940

Not in dispute

RBC Mastercard (card ending 9310)

$38.29

Not in dispute

RBC Reward Gold Visa

$80.30

Not in dispute

Notional taxes on the Disposition of Toryco RRSP

$611.35

I found that the notional income taxes on the disposition of the RRSP to be calculated using a tax rate of 26.5% on the V-date, the mid-point between the parties’ positions.

Notional taxes on Wife’s Pension at Toryco

$4,279.71

In determining the FLV of the wife’s pension, the pension administrator does not address the income tax that will be payable in the future on the realization of the pension. I have used 26.5%

Notional taxes on LIRA Toryco

I have used 26.5%

Notional taxes on Group RRSP

$738.93

I have used 26.5%

Notional taxes on Group RRSP

$369.46

I have used 26.5%

Notional taxes on Group RRSP

$1,185.05

I have used 26.5%

First time Home Buyer’s Plan – Repayment for RRSP

I have found the “debt” included by each party as monies he/she “owes” to his/her RRSP on account of the First time home buyer’s plan is not a debt.

MAHR owing to the wife

$209,000

I found that the value of the Mahr was to be included as a debt on the husband’s side of the ledger

Total Debts & Liabilities

($461,724.40) $463,395.40

($256,857.03) ($255,017.03)

Deduct Date of Marriage Net Worth

MAHR owing to the Wife on DOM

($61,875)

I have included the value of the Mahr as an asset of the wife’s on the date of marriage as a deduction. The wife was entitled to the Mahr on her demand from the moment it was signed.

MAHR debt owing by the husband to the Wife

+$61,875

I have included the value of the Mahr as a debt on the date of marriage, which is then added to the husband’s NFP, because the husband owed the Mahr to the wife as at the date of marriage.

Subtract Excluded Property

Persian Rugs

($1,200)

Not in dispute

Net Family Property

~~$112,194.02 ~~ $161,452.57 $240,208.02 (no Mahr)

$455,383.29 $507,223.39 $292,723.18 (no Mahr)

Difference between the parties’ NFPs is $343,189.27 $345,770.70 or

$52,515.16 without the Mahr

EP owing by W to H

$171,594.63 $172,885.36

Post-Separation Adjustments

(a) Expenses related to the Matrimonial Home paid by the Wife post-separation

[168] Between the date of separation and the closing date of the sale of the matrimonial home, the wife submits she paid a total of $133,970.23 toward expenses related to the parties’ matrimonial home, 50% of which she seeks reimbursement from the husband. The wife provided all of the receipts for each of these expenses and they were admitted into evidence as Exhibits at the trial. She met her onus with respect to proving that she paid for these items.

[169] Specifically, the wife testified that she solely paid the following expenses post-separation:

a. Mortgage and property tax payments of $131,783.74;

b. The cost to replace the stove in April 2018 in the sum of $986.49; and

c. Home Insurance payments of $1,200.

[170] Post-separation, the husband paid for a number of utility bills and car insurance, which totalled $1,631.56. He provided the documentation for these items, which were entered into Exhibits at trial. The wife agrees that the husband paid for these expenses post-separation. However, only one-half of these expenses are the wife’s responsibility, being $815.78, which reduces the figure of $133,970.23 to $133,154.52.

[171] After considering the husband’s contributions to household expenses, the wife seeks an order that the husband reimburse her in the sum of $66,577.26 on account of post-separation expenses, because they are joint owners of the house.

[172] The husband’s position is that the wife had full control over the matrimonial home and, as such, she ought to be solely responsible for the costs associated with maintaining it. Further, the husband submits that the wife rented the home out to tenants and family members and solely benefitted from this rental income without sharing it with him.

[173] The issue for me to determine is whether it is appropriate for the husband to contribute to 50% of the mortgage payments, property taxes, home insurance and stove repair costs associated with the matrimonial home, when he did not live there from the time of the criminal charge, October 17, 2016, until the home was sold on May 14, 2019 (32 months), during which time he had to incur his own housing expenses and he was paying the wife child support.

[174] If the husband reimbursed the wife in the sum of $66,577.26 as she requests, that would translate into him paying the wife $2,080.54 a month (50% of $4,161.08 a month), representing what the wife paid toward the mortgage, property taxes and house insurance, not including utilities. When I consider the utilities, based on the wife’s bank statements, the total monthly housing expenses come to about $4,660, half of which would be $2,330 a month.

[175] Both parties required accommodation until the matrimonial home sold. After the husband was permitted to leave his surety’s residence in February 2017, he moved into a rental accommodation at a cost of $1,560 a month (according to his financial statement), compared with the wife’s housing expenses of about $4,660 a month.

[176] The result of the wife’s request would be that the husband would be contributing more than 50% to the wife’s living expenses, because contribution toward housing expenses is included in the child support he was paying to her. If the husband had to pay the wife $2,080.54 a month, as sought by the wife, plus his own rental cost of $1,560 a month, then between February 1, 2017 [after he moved out of his surety’s basement] until May 14, 2019 [when the matrimonial home sold], the husband’s total contribution toward housing costs would have been $3,640.54 a month, including his 50% share of her housing expenses, whereas the wife would have only been paying $2,080.54 a month toward her housing costs.

[177] The wife’s claim totally ignores the fact that, in paying child support to the wife, the husband would be contributing additionally to the wife’s housing costs given the accommodation costs form a portion of the child support a payor is obliged to pay under the Guidelines. Further, while the wife’s other housing expenses are about $490 a month (her utilities), the husband has been paying rent of about $1,560 a month. During the entire period that gave rise to the $66,577.26 claim, the husband was earning significant less income than the wife.

[178] The wife explains the basis for the amount she has claimed ($66,577.26) from the husband as follows:

a. She paid 100% of the mortgage payments, property insurance, property taxes, and the replacement of a stove without contribution by the husband since separation;

b. Prior to separation, the parties had agreed to a mortgage that was being paid down aggressively, which the wife had no choice but to continue to pay on her own once the husband was no longer contributing;

c. Over 70% of her monthly salary went toward the mortgage only and she had to find the necessary funds to pay the remainder of the bills and care for M.N. The wife’s Scotiabank bank statements confirm that the bi-weekly mortgage payments were $1,804.30.[24] There are generally 26 bi-weekly payments in a year, which translates into the annual mortgage payments being $46,911.80. The husband was paying child support for M.N. during this time period in the sum of $418 a month, which obligation was based on his 2015 income and did not increase at all in the five years between the date of separation and the date of this trial.

d. According to the wife, the husband was aware of the difficult time she was having financially in her efforts to pay all of the mortgage and household related bills. She requested financial assistance from the husband, including asking him to pay the property tax payments when the City of Toronto was sending multiple final notices for overdue property tax payments. He declined to assist in any way or to even answer her emails in this regard; and

e. Given the way the mortgage was structured, the wife paid down $92,835.05 of principal on the mortgage between the date of separation and the date the house sold (May 14, 2019), without contribution from the husband. The details are as follows:

i. In 2019, the total principal paid by the wife was $12,780.64 and total interest paid by her was $5,934.33;

ii. In 2018, the total principal paid by the wife was $30,759.22 and the total interest paid by her was $10,017.88;

iii. In 2017, the total principal paid by the wife was $30,779.38 and the total interest paid by her was $10,711.26; and

iv. In 2016, the total principal paid by the wife was $18,515.81 and the total interest paid by her was $6,347.14.[25]

[179] During the course of the trial, the husband’s position respecting his obligation to contribute the costs relating to the matrimonial home post-separation wavered between his paying nothing (because the wife had control of the home; he was forced to leave the matrimonial home because of the false sexual assault allegations; and the wife was renting the home out to friends and family and did not share the rental income with him) and one-half of the mortgage, home insurance and property taxes.

[180] During the period of time the wife and M.N. lived in the matrimonial home prior to its sale, the monthly housing costs that she had to pay totalled about $4,660 (the amounts included mortgage, property taxes, home insurance, utilities and the cost of replacing the stove). There is no question that the accommodation costs were significantly higher than it would otherwise have been due to the parties’ prior joint decision to pay off their mortgage more quickly than they had to. As a result of the wife making these mortgage payments on her own, after the husband was removed from the home, the principal on the mortgage was reduced substantially. It is only reasonable that the husband ought to contribute to some of the wife’s housing costs, since he had the benefit of the principal being paid down over this time period once the house was sold.

[181] The husband’s legitimate claim that he had lost the enjoyment of living in the home and that he could have resided in the basement of the home and not have had to incur rental costs of $1,560 a month for these 28 months[26] has been addressed in my order for general damages below.

[182] Had the wife rented a two bedroom condominium or apartment in the general vicinity of the matrimonial home, at a reasonable rate during this 32-month period for about $2,500 a month, then the difference between what she paid in housing expenses, (of $4,660 a month), and what she would reasonably have paid had she not stayed in the matrimonial home but rented reasonable accommodation of $2,500 a month, is $2,160 a month.

[183] Over the 32 months, the evidence is that the wife received rental income of about $820 a month in 21 months, totalling $17,220, or $538.13 on average (over the 32 months). Accordingly, the wife defrayed her housing costs by renting out portions of the home during this period by about $540 a month, which she received from her basement tenant and/or foreign students, taking the amount, by which her housing costs exceeded the costs she would reasonably have had to incur for herself and M.N. elsewhere, to $1,620 a month ($2,160 - $540) (“the excess accommodation cost”). As a co-owner of the home, the husband was entitled to one-half of any rent paid. The husband should be credited with having paid his share of the rent of $270 a month toward the reduction of the excess accommodation cost. The excess accommodation cost incurred by the wife is, to a significant extent, due to the paydown of the mortgage principal on a 15-year, bi-weekly amortization schedule.

[184] As a joint owner of the property, the husband had an obligation to contribute to the capital expenses incurred during the period of the wife’s possession of the matrimonial home. If the husband, in addition to effectively having contributed one-half of the rental income of $270 a month to the wife’s accommodation costs, pays $810 a month to the wife [which is 50% of the excess accommodation costs the wife incurred by staying in the matrimonial home during the 32-month period], then the wife’s actual housing costs total $3,580 a month, during the 32-months, calculated as follows:

$2,500, being the amount, I have attributed to the wife, as reasonable accommodation costs;

• $270, representing her one-half share of the rental income over this time period;

• $810, representing her one-half share of the excess accommodation costs

$3,580

[185] The husband’s actual share of the wife’s housing costs would total $2,640 a month, calculated as follows:

$1,560, being his own rent; plus

• $270, representing his 50% share of the rent the wife kept; plus

• $810, being his 50% contribution to the wife’s excess accommodation costs.

$2,640

[186] Thus, by the husband’s payment of $810 a month for 32 months to the wife, her contribution to the family’s housing costs would be $3,580 a month and the husband’s contribution to the family’s housing costs would be $2,640 a month.

[187] As referred to above, between the date of separation and the date the matrimonial home sale closed, the wife paid down $92,835.05 in capital on the mortgage registered on title to the parties’ jointly-owned home. The husband received 50% of this benefit, namely $46,417.52, back when the sale closed. Over the 32-month period of the wife’s exclusive possession, this amounts to $1,450.50 ($46,417.52 divided by 32).

[188] It is not possible to reasonably calculate the additional housing-related amount that the wife incurred (on paying set-off child support to the husband during this period). It can only be said that her above monthly expenses was somewhat greater and the husband’s was somewhat less. However, the wife earned significantly more than the husband did during this period. Further, given that each party received his/her 50% of the $92,835.05 paid by the wife toward the reduction of the mortgage principal back out of his/her share of the proceeds of the sale, the net impact on each of them of the amounts the husband contributed ($1,079 a month, exclusive of the set-off amount that the wife contributed toward the husband’s housing costs through her child support payments), is such that the actual housing costs incurred by each party during the period were:

Wife: $3,580

($1,450)[27]

$2,130 + the portion of the set-off child support referable to the child’s housing costs

Husband: $2,640

($1,450)

$1,190 - the portion of the set-off child support referable to child’s housing costs

[189] Thus, each party paid less than they reasonably would have had to for accommodation due to the paydown of the principal contained in the housing costs. Again, the fact that the wife had the benefit of staying in the house and cost of rent that the husband incurred when he was removed from the home have been dealt with in addressing the husband’s claim for damages for malicious prosecution below.

[190] Over the 32-month period in question, the wife’s accommodation costs were:

$4,660 (the total of all matrimonial home expenses)

-$2,500 (what the wife would reasonably have paid for accommodation for herself and M.N.)

-$540 (rental income used to defray housing costs)

$1,620 (excess accommodation costs incurred, to a significant extent due to the paydown of the mortgage principal on a 15-year, bi-weekly amortization schedule)

[191] If the husband (in addition to effectively having contributed $270 a month to her accommodation costs through his 50% share of the rent as a co-owner) pays $810 a month to the wife [which is 50% of the excess in accommodation costs she incurred by staying in the home during the 32-month period], then her actual housing cost during the 32 months was:

$2,500

• $270 (her 50% share of the rental income)

• $810 (her 50% share of the excess amount)

$3,580

[192] Accordingly, I order the husband to reimburse the wife the sum of $25,920 ($810 x 32 months) as his contribution toward the post-separation matrimonial home expenses.

(b) Mortgage Penalty Fees paid on the closing of the sale of the Matrimonial Home

[193] The husband asks the court to order the wife to pay him an amount equal to 50% of the cost associated with the mortgage penalty paid by the parties on the closing of the matrimonial home. The wife disagrees. She submits that the parties were jointly responsible for the mortgage and the penalty required to be paid on the closing of the sale of the home ought to be shared equally by the parties.

[194] The mortgage terms connected with the matrimonial home indicate that the parties had a three-year fixed mortgage rate from June 2016 to June 1st, 2019. The mortgage had a 15-year amortization period and, as a result, the monthly mortgage payments were very high.

[195] The mortgage renewal was due on June 1, 2019 and the matrimonial home was sold with a closing date of June 30, 2019. The wife testified that she went through the mortgage renewal process; spoke with a mortgage specialist at the bank; and it was recommended that she renew the mortgage with a six-month contract. The wife’s evidence is that she understood when she renewed the mortgage that the parties would have to make one bi-weekly mortgage payment of $1,640.43 before the closing in the month of June 2019, and that they would have to pay a penalty of $4,846.72 on closing for breaking the mortgage. However, of all of the options available, it was determined by the wife and ScotiaBank that this was the best option because it carried the lowest financial penalty for breaking the mortgage term.

[196] The husband left the issue of the mortgage renewal up to the wife entirely. He took no active steps whatsoever to speak with the Bank to determine what ought to be done with the mortgage. He had every right to be involved in this decision but chose not to do so. He admitted this on cross-examination. Further, the husband blames the wife for looking after the mortgage renewal and now seeks an order that she reimburse him for 50% of the mortgage penalty.

[197] The basis of the husband’s argument is that the wife ought to reimburse him for his 50% of these costs (the penalty fee and the one mortgage payment) because the wife did not advise him in advance of making the mortgage renewal arrangements of what the parties would have to pay. There was, however, nothing stopping the husband from speaking with the bank directly or, better yet, asking the wife what she did with the mortgage given that it needed to be renewed so close to the closing date. Instead, he left this task to the wife and now looks to her for reimbursement. The wife rose to the occasion and solely looked after all of the paperwork for the mortgage, including completing the mortgage application and corresponding with the bank.

[198] I find that there shall be no adjustments or reimbursement by the wife to the husband for either the one mortgage payment made in June 2019 or for the mortgage penalty fee paid on the closing of the sale of the matrimonial home. It was entirely reasonable for the wife to have renewed the mortgage in the manner in which she did and if the husband believed she ought to have done so differently, then it was incumbent upon him to take steps to find a better mortgage rate and bring such evidence before the court. Instead, the husband complained that he was not “kept in the loop” about the mortgage when he was aware of the due date and he knew of the closing date. As a joint owner, the husband ought to have taken some responsibility for the mortgage and he cannot now try and punish the wife for her having done so.

(c) Funds unilaterally withdrawn by the Husband from the Joint Line of Credit post-separation

[199] After separation, between September 14 and 19, 2016, the husband withdrew the sum of $12,443.02 from the parties’ joint line of credit which was secured on title to the matrimonial home. During the trial, he testified that he did so to purchase a vehicle for himself. The line of credit in favour of TD was paid off with the net proceeds of sale on June 28, 2019. The wife seeks an order requiring the husband to reimburse her for 50% of this sum. The husband agrees that the sum of $6,221.51, is owing by him to the wife as a post-separation adjustment.

(d) The decrease in the FMV of the Matrimonial Home between 2017 and 2018 post-separation

[200] The husband seeks an order that the wife reimburse him for the loss in the FMV of the matrimonial home between April 20, 2017 to June 27, 2018. According to the husband, the wife delayed in agreeing to sell the matrimonial home 2 ½ years without any justification. The husband submits that from the outset of the proceedings, he sought an order requesting the sale of the matrimonial home.[28]

[201] The husband’s position is that the FMV of the matrimonial home dropped from $1,470,000 on April 20, 2017 to $1,200,000 on June 27, 2018 due to the wife’s refusal to agree to list the home for sale and, as such, he seeks an order requiring the wife to pay him 50% of $270,000 decrease in FMV, being $135,000.

[202] To support the husband’s position, he relies on a Letter of Opinion as to the FMV of the matrimonial home he obtained on April 20, 2017 from a realtor, Nadia Cawley-Thomas, an agent at Your Choice Realty Corp. Brokerage, who opined that the FMV of the home was $1,470,000 as at that date.[29] The husband obtained a second Letter of Opinion from the same real estate agent on June 27, 2018 who opined that the value of the matrimonial home was $1,200,000 just over 2 years later.

[203] The wife disputes the husband’s position regarding the FMV of the home. The wife also obtained a Letter of Opinion from an agent, Mark Rourke, from Royal LePage, dated January 24, 2017. He opined that the FMV of the matrimonial home was between $930,000 - $970,000 as at that date.[30] Similarly, the wife had Mr. Rourke prepare a second Letter of Opinion on January 17, 2018 and he opined that the FMV of the matrimonial home as at that date was $1,140,000 to $1,180,000.[31]

[204] It is clear from both parties’ Letters of Opinion that there is a wide latitude between what their respective agents claimed the FMV to be of the matrimonial home in 2017 and 2018. The husband’s real estate agent claimed the FMV of the home went down by $270,000 in a year and the wife’s real estate agent claimed the FMV of the home went up by $210,000 in the same year. However, the difference asserted by the husband’s real estate agent was based on the period between April 2017 and June 2018 and the difference asserted by the wife’s real estate agent was based on the period between January 2017 and January 2018.

[205] It is the wife’s evidence that she had an appraisal completed as to the value of the matrimonial home in June 2018, which was prepared by Assurance Appraisals Inc. This report sets out that the FMV of the matrimonial home as at July 2, 2018, was $1,150,000.[32] According to the wife, she sought to purchase the husband’s interest in the matrimonial based on this appraisal report but the husband never responded to her proposal.

[206] Eight months after the appraisal report, on March 11, 2019, the parties agreed to list the matrimonial home for sale. On May 14, 2019, the parties’ jointly-owned matrimonial home was sold. The sale price of the matrimonial home was $1,070,000. After the payment of real estate commission, the Trust Ledger statement from the sale of the home provides that the funds received from the purchaser on closing was $1,020,721.82.[33]

[207] It is clear from the various Endorsements in this matter that the husband wanted the matrimonial home sold from the outset. This is confirmed in the Endorsement of Frank, J., dated January 30, 2017, which states “[t]he parties cannot agree on the manner in which the matrimonial home is to be dealt with. The mother wishes to buy the father’s interest out. The father wishes to have the property sold on the market in the hopes of its sale price benefitting from a bidding war”.

[208] The wife’s position is that there was an initial delay in the sale of the matrimonial home as a result of the criminal charges which is why, according to her, the home could not be sold in 2017. There is no evidence to support the wife’s statement in this regard. The criminal charges did not prevent the sale of the matrimonial home. Thereafter, the wife submits that she wanted to purchase the husband’s interest in the matrimonial home and requested to do so in accordance with the FMV set out in the appraisal report she obtained dated June 2, 2018. However, she submits that the husband refused her offer to purchase the house. According to the wife, the parties could not agree on a buy-out price for the matrimonial home, which led to their agreement in March 11, 2019, to engage an agent and list the house for sale.

[209] There are many reasons why the matrimonial home may not have been sold once the wife initiated these proceedings. According to the wife, she felt it was important for M.N. to remain in the matrimonial home and her initial reluctance to sell the home was based on a desire to see if she could purchase the husband’s interest in the home. I accept that the husband wanted the home to be sold. However, at no time in the proceedings, did the husband bring a motion for the sale of the matrimonial home. It was his right to do so as a joint owner and he could have brought a motion under the Partition Act, R.S.O. 1990, c. P.4, to compel the sale of the matrimonial home, yet he did not do so. On January 30, 2017, Frank, J. noted in her endorsement that the husband wanted to have the house sold but the wife wanted to buy out his interest in the home. Therefore, he had good reason to believe in January 30, 2017 that the wife would not agree to a sale. He could have at any time thereafter brought a motion for sale. He was represented by counsel early in the proceedings. In these circumstances, he cannot, in my view, attribute the entire blame in the delay of the sale of the home onto the wife.

[210] Furthermore, the evidence put forward by the husband to support the claim that the FMV of the home dropped by $270,000 between April 20, 2017 and June 27, 2018, is irrelevant to the issue he has raised. The husband took the position that these two particular dates were the dates that were relevant to the assessment of his claim that the wife’s delay in agreeing to sell the matrimonial home reduced amount of proceeds to which he would otherwise have been entitled. The husband asserted that the wife delayed the sale of the matrimonial home for 2 ½ years. In his Answer, dated January 13, 2017, the husband sought an order for sale. The wife consented to the sale of the home on March 11, 2019, two years and two months later. Yet, the husband has valued his alleged loss on the basis of the value of the home on April 20, 2017 and June 27, 2018, a period of 14 months, without any explanation as to why he did so. Why he chose these dates is a matter of speculation. In light of the lack of evidence regarding the choice of dates, if the husband has any claim in relation to the loss he allegedly incurred as a result of the wife’s alleged refusal to sell the matrimonial home until March 11, 2019, the loss should be calculated on the basis of the value of the home on the date that he first sought the sale (January 13, 2017) and the sale price. He did not provide any evidence of the value of the property on January 13, 2017.

[211] In addition, the evidence on which the husband purported to rely regarding the loss of equity in the matrimonial home due to the wife’s alleged delay in consenting to its sale was put forward by way of two letters of opinion from a real estate agent. A Letter of Opinion as to the value of a matrimonial home is just that: an opinion of FMV. It is not written as an expert report and it, in fact, contains a paragraph specifically confirming that it is not intended to be used in a legal proceeding, nor is it an appraisal. While the wife had also provided Letters of Opinion, she ultimately produced an appraisal of the property, prepared by a certified real estate appraiser in June 2018, which she had obtained for the purpose of making an offer to settle to him at that time. Therefore, the husband would undoubtedly been live to the difference between a letter of opinion and an appraisal. He did not have appraisals prepared to support his position regarding his alleged loss.

[212] In my view, a decline in the FMV of the matrimonial home is not correctly framed as a post-separation adjustment to the equalization payment. A post-separation adjustment is an accounting exercise to address items paid for by one spouse when an item ought to have been shared by the parties. The husband essentially asks this court to rely on the wife’s bad conduct, what he refers to her delay in agreeing to sell the house, to pay him a sum of money. Essentially, he is trying to make an argument that he is entitled to an unequal division of NFP pursuant to s.5(6) of the FLA. To be successful in this argument, the husband would have to demonstrate that it would be unconscionable for the court not to pay him a sum of money equal to one-half of the decline in the FMV of the matrimonial home between 2017 and 2018 based on a factor outlined in s.5(6) of the FLA. The husband did not rely on s.5(6)(h) or any other subsection in support of his position that the wife failed to consent to the sale of the home.

[213] In any event, as a result of the significant reduction in the principal on the mortgage between the date of separation and when the matrimonial home sale transaction closed, the husband’s alleged loss would not have been $135,000 as alleged but, rather, was approximately $111,500, based on the mortgage payout summary tendered as Exhibit #29 at trial by the wife. Again, I have not agreed with the April 20, 2017 to June 27, 2018 approach taken to the alleged loss claimed by the husband. The husband’s claim is denied.

(e) Cash Withdrawals made by the Wife prior to Separation

[214] The husband seeks an order that the wife pay him 50% of the cash withdrawals he claims she made prior to separation. His position is that the wife improvidently depleted her NFP by withdrawing a total of $21,000 from the parties’ joint bank accounts from February 27, 2015 to and including April 7, 2016 without his consent or knowledge. As a result, the husband seeks an unequal division of NFP based on unconscionability to have the wife adjust the equalization payment she owes him by paying him an additional sum of $10,500.

[215] The wife’s evidence was that the parties were doing renovations to the matrimonial home in and around 2015 and 2016 and that all cash withdrawals were used to pay for these home renovations and for a family vacation taken to the United States. The wife was able to produce some invoices from various tradespeople for some of the cash withdrawals initially claimed by the husband. Further, the wife detailed the renovations completed to the house in her evidence-in-chief at paragraph 101 of her affidavit, sworn on September 8, 2021. The wife’s evidence was that starting in January 2016, the parties hired contractors for the main floor renovations and paid them with cash. Further, the wife deposes that because the parties were removing bearing walls in the main floor and did not want to use a post to carry the load, they hired an engineer to design the removal of the walls and load distribution on the other walls. The wife’s evidence is that the cost of the engineer was $5,000 and paid for in cash in January 2016.

[216] The wife had not maintained her records from 2015 and 2016 beyond what she has produced. However, the wife did provide a detailed explanation for the cash withdrawals. She submitted that the parties completed the basement renovation on their own in 2015 and bought renovation tools and materials from private ads on Kijiji with cash. She also deposed that the parties were responsible to purchase the raw materials for the contractors which they purchased from Home Depot, Lowes and private sellers. The wife’s evidence is that the payments came from different sources, including the parties’ home equity line of credit with TD Bank, salaries, savings and credit cards with RBC and TD. The wife maintains that she was the main payor of these purchases because:

a. She earned a higher salary and contributed more to the home renovations than did the husband;

b. She arranged with her employer to deposit part of her salary to TD bank and the rest to RBC Bank;

c. Her arrangements with Torys LLP was that for each biweekly salary payment to be paid as follows: $1,600 to her TD Bank account and the remainder of her salary to her RBC bank account;

d. The TD portion of her salary covered the parties’ mortgage payments and the RBC portion of her salary was used to pay for the home renovations;

e. Many of the higher-priced renovation materials, including hardwood flooring and kitchen cabinetry, was purchased with the wife’s TD Visa Infinity credit card;

f. To pay off the large balances on her TD Infinity credit card, the wife frequently had to withdraw cash from her RBC account to pay off the TD credit card;

g. She also paid cash from her own bank account to the husband because he was dealing with certain vendors and contractors.

[217] According to the wife, the renovations cost the parties over $90,000. Additionally, the wife’s evidence is that the parties travelled by car to Chicago and Washington during the summer of 2015. The wife deposes that she paid for the expenses while they drove along with all purchases. Her evidence is that she carried USD funds to avoid the high exchange rate and extra bank fees while they were away.

[218] There is no evidence put forward by the husband or the wife that the sum of $21,000 was withdrawn and used for the wife’s sole benefit or for the purpose of the wife improvidently depleting her NFP.

[219] Specifically, s.5(6)(d) of the FLA allows a court to order an “unequal” equalization amount if it would be unconscionable to merely equalise, having regard to a spouse’s intentional or reckless depletion of his or her net family property. The court must weigh all of the circumstances surrounding the transfers in order to determine whether it would be unconscionable to make an equal division between the wife and husband: see Stone v. Stone, (2001), 2001 CanLII 24110 (ON CA), 203 D.L.R. (4th) 257 (Ont. C.A.), at para. 16.

[220] The case law dealing with the issue of unconscionability demonstrates that the threshold is significantly high. The wife has provided a fairly detailed explanation to account for the cash withdrawals of $21,000 over a 14-month period, namely, that these funds were used to improve and renovate the matrimonial home and to enable the parties to travel to the US in 2015. The onus was on the wife to delineate in some fashion where the money went. In my view, she met that onus. I find that the wife did not improvidently deplete her NFP and decline to make an order that there should be unequal equalization payment in favour of the husband by $10,500.

Total Post-Separation Adjustments to be made to the EP owing by the Wife to the Husband

[221] Accordingly, based on my findings above, the post-separation adjustments to the EP are as follows:

Post-V-Date Adjustments

Husband to pay Wife

Wife to pay Husband

Comments

Matrimonial home expenses post V-date

I found that the H owes the W $25,920 on account of post V-date matrimonial home expenses (over and above his contribution by way of his share of the rental income kept by the wife)

Mortgage Penalty

I found both parties to be responsible for the mortgage penalty and neither owes the other a post V-date adjustment.

Withdrawals from Joint Line of Credit by H post-Vdate for his sole benefit

H to pay W the sum of $6,221.51

Not in dispute. H agrees with W he withdrew $12,443.02 for his car post-V-date from their joint line of credit

Decrease in FMV of the matrimonial home between 2017 and 2018

H seeks reimbursement from the W in the sum of 50% of the $270,000 loss, (in the sum of $135,000) in FMV of MH between 2017 and 2018 due to the wife’s delay in agreeing to sell the MH for 2 ½ years . I found that the husband did not prove that he is entitled to this relief.

Cash Withdrawals made by the W pre V-date

H seeks reimbursement for 50% of $21,000 (in the sum of $10,500) being the cash withdrawals made by the W prior to V-date from Feb. 2015 and April 7 2016 I found that the husband did not prove this claim.

Total Post-V-date Adjustments

H to pay W, as post- V-date adjustment, the sum of $31,511.51 ($25,920+$6,221.51)

W owes the H an EP of $171,594.63 $172,885.35 less $31,511.51 The outstanding EP owing by the wife to the husband is $141,373.83 $136,083.12

Debt owing to W for the Mahr of $209,000

H to pay wife $209,000

Amount owing by one spouse to the other

H owes W the sum of $72,916.88 $67,626.16

Occupation Rent

[222] The husband seeks occupation rent from the wife in the sum of $1,800 a month over the 57 months, between the date of separation and the date when the home was sold, for a total of $102,600.

[223] According to the husband, the wife was able to rent out two bedrooms in the basement of the matrimonial home as well as the guest room on the main floor for a total of $2,300 a month. The evidence on the record confirms that the wife had rented the basement apartment for about $820 a month for a period of time and, in addition rented several rooms to foreign students for $850 a month. According to the husband, he could have easily stayed in the basement apartment unit of the matrimonial home if he had not ben charged with sexually assaulting the wife.

[224] As a result of these false charges, the husband was forced to rent an alternative accommodation. The husband’s current rental costs are $1,570 a month.

[225] In Higgins v. Higgins, 2001 CanLII 28223 (ON SC), [2001] O.J. No. 3011, the non-occupying spouse sought occupation rent from the occupying spouse, citing s. 24(1) of the FLA as the statutory basis for this claim, which says, in part:

24(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs …

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse; (Emphasis added)

[226] As Quinn, J. points out in Higgins, at para. 43:

“[A]n award under s. 24(1)(c) is available only where an order for exclusive possession has been made under s. 24(l)(b) and the common law remedy of occupation rent is not saddled with such a prerequisite. Nonetheless, when determining whether to make an award under s. 24(1)(c), I think a court is likely to consider the same factors as are applicable on a claim for occupation rent. This is because payments under s. 24(1)(c) are in the nature of occupation rent”

[227] In Foffano v. Foffano, [1996] O.J. No. 3284 (S.C.), after adopting the comments of Hill, J. in McColl v. McColl, (1995), 1995 CanLII 7343 (ON SC), 13 R.F.L. (4th) 449 (Ont. S.C.), the Court states, at para. 22-26:

[22] “Finally it should be noted that under s. 34 of the Family Law Act, respecting the power of the court to make an interim or final support order, subparagraph (1)(d) provides:

In an application under section 33, the court may make an interim or final order,

(d) respecting any matter authorized to be ordered under clause 24(1)… (c)… (matrimonial home)

[23] The point to be made is that the routine application of the law on occupation rent to joint tenants or tenants in common who are married and are disputing over the matrimonial home will often run into conflict with the more flexible provisions of the Family Law Act designed to protect children and dependent spouses. If, as the present law seems to be, no ouster need be proved for a joint tenant not in possession of the matrimonial home to claim occupational rent, that opens the door to such claims solely to counter legitimate claims for spousal and child support, and equalization of net family properties. That was alluded to by Hill J. in McColl v. McColl (supra) at p. 456. It makes little sense, in the vast majority of cases, that a non-dependent spouse or parent should be entitled to occupation rent simply because he or she left the matrimonial home and allowed his or her dependent spouse and children to occupy it. The right to occupation rent arose from the equitable remedy granted to a co-tenant not in possession to obtain an accounting from the tenant in possession, and at least one court considered that the use of the property in the affairs of “the whole family” did not give rise to the payment of occupation rent.

[24] It should also be noted, having regard to the judgment of Hill J. in McColl v. McColl (supra) that claims for occupation rent are quite expensive to pursue, requiring expert evidence as to possible rental rates for the property in question and the usual time-intensive taking of accounts respecting expenses and improvements. Most clients in family law litigation would find the prosecution and defence of such claims beyond their financial resources.

[25] I conclude that where the property in question is a matrimonial home, a claim for occupation rent by one spousal co-tenant against the other will be granted only in the exceptional case. I agree with the view expressed by Hill J. In McColl v. McColl (supra) at p. 457:

A number of factors must be considered including when the claim was first raised, the duration of the occupancy, the inability of the non-resident spouse to access her/his equity in the property, and the other compelling claims for adjustment or compensation in the litigation. (emphasis is mine)

[26] In order to succeed in a claim for occupation rent respecting a matrimonial home, it must be shown by a spouse not in possession that the remedies to gain possession of the property, to receive payments from the spouse in possession or support from him or her under the Family Law Act, are either not available or insufficient to render justice between the parties.

[228] In Saroli v. Saroli, 2021 ONSC 4450, at paras. 310 and 312, it was held that,

Occupation rent is a form of relief that has its genesis in agricultural and commercial disputes, but it has been recognized as a common law remedy available to married spouses since the 1970s: Irrsack v. Irrsack (1978), 1978 CanLII 2158 (ON SC), 22O.R. (2d) 245 (H.C.), aff'd (1979), 1979 CanLII 1647 (ON CA), 27 O.R. (2d) 478 (Ont. C.A.), leave to appeal to the S.C.C. ref'd [1980] 1 S.C.R. viii. The court has discretion to award occupation rent in the family law context if it is reasonable and equitable to do so: Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] O.J. No. 2096 (C.A.)

[312] [The] common factors are:

a) the timing of the non-resident spouse's claim for occupation rent;

b) the circumstances under which the non-resident spouse left the home;

c) the duration of the exclusive occupancy;

d) whether the non-occupying spouse moved for the sale of the home;

e) the inability of the non-resident spouse to realize on their equity in the property;

f) any financial hardship experienced by the non-resident spouse as a result of being deprived of their equity in the property;

g) any reasonable credits to be set off against occupation rent for expenses associated with the home;

h) the conduct of both spouses, including any failure to pay support;

i) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid child support;

j) whether the occupying spouse has increased or decreased the selling value of the property;

k) any other competing financial claims in the litigation

[229] While the factors set out in Saroli, at (a), (b), (c) and (i) above are factors that support a claim for occupation rent, in this case, when one considers the other factors set out above, and very particularly, the manner in which I have disposed of competing financial claims in these Reasons, I find that no order should be made on account of occupation rent.

[230] In dealing with the issue of the loss in the FMV of the matrimonial home above, I have already referred to the fact that the husband did not move for the sale of the home and therefore did not realize on the equity in the home.

[231] Particularly given the terms of these Reasons, it cannot be said the husband experienced financial hardship as a result of his being deprived of his equity in the property. He benefitted from the significant reduction in the principal on the mortgage that occurred prior to the sale of the property. He will have also benefitted from the rent that the wife received from the rental of the basement and/or rooms of the house prior to its sale. Further, as a result of the determination of the issues in these Reasons, he will essentially have only been required to contribute reasonably toward the maintenance of the property (which he jointly owned) prior to its sale, my having imputed $2,500 to the wife as the cost that she would reasonably have had to incur if she were to have rented accommodation for herself and M.N.; by my having taken into consideration the husband’s lost opportunity to reside in the basement of the matrimonial home prior to its sale; and by the requirement that the wife pay spousal support to the husband during this period.

Child Support

[232] The wife is seeking both retroactive and prospective child support from the husband.

[233] Section 15.1(1) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), provides the authority for the court to make a child support order and confirms that any such order is to be in accordance with the CSG. Specifically, s.15.1(1) provides as follows:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

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 pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) 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 or interim order as it thinks fit and just.

[234] Section 3 of the CSG creates a presumptive rule that, unless otherwise provided, the amount of support payable for a child is to be determined based on the income of the spouse against whom the order is sought.

[235] "Income" is defined in s. 2 of the CSG as meaning "the annual income determined under sections 15 to 20."

[236] Section 15 of the CSG provides that, subject to any written agreement between the parties, a spouse's annual income is determined in accordance with sections 16 to 20 of the CSG.

[237] Section 16 establishes the basic rule that a spouse's income should be determined based on the spouse's "Total Income" on line 150 of the T1 General tax return:

Calculation of annual income

16 Subject to sections 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.

[238] However, section 17 provides:

Pattern of Income

17(1) If the court is of the opinion that the determination of a spouse's annual income under s. 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[239] Again, the husband paid the wife child support in the sum of $418 a month since the order of Frank, J., dated February 2017, except for 8 payments he missed.

Retroactive Child Support

Wife’s Position

[240] Specifically, the wife seeks a retroactive adjustment of child support arrears, fixed in the sum of $18,094, for the period November 1, 2016 to September 1, 2021, calculated as follows:

Year

Husband’s Income based on Notices of Assessment

Child support Table amount

Child support Paid by the Husband

Child support the Husband should have paid

Running Balance

2016

$43,230

$390

$nil paid

$780 (for Nov. and Dec.)

$780

2017 CSG Table version was Dec. 31, 2011 until Nov 22, 2017

$55,522

$512

$4,598 (11 months)

$6,144 (12 months)

$6,924

2018

$57,794

$530

$5,016 (12 months)

$6,360 (12 months)

$13,284

2019

$85,289

$795

$5,016 (12 months)

$9,540 (12 months)

$22,824

2020

$83,099

$770

$2,926 (7 months) H missed 5 payments of $418 = $2,090 (Feb.; Sept-Dec ’20)

$9,240 (12 months)

$32,064

2021

$74,100

$692

$3,762 (9 months) H missed 3 months of $418 = $1,254 (Aug-Oct ’21)

$6,920 (10 months)

$38,994

Retroactive child support arrears

$21,318*

• I calculate that the H paid $21,318 but both parties submit he paid $20,900)

$38,984

$18,094 ($38,994 - $20,900)

Husband’s Position

[241] The husband acknowledges his obligation to pay child support for M.N. from November 1, 2016 to and including October 2021. He began paying child support on February 1, 2017 in accordance with the order of Frank, J. in the sum of $418 a month, which amounts to 57 months. According to the husband, he missed 8 payments of child support in this time period, namely in February 2020, September 2020, October 2020, November, 2020, December 2020, August 2021, September 2021 and October 2021.

[242] It is the husband’s position, however, that for 27 months, namely, from March 2017 to June 2019, M.N. resided with the parties pursuant to a shared residency schedule set out in the consent order of Goodman, J., dated January 24, 2018, such that she resided with the husband six nights out of fourteen, which amounts to “shared parenting time” as defined in s.9 of the CSG. For this 27-month period, the husband submits that the child support payable by him ought not to be the full Table child support but rather, to be calculated on the basis of “setting off” what each parent would have to pay the other pursuant to the tables set out in s. 9 of the CSG, pursuant to the following calculations:

a. In 2017, the husband’s income was $55,511 and the wife’s income was $92,080. Based on the CSG, in 2017, the husband’s Table child support obligation was $503.11 a month and the wife’s table child support obligation was $818, using the Table version December 31, 2011 which was in place until November 27, 2017. The “set-off” of the parties’ Table child support obligations for the ten-month period from March 1, 2017 to and including December 31, 2017 is $3,150 or $315 a month the wife would have had to pay the husband;

b. In 2018, the husband’s income was $57,794 and the wife’s income was $93,277. Based on the CSG in 2018, the husband’s Table child support obligation was $534 a month and the wife’s Table child support obligation was $857 a month, using the Table version November 22, 2017. The “set-off” of the parties’ table child support obligations for this 12-month period is $3,876, or $323 a month the wife would have had to pay the husband.

c. According to the husband’s calculations of his income for child support purposes, in 2019 his income was $64,828 and the wife’s income was $104,126. Based on the CSG in 2019, the husband’s Table child support obligation was $603 a month and the wife’s table child support obligation was $943 a month, using the Table version November 22, 2017. The “set-off” of the parties’ Table child support obligations for the five-month period January 1, 2019 to and including May 1, 2019 is approximately $1,700, or $340 a month the wife would have had to pay the husband. Again, M.N. stopped seeing the husband on June 2, 2019.

The Calculation of the Husband’s Income in 2019 and 2020 for Child Support Purposes:

[243] The parties disagree as to the husband’s income in 2019 and 2020 for child support purposes. The wife relies on the husband’s Notices of Assessment in 2019 of $85,289 and in 2020 of $83,099 to calculate his child support obligation. It is the husband’s position, however, that in 2019 he received a one-time severance payment of $20,461 when he was terminated from his employment, which ought not to be included in the calculation of his income for child support purposes. [34] Accordingly, the husband’s position is that his income in 2019 for child support purposes is $64,828 and not $85,289 as calculated by the wife.

[244] Similarly, in 2020, the husband withdrew the sum of $10,000 from his RRSP to meet his expenses which was a one-time, non-recurring event and therefore, he submits that this income ought not to be included in the calculation of his income for child support purposes in 2020. According to the husband, his income in 2020 for child support purposes is $73,099 and not $83,099 as calculated by the wife.

[245] In taking the position that his one-time severance payment ought not to be included in his 2019 income and that his one-time withdrawal of funds from his RRSP ought not to be included in his 2020 income, the husband relies on s.17(1) of the CSG, which provides as follows:

Pattern of income

17 (1) 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, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [emphasis added]

[246] The husband entered into evidence a letter from his previous employer, Vincent & Associates, dated March 9, 2020. The letter confirms that the husband’s employment was terminated effective June 5, 2019 and he was offered a one-time severance payment of $20,461.53. The letter specifically states that the husband would not have been paid the sum of $20,461.53 were it not for the termination agreement and the severance “should not be construed as regular earnings.” Therefore, according to the husband, his income in 2019 for child support purposes is $64,828 and not $85,289 as calculated by the wife.

[247] Similarly, in 2020, the husband withdrew the sum of $10,000 from his RRSP and submits he did so to meet his expenses because he was unemployed for a four-month period. He submits that he has not withdrawn funds regularly from his RRSP and that this was a one-time, non-recurring event and therefore, ought not to be included in the calculation of his income for child support purposes in 2020. According to the husband, his income in 2020 for child support purposes is $73,099 and not $83,099 as calculated by the wife.

[248] The issue is whether I exercise my discretion under s. 17 on the basis that the income under s. 16 would not be the fairest determination of the husband’s income for that year.

[249] I note that the onus is on the payor-spouse to justify a deviation from the s. 16 method of determining income: see Fung v. Lin, 2001 CanLII 28193 (ON SC), [2001] O.J. No. 456 (S.C.).

[250] The case law confirms that this issue is factually driven and determined by what is appropriate in the particular circumstances of the case.

[251] In Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311, at para. 97, the Court of Appeal for Ontario, for instance, held that RRSP income is presumptively part of a spouse's income for child support purposes, since RRSP income is included in "total income" on the T1 General form.

[252] At paras. 103-104, J. Simmons J.A. notes as follows:

[103] The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception for RRSP withdrawals has been provided in Schedule III. Although I would acknowledge the possibility that the facts of a particular equalization could in theory reach the threshold of unfairness, I have no evidence about the specifics of the equalization calculation that occurred in this case and cannot so conclude.

[104] Similarly, I do not consider the fact that the father may have used some or all of the RRSP on account of his house purchase as a factor creating unfairness in terms of characterizing the RRSP. Particularly in circumstances where he was not working, the father's first obligation was to ensure that his children were properly supported. The fact that the father chose instead to buy a four-bedroom house should not deprive his children of an available source of child support.

[253] In Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7th) 17, the Court of Appeal upheld the exclusion of RRSP withdrawals where, in the Court’s discretion, it was considered appropriate in the circumstances not to include them. In that case, the withdrawals were found to be “non-repeating encroachments on capital” that were used by the payor to fund the costly litigation and not to enhance the payor’s lifestyle: at para. 24.

[254] In Kotyck v. Kotyck, 2017 ONSC 7261, the Court considered whether the $57,261 the payor received from the collapse of his United States 401(K), the equivalent to a Canadian RRSP, should be included in his income. The court noted that RRSP income is presumptively part of a parent’s income for child support purposes and no exception for withdrawals has been provided in Schedule III of the Guidelines. Justice Hood found that the payor had not demonstrated any unfairness in including the equivalent of the RRSP withdrawal in his income: at para. 9.

[255] In Knight v. Frobel, 2018 ONSC 3651 (Ont. Div. Ct.), the Divisional Court upheld the trial judge’s decision to include a severance payment in the calculation of the payor’s income for a given year.

[256] In MacDonald v. MacDonald, 1997 ABCA 409, 57 Alta. L.R. (3d) 195, the Court of Appeal overturned the trial judge’s decision when the trial judge found that bonuses, stock options and a severance package were property, rather than income. They said that a bonus is considered income for tax purposes and that if any bonus had previously been received by the payor, the Court would look upon it as income for purposes of calculating child support under the Guidelines: at para. 15. The Court of Appeal also found that a severance package was an acceleration of income and a direct income replacement, so it should be added to any other income the payor earns during the period, at para. 17.

[257] In Molitor v. Andreou, [2005] O.J. No. 3815 (S.C.), Mr. Justice Clark found, at para. 7, that a payor does not have the right to forego readily available income to the prejudice of his or her child in terms of reduced support and the Court imputed income to the payor, when he made such a deferral. This Court, in that instance, also included in income for purposes of calculating child support, a one-time payment of USD $353,288, which was a payment settling a collusion claim: at para. 9.

[258] When I consider all of the evidence, I am not prepared to exclude from the husband’s income the $20,461.53 - the one-time severance payment he received in 2019. While this sum was clearly not part of his regular earnings, the severance was intended to be income replacement for the husband given that he was being terminated and, as such, ought to be added to the other income he earned in that year. Further, the husband testified that after he was terminated he could not find work for four months. As a result, the severance was not a windfall to the husband but was used by him as income replacement. I am not satisfied that the husband has met the burden on him to establish unfairness if the severance payment be included as income.

[259] I, therefore, find that the husband’s income for the 2019 year to be $85,289 for child support purposes.

[260] Similarly, I am not satisfied that the husband has met the burden on him to establish unfairness should the $10,000 RRSP withdrawal in 2020 be income included as income. This amount is presumptively to be included. Again, the burden is on him to justify a deviation from the s. 16 method of determining income on the basis that it would create unfairness. The husband’s blanket statement that he used these funds to meet his expenses, without any specificity, does not satisfy the onus on him to establish an “unfairness”.

[261] I note in this regard that the “fairness” of income determination in s. 17 of the CSG refers to fairness as interpreted with the objectives of the CSG in mind, especially “the objectives of children benefiting from the financial means of their parents, and consistent treatment.”

[262] I, therefore, find the husband’s income for the 2020 year to be $83,099 for child support purposes.

The Calculation of the Wife’s Income for Child Support Purposes in 2016, 2017 and 2018

The Husband’s Position

[263] The husband disputes the wife’s calculation of her income for support purposes because she fails to include unreported rental income in the calculation of her income in 2016, 2017 and 2018.

[264] In his closing submissions, the husband calculates the wife’s income for child support purposes to be as follows:

a. In 2016, he adds $3,280 ($820 x 4 months) to her reported income of $74,348, taking her Total Income to $77,628;

b. In 2017, he adds $10,200 ($850 x 12 months) to her reported income of $81,800, taking her Total Income to $92,080;

c. In 2018, he adds $4,250 ($850 x 5 months) to her reported income of $89,027, taking her Total Income to $93,277.

The Wife’s Position

[265] Despite the fact that the wife acknowledged during her cross-examination that she was in receipt of rental income, she failed to add any such rental income to the “Total Income” she reported in her income tax returns. She simply ignores this income

Analysis

[266] The wife tendered a Residential Tenancy Agreement, dated September 6, 2016 as Exhibit #73 at trial, which is an agreement between the parties and a tenant, Comla Ghafuri. The date of the Residential Tenancy Agreement began on July 10, 2016, just after the date of separation. The terms of this agreement are that the tenant, Ms. Ghafuri, would pay rent in the sum of $820 a month in exchange for occupying the basement level apartment in the parties’ matrimonial home. The period of the lease was from September 1, 2016 to the end of August 2017.

[267] A letter from Ms. Ghafuri, dated February 26, 2018, to the wife, in which she terminated the lease for the basement apartment was entered as Exhibit #72 at Trial. This letter was Ms. Ghafuri’s notice to the wife that she would be terminating the Residential Tenancy Agreement and be leaving the basement level apartment in the matrimonial home by May 1, 2018.

[268] Accordingly, the wife received the following rental income from Ms. Ghafuri:

a. In 2016, the wife earned $3,280, being 4 months of rent at $820 a month;

b. In 2017, the wife earned $9,840 (12 months x $820); and

c. In 2018, the wife earned $3,280 (4 months x $820).

[269] None of this rental income is reported on the wife’s income tax returns.

[270] During the wife’s cross-examination she was asked whether she rented out other rooms in the matrimonial home other than the portion of the home rented to Ms. Ghafuri, after the date of separation. The wife vehemently denied having done so, other than the rental agreement between her and Ms. Ghafuri. The husband cross-examined the wife about “students” he believed were renting rooms in the matrimonial home. As described above in the Credibility section of these Reasons, the wife concocted a story that she was providing tutoring to students in English and other subject areas and that when their daughter sent a text to the husband about “students”, M.N. was referring to students the wife had tutored. The wife went so far to testify that she advertised her tutoring services on Facebook. Ultimately, the wife admitted that she had lied under oath. Ultimately, the wife acknowledged that she did have foreign students staying in the matrimonial home in exchange for rent. She testified that she had lied because the agency which connected her with the foreign students had not paid her the monies due to her and she had to sue them in Small Claims Court and, therefore, she did not initially tell the truth since she did not even receive the rental income she was entitled to receive. The wife’s story in this regard was totally implausible. The wife ultimately tendered into evidence the Small Claims Court application and Defence as Exhibits #70 and 71 at this trial.

[271] The Small Claims court proceeding, Court File number SC-19-5507-00, demonstrates that on May 14, 2019, the wife issued a claim against Carolina Morfin, who is the owner of an agency known as C&M Homestay Agency. In the wife’s claim, she set out that she has been hosting students through C&M Homestay Agency since the summer of 2018; she was to be remunerated the sum of $800 every 4-weeks, based on a single room hosting and two-meal meal plan; and that she was owed the sum of $3,200 from the agency. The Defence filed by the agency was entered into the evidence as Exhibit #71 at trial and confirms that the wife hosted students through the agency but there was a dispute as to how much rental money was owing to the wife. The agency claimed that the total amount owing to the wife was $1,574.50, not $3,200.

[272] The wife provided no evidence as to whether she received these funds from the Agency. Further, the wife did not detail the total sum of rent she received from hosting students from the summer of 2018 to the spring of 2019 when she commenced the Small Claims Court proceeding.

[273] The wife did admit that M.N. had become close with one of the foreign students who was renting a room in the home, when she had texted the husband.

[274] Accordingly, it is clear that the wife was also in receipt of rental income from students from the summer of 2018 to and including February of 2019. Notwithstanding the wife’s evidence, she did not recalculate her income in her closing submissions or acknowledge that she earned additional rental income, which she did not report in her Income Tax Returns.

[275] On this issue, I do not accept the wife’s evidence. I find that over this eight-month period, from July 2018 to and including February 2019, based on the Small Claims Court proceeding, the wife was in receipt of, at least, $800 a month from hosting foreign students which income she did not claim. This would add $4,800 of rental income to the wife’s income in 2018 and $1,600 of rental income to the wife’s income in 2019. It is also possible that there are months when the wife could have been earning up to $1,600 a month from foreign students because it is clear that the agency was prepared to pay the wife $800 every month for a single room.

[276] Although the husband added the wife’s unreported rental income to the income reported by her in her Income Tax Returns in the given years, he did not consider that the wife, having not reported the rental income, received the additional benefit of not having to pay income taxes associated with this income. Accordingly, the rental income has to be grossed up to determine how much gross rental income the wife would have had to earn at her current marginal income tax rate in each year, in order to have this non-taxable income. Attached to these Reasons as Schedule “A” are four separate Divorcemate calculations which have added the non-taxable rental income to the wife’s income in 2016, 2017, 2018 and 2019, and result in an increase in the gross-up of wife’s income as follows:

a. In 2016, non-taxable rental income of $3,280 was added to her employment income of $74,248. With the gross up calculation, I find that the wife’s adjusted income for child support purposes is $78,909 in 2016;

b. In 2017, non- taxable rental income of $9,840 was added to her employment income of $81,880. With the gross up calculation, I find that the wife’s adjusted income for child support purposes is $96,499 in 2017.

c. In 2018, non-taxable rental income of $8,080 was added to her employment income of $89,027.[35] With the gross up calculation, I find that the wife’s adjusted income for child support purposes is $101,864 in 2018; and

d. In 2019, non-taxable rental income of $1,600 was added to her employment income of $104,126. With the gross up calculation, I find that the wife’s adjusted income for child support purposes is $106,951 in 2019.

[277] The wife testified that she obtained her real estate brokerage licence in 2020 and earned a one-time commission of $26,775 in this year that ought not to be considered in the calculation of her total income in 2020 for child support purposes, since it is non-recurring. The wife’s 2020 Income Tax Return lists her gross real estate commission at $23,294.25 and net commission at $13,342.90. It is this net commission that was added to the wife’s T4 salary income of $107,117.70, that resulted in her Total Income being reported at $120,460 in 2020. Upon questioning from the Court, the wife explained that she earned real estate commission as a self-employed person, as result of the purchase she and her new partner made of a new home together. I do not accept the wife’s evidence that her commission income is a one-time non-recurring event. The wife obtained her brokerage licence for a reason. Presumably she will continue to be involved in some real estate transactions in addition to her employment at Torys LLP. In any event, commission income is presumptively to be included by the CSG. Again, the burden is on the wife to justify a deviation from the section 16 method of determining income on the basis that it would create unfairness. The wife did not meet this burden. Accordingly, I find the wife’s income in 2020 for child support purposes to be $120,460.

The Child Support owing when M.N. shared her residency with the Parents

Husband’s Position

[278] Again, the husband’s position is that the “set-off” of each party’s Table child support obligation should apply for the 27 months when M.N. was residing with both parents pursuant to an agreed upon shared-parenting schedule from March 2017 to June 2019, such that she was residing with the husband six nights out of 14. [As set out in paragraph [49] above, I accept the husband’s evidence that the parties agreed to this parenting schedule and that M.N. began sharing her residence pursuant to this schedule starting in March 2017, even though the consent order of Goodman, J., is dated January 24, 2018.]

[279] The wife submits that s.9 of the CSG ought not to apply to M.N. She testified that M.N. often did not follow the shared parenting schedule and, when she did, she was unhappy. Further, the wife submits that the husband forced the shared parenting schedule on M.N.

[280] For the period November 1, 2016 to and including October 1, 2021, the wife seeks an order that the husband pay full Table child support for M.N., regardless of the shared-parenting schedule, for the following reasons:

a. Even though the parties had agreed to a shared residency parenting schedule while at a case conference before Goodman, J., dated January 24, 2018, the schedule was constantly changing and was not adhered to;

b. The midweek parenting time was forced on M.N. by the husband and she believes it was not quality time. According to the wife, M.N. having to spend time with the husband during the mid-week caused tension for M.N. which caused her to cut the access time short and come home often;

c. Even though the OCL stated that M.N. should spend parenting time with the husband as per her wishes, the husband would not permit that and was abusive toward M.N., forcing her to maintain the parenting schedule the parties had to agreed, which caused fights and distress for M.N.; and

d. The parties were not able to communicate and, as a result, M.N. was forced to communicate for both parents.

[281] The wife’s sister, Narges Ramezani, testified as a witness at the trial. Her evidence confirmed that M.N. had experienced conflict with the husband when he would insist that she come to his residence for her scheduled parenting time and she did not want to do so. I accept Ms. Narges Ramezani’s evidence that M.N. experienced pressure as a result of the shared parenting schedule. It well may be that M.N. did not strictly adhere to the shared parenting schedule 100% of the time in the 27 months from March 1, 2017 to June 1, 2019. However, the wife did not lead evidence identifying what actual time M.N. spent at her home as compared to the husband’s home and how that differentiated from their consent order. Further, the wife did not deny that there was a period of time that M.N. was following the shared parenting schedule. Instead, the wife’s testimony was that the shared parenting schedule resulted in M.N. experiencing stress and feeling forced to spend that much time with the husband. I accept that to be true and that is ultimately what led M.N. to make a decision not to continue with the shared parenting schedule.

[282] Both parties agree that M.N. ceased spending time with the husband as of June 1, 2019. The parties agreed to a final parenting order where M.N.’s parenting time with the husband is subject to her wishes.

[283] I do not agree with the wife’s submission set out in the paragraph above. The parties clearly consented to the shared parenting schedule set out in the order of Goodman, J., dated January 24, 2018. That schedule provided that M.N. spend six out of fourteen overnights with the husband which amounts to over 40% of the time, thereby making s.9 of the CSG applicable. The evidence does not satisfy me that there was a material deviation from the parenting schedule such that s.9 would not apply.

[284] Section 9 of the CSG provides as follows:

Shared parenting time

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[285] I have considered the factors set out in s. 9 of the CSG.

[286] Applying the CSG to the case at bar, and based on my findings about the husband’s and wife’s incomes between the years 2016 to and including 2021, the parties’ respective table child support obligations under the CSG during the period of time from November 1, 2016 to and including October 2021, is illustrated below:

Year

Husband’s Adjusted Income

Wife’s Adjusted Income

Table Child Support owing by the husband

Table Child Support owing by the wife

2016 (2 months)

$43,230

$78,909

$390 a month

2017

$55,511

$96,499

$503 a month

$852 a month

2018

$57,794

$101,864

$535 a month

$925 a month

2019 (shared parenting until June 1, 2019)

$85,289

$106,951

$795 a month

$965 a month

2020

$83,099

$120,460

$775 a month

2021

$74,100

$110,000

$692 a month

[287] Using a strict “set-off” of the parties’ respective table child support obligations under the CSG, I calculate that for the 27 months when M.N. was residing with the parents pursuant to a shared parenting arrangement, the husband should have paid the wife child support in the sum of $13,595, calculated as follows:

Year

Parties’ incomes for child support purposes

Child Support pursuant to the CSG

Total in each year

Running Balance (minus reference means W owes H)

2016 Nov. and Dec.

$43,230 – H $78,909– W

$390 a month payable by H

$780

$780 H owes to W

2017 Jan and Feb

$55,511-H $96,499-W

$503 a month payable by H

$1,006

$1,786 H owes to W

2017 March to Dec.

Same as above

($349 a month) Set-off payable by W ($852)

• $3,490

-$1,704 W owes to H

2018 Jan to Dec

$57,794-H $101,864-W

(-$390 a month) Set-off payable by W

• $4,680

-$6,384 W owes to H

2019 Jan to May

$85,289-H $106,951-W

(-$170 a month) Set-off payable by W

• $850

-$7,234 W owes to H

2019 June to Dec

Same as above

$795

$5,565

-$1,669 W owes to H

2020 Jan to Dec

$83,099-H $120,460-W

$775

$9,300

$7,631 H owes to W

2021 Jan to Oct

$74,100-H $110,000-W

$692

$6,920

$14,551 H owes to W

[288] I have also considered the increased costs of shared parenting time arrangements. Neither party directed his or her attention to any details respecting the specific costs he or she incurred as a result of the shared parenting time arrangements that were in place. Undoubtedly, each parent’s expenses were greater when M.N. was in their care than if she had not been in their care for at least 50% of the time. I have also considered the conditions, means, needs and other circumstances of each spouse and of M.N. During the 27 months that the shared parenting arrangements were in place, the wife’s income was significantly greater than the husband’s. While the wife’s housing costs were substantially greater than the husband’s housing costs during this period, as a result of the order I have made above relating to the sharing of the matrimonial home expenses post separation date and prior to its sale, the wife was in a significantly better position to support herself and M.N. than was the husband. Child support for the 27 month period should be paid on a set-off basis.

[289] Therefore, given that the husband paid the wife the total sum of $20,482 in child support from November 2016 to October 2021, the wife owes him child support in the sum of $5,931 to reimburse him for having overpaid the child support to her ($20,482 - $14,551). The wife can satisfy this reimbursement out of her share of the net proceeds of sale from the matrimonial home sale.

Section 7 Expenses

[290] The wife seeks an order that the parties contribute proportionately to M.N.’s retroactive s.7 expenses and her prospective s.7 expenses.

Analysis

[291] Section 7 of the CSG gives the court discretion to require a payor spouse to cover all or any portion of certain expenses, “taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”. The expenses contemplated by s. 7 can be loosely described as:

a) Child care expenses;

b) That portion of the medical and dental insurance premiums attributable to the child;

c) Uninsured medical and dental expenses including the cost of therapy;

d) Extraordinary expense for primary or secondary school education or other educational programs;

e) Expenses for post-secondary education; and

f) Extraordinary expenses for extracurricular activities.

[292] The CSG presumptively require the parents to share s. 7 expenses in proportion to their incomes, determined under Schedule III to the CSG.

[293] Neither party has challenged which expenses related to M.N.’s activities are s.7 expenses. The issue is only which party owes the other monies on account of M.N.’s s.7 expenses.

[294] The wife submits that for the period November 1, 2016 to October 1, 2021, M.N.’s total s.7 expenses were $15,813.87. The wife contributed $9,932.48 toward these expenses and the husband contributed $5,481.39 toward these expenses. The parties agree that all of the expenses incurred for M.N. were legitimate s.7 expenses. The issue is whether there needs to be a retroactive adjustment from one party to the other, based on my findings of their respective incomes during this time period.

[295] The calculation of each party’s proportionate responsibility for M.N.’s retroactive s.7 expenses is listed below, taking into account the adjusted income calculations as follows:

2016

2017

2018

2019

2020

2021

Total

Wife Adjusted income incl. rental

$74,248 $78,909

$81,880 $96,499

$89,027 $101,864

$104,126 $106,951

$120,460

$122,433.66 Based on W’s sworn FS, dated Aug. 18, 2021

$627,116.66 (61%)

Husband

$43,230

$55,511

$57,794

$85,289

$83,099

$74,100

$399,023 (39%)

Combined incomes

$1,026,139.66

[296] Accordingly, the husband’s proportionate responsibility toward M.N.’s s.7 expenses was 39% of $15,813.87, amounting to $6,167.41 and the wife’s proportionate responsibility was 61% of $15,813.87, amounting to $9,646.46. The wife paid $9,932.48 and the husband paid $5,481.39.

[297] I find, therefore, that the husband owes the wife the sum of $686.02 (calculated as $6,167.41-$5,481.39) on account of M.N.’s retroactive s.7 expenses.

Prospective Child Support

[298] Going forward, the husband’s evidence is that his 2021 income is $74,100. Until M.N. commences university, the husband shall pay the wife child support for M.N. in the sum of $692 a month, which is the Table amount of child support for one child based on his income. Once M.N. makes a decision as to what university she will be attending, the child support quantum will have to be recalculated to consider the fact that she is over the age of majority and may attend school away from home.

[299] Pursuant to s.3(2) of the CSG, where a child is over the age of majority the court can determine the appropriate amount of child support by having regard to the condition, means, needs and other circumstances of the child and the financial ability of the spouse to contribute to the support of the child. In addition, s.7(1)(e) of the CSG provides that the parties may be required to pay an additional amount to cover all or any portion of M.N.’s expenses for post-secondary education, taking into account the necessity of the expense in relation to M.N.’s best interests and the reasonableness of the expense in relation to the means of the spouse and those of the child and the family’s spending pattern prior to separation: s.7(1) of the CSG.

[300] Accordingly, the parties shall exchange income information on May 1, 2022, once M.N. decides what university she will be attending commencing September 2022, along with the information regarding the cost of M.N.’s post-secondary tuition, books, residence (if applicable) and consider any grants, scholarships or student loans that M.N. can obtain and determine what each parent’s contribution toward M.N.’s post-secondary expenses will be and what the monthly sum of child support will be, which will depend on whether she attends university in Toronto and remains living primarily with the wife, or whether she is away from both parent’s homes for the months of September to, and including, April.

Prospective Section 7 Expenses

[301] The wife seeks an order that the husband contribute proportionately to the following s.7 expenses on an ongoing basis:

a. Braces/orthodontic expenses – the uninsured portion estimated at $8,000;

b. Piano lessons in the sum of $1,560;

c. Piano theory lessons and the cost of exams in the sum of $500 per year; and

d. Post-secondary educational expenses;

Husband’s Position

[302] The husband is prepared to pay his proportionate share of M.N.’s s ongoing s. 7 expenses until the end of her 18th year, but after that he submits his responsibility to pay for M.N.’s s.7 expenses is dependent on whether he and M.N. have an ongoing relationship.

[303] The wife’s position is that the husband is obliged to continue to pay his proportionate share of M.N.’s ongoing s.7 expenses until she is no longer a child of the marriage, as defined in s.2(1) of the Divorce Act.

Analysis

[304] Until M.N. makes a decision about post-secondary education, the parties are to contribute toward M.N.’s s.7 expenses on the basis of the wife paying 61% and the husband paying 39% of same. The wife shall advise the husband of any and all s.7 expenses being incurred by her on M.N.’s behalf in advance of incurring the expense(s) if she will be seeking contribution from the husband, and the husband shall not unreasonably withhold his consent to any reasonable and legitimate s.7 expenses for M.N. These expenses shall include the cost of any music lessons and the uninsured portion of the orthodontics for M.N.

[305] The husband did not put forward any case law to support his closing written submissions that he ought not to be required to contribute toward M.N.’s s.7 expenses if he does not have a relationship with her once she begins post-secondary school.

[306] Section 15.1 of the Divorce Act imposes an obligation on spouses to pay support for children of the marriage. A child of the marriage is defined at s. 2 of the Divorce Act to mean (a) a child who is under the age of majority and who has not withdrawn from the spouses’ or former spouses’ charge or (b) a child who is the age of majority or over but unable, by reason of illness, disability or other cause, to withdraw from the spouses’ or former spouses’ charge or to obtain the necessaries of life.

[307] These sections do not include language that would indicate that a child’s rejection of a parent is a factor that may or may not be considered when determining whether child support should be ordered for an adult child. I note as well that the FLA, although not applicable in this case, also does not contains any such language.

[308] Many court decisions, relying on Farden v. Farden, 1993 CanLII 2570 (BC SC), [1993] B.C.J. No. 1315 (S.C.), consider a number of factors when deciding whether an adult child’s attendance at school is sufficient for that adult child still to be a child of the marriage, including whether the adult child has unilaterally and without justification terminated his or her relationship with a parent. These factors are not exhaustive and include all relevant circumstances, including the factors described in Beach v. Tolstoy, 2015 ONSC 7248, at para. 35.

[309] Applying the Farden factors and those outlined in Beach v. Tolstoy, I note:

a. M.N. intends to be enrolled in full-time post-secondary studies commencing September 2022;

b. M.N. is in the process of applying for student loans, scholarships and bursaries. She is an excellent student and expects to be in receipt of a number of loans and/or scholarships for next year;

c. Both parents are highly educated and the wife is extremely interested in ensuring that M.N. takes advantage of every opportunity she has in terms of post-secondary studies;

d. M.N. will have limited ability to contribute to her own support while going to school, and she will likely be registered in a relatively demanding program.

e. M.N. is 18 and in her final year of High School.

f. M.N. is exceptionally bright and succeeded well in high school.

g. There is no reason to doubt that M.N. will succeed at university in her chosen field of studies. Although M.N. is committed to her studies, it is still too early to assess any long term educational plan for M.N.

h. M.N. decided when she was about 16 that she would no longer have a relationship with her father. Her father has unsuccessfully tried to have a relationship with her. However, the history of this situation is complex and if any blame is to be allocated, it should be shouldered by both parents likely in varying degrees over time. In years past the wife provided to the husband little information about M.N. The husband does not seem to accept any responsibility for the rupture in his relationship with M.N. It appears that M.N. had reasons to limit her contact with the husband based on the conflict between them but it is up to the husband to accept the role he has played in the breakdown of the relationship with M.N. and to stop blaming the wife for this. It appears, at this time, that M.N. is simply not yet ready to reunite with her father.

i. As can be seen from the above factors, one of the Farden factors—termination of the relationship between the child and parent—favours the husband’s position. However, most court decisions have held that an adult child terminating his or her relationship with a parent, standing alone, is rarely sufficient (unless this is clearly unilateral and without any apparent reason). In this case there is a long and complicated history and, as a result, the reasons for M.N.’s decision are many and complex.

j. When I consider the evidence relating to the long and complicated history between the parties, it does not appear that M.N.’s decision was reached without justification or without any apparent reason. The parties separated in 2016, when M.N. was only 12 years old. The parties’ actions since their separation, as well as the facts relating to the many unresolved allegations made by each of the parties, have no doubt played a significant part in the current situation. As such, this case is an unfortunate illustration of how badly parents can behave and how this can impact their children. It is obvious from the evidence that both parties and M.N. have been hurt by the actions of the parties, and this is particularly evident in the exchange of text messages between the husband and M.N. in and around June 2019.

[310] In my view, there is still an opportunity for the husband and M.N. to repair their relationship. Once these Reasons are received by the parties and the litigation has ended, it will likely be possible for M.N. and the husband to try and repair their relationship. It is not M.N.’s fault that she has been caught in a loyalty bind between the parties. M.N. has done her best, in the circumstances, to preserve herself and continue to focus on her studies which should be commended. The husband will have to acknowledge the role he played in the breakdown of his relationship with M.N. and accept responsibility for this. However, even if their relationship remains strained, I find that the husband’s prospective obligation to contribute proportionately to M.N.’s legitimate s.7 expenses ought to continue.

Security for Support

[311] The wife seeks an order that as security for the husband’s child support obligations that may be outstanding as at the date of his death, for as long as the husband has an obligation to pay child support for M.N., he shall obtain and maintain a valid life insurance policy in the amount of $500,000 and keep such policy in force; not borrow against the policy and ensure that the policy remains unencumbered; irrevocably designate and maintain the wife as the beneficiary of the proceeds of the policy; and annually on June 1st in each year provide proof that the insurance policy is in force.

[312] Although the wife sought this order, she made no oral submissions about this at trial. Neither party raised security for child support as an issue at Trial.

[313] The husband is 57 years of age. Given his age and health issues, to which I have referred in dealing with the husband’s damages claim below, an order that the husband secure his child support obligation by maintaining a life insurance policy with a face value of $500,000, or in a sum sufficient to fund his child support obligation, would not be appropriate, especially, given that the husband’s sworn financial statement indicates that he does not have any term, universal or whole-life life insurance policies in his name.

[314] From the outset of separation, and since the order of Frank, J. dated January 30, 2017, the husband had paid child support (except for 8 payments). I have no reason to believe that the husband would take steps to defeat a claim for child support made against his estate, were he to be unable to obtain a life insurance policy for the purpose of securing his child support obligation at all or at reasonable cost.

[315] Accordingly, I have made orders that the husband take various steps with respect to obtaining security for his obligation to pay child support, subject to his insurability.

Spousal Support

[316] The husband seeks an order for spousal support from the wife on the following bases:

a. He supported the wife financially from the time they were married on January 21, 2001, even when the wife was living in Iran;

b. When the wife immigrated to Canada in 2003, the husband fully supported her financially until 2009 when she was unemployed and her income, at most, during these 7 years was $4,212.14.

c. He paid off the wife’s university education loans in Iran;

d. He paid for the wife’s courses taken in Canada, which enabled her to become employed.

e. He paid all costs associated with her sponsorship application and immigration status until she became a landed immigrant;

f. He paid 100% of all of the household expenses, without contribution from the wife, until 2010;

g. As the wife is a computer programmer and earning in excess of $100,000 at Torys LLP, and earns more than the husband, given the disparity in their incomes, he is entitled to be supported by her;

h. On his income level, he is in need of support; and

i. Prior to the separation, the husband’s standard of living was based on the combined incomes of the parties.

[317] The wife’s evidence-in-chief confirms that she was financially dependent on the husband between March 4, 2003 when she arrived in Canada and before she became employed in 2007. The wife deposed in her affidavit, sworn on September 8, 2021, that following the birth of M.N. in 2004, she enrolled in a Developing Web Applications program at the University of Toronto, which required her to attend a three-hour class in the evening, once per week. According to the wife, she completed the course by correspondence and self-study while she also cared for the child. Once the wife obtained employment, the wife enrolled in a Developing Web Services Program at Ryerson University and attended classes on Saturdays, three hours a week.

[318] The wife disputes that she had any educational debt or loans from her studies in Iran or that the husband paid off such loans. She deposes that she obtained her Bachelors and Masters Degree in Electrical and Telecommunications Engineering from Isfahan University of Technology in Iran. Her program was fully subsidized by the government and, as a result, the wife’s evidence is that there was no tuition cost or incidental fees associated with her enrollment in these programs. Further, the wife deposes that she resided with her family in Isfahan while she attended university and as such, she had no additional housing or food costs.

[319] Spousal support in this case is governed by the provisions of the Divorce Act. Section 15.2 of the Divorce Act provides:

Spousal support order

15.2 (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.

[320] The seminal cases in Canada on spousal support are Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R., 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. Although both were decided in the 1990s, the principles they enunciate have continued to resonate in the case law since then. First, in Moge, the court noted, at pp. 848-849, “the 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.”

[321] Bracklow requires the court to consider all the factors and objectives set out in the Divorce Act. The Court said, however, that no single objective is paramount. All must be borne in mind since “[t]he objectives reflect the diverse dynamics of the many unique marital relationships”: at para. 35. The uniqueness of marital relationships means that each case will be fact-driven to a large degree.

[322] Since Moge and Bracklow were decided, the Spousal Support Advisory Guidelines (SSAGs), although not law, have often been relied on by judges in determining the quantum and duration of a spousal support order, once a party has established his/her entitlement to spousal support. Unlike the Divorce Act, the SSAGs are not statutory authority. They are guidelines designed to advise on a reasonable range of spousal support and a reasonable duration for spousal support in various circumstances. While the SSAGs are advisory only, courts are required to consider them where they have been addressed by the parties: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.

[323] The following is a quote taken from Moge, at p. 870:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. 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 (see Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 174-75).

[324] I find that the husband is entitled to spousal support and was entitled to spousal support from November 1, 2016 onward, for a total of 7 ½ years in accordance with the SSAGs, using the mid-range of spousal support.

[325] Where the parties’ evidence regarding the contributions the husband made toward the wife’s income earning potential are in conflict, I prefer the husband’s evidence as I have stated above in these Reasons. I found the husband’s evidence overall to have been given honestly, although at times without any insight into his own actions. In addition to his contribution to the wife’s income earning potential, upon separation, the husband was in need of support. The husband could not have reasonable enjoyed a standard of living that was commensurate with the standard of living that the parties shared while they cohabited.

[326] Prior to separation, the parties and M.N. lived in a household with a combined income of $117,578 (in 2016, the wife earned $74,348 a year and the husband earned $43,230). Now the husband lives in a household with an income of $74,100, however, M.N. does not live with him. The wife now has an income that exceeds the combined income of the parties at the time of separation. She also resides with a new partner, as set out in her financial statement, who earns in excess of $50,000 a year, which would reduce her housing costs. In my view, the drop in income for the husband is about 36.8% from the combined income of the parties and the drop itself indicates some need. It is to be noted that in the years following the separation, namely, from 2016 through 2018, the parties’ incomes were particularly disparate.

[327] The husband seeks spousal support in the sum of $700 to $800 a month for 7 years and 8 months, which is the minimum duration suggested by the SSAGs.

[328] Applying the mid-range of spousal support found in the SSAGs for the period November 1, 2016 to and including October 1, 2021, using both the “custodial payor” formula and the “with child formula”, for the period of time M.N. resided with the parents pursuant to a shared parenting schedule, the following gross and net amounts of spousal support should have been paid by the wife to the husband:

a. In 2016, the wife’s adjusted income was $78,909, comprised of her T4 salary from Torys LLP and the grossed up rental income, and the husband’s income was $43,230. The mid-range of the SSAGs set out that the wife would be obliged to pay the husband spousal support in the sum of $646 a month for a duration to 7 ½ to 15 years from the date of separation. Spousal support of $646 a month would have cost the wife $442 a month, after she deducted the spousal support and would have netted the husband $477 a month, after he included the spousal support in the calculation of his after tax income, for an average after-tax cost/benefit of $444.50 a month, for November and December 2016, totalling $889.

b. In 2017, the “with child support” formula (given that M.N. had a shared parenting arrangement) and with the wife’s adjusted income of $96,499, comprised of her T4 salary from Torys LLP and the grossed up rental income, and the husband’s income of $55,511, the mid-range of the SSAGs set out that the wife would be obliged to pay the husband spousal support in the sum of $346 a month for a duration to 7 ½ to 15 years from the date of separation. Spousal support of $346 a month would have cost the wife $224 a month, after she deducted the spousal support and would have netted the husband $244 a month, after he included the spousal support in the calculation of his after tax income, for an average after-tax cost/benefit of $244 a month, for 12 months, totalling $2,928.

c. In 2018, the “with child support” formula (given that M.N. had a shared parenting arrangement) and with the wife’s adjusted income was $101,864, comprised of her T4 salary from Torys LLP and the grossed up rental income, and the husband’s income of $57,794, the mid-range of the SSAGs set out that the wife would be obliged to pay the husband spousal support in the sum of $403 a month for a duration to 7 ½ to 15 years from the date of separation. Spousal support of $403 a month would have cost the wife $276 a month, after she deducted the spousal support and would have netted the husband $284 a month, after he included the spousal support in the calculation of his after tax income, for an average after-tax cost/benefit of $280 a month, for 12 months, totalling $3,360.

d. In 2019, the “with child support” formula is applied from January to May inclusive (when M.N. lived with the parents pursuant to a shared parenting arrangement), with the wife’s adjusted income of $106,952, comprised of her T4 salary from Torys LLP and the grossed up rental income, and the husband’s income was $85,289, the mid-range of the SSAGs set out that the wife would be obliged to pay the husband nil spousal support for the months that M.N. lived with the parties pursuant to a shared parenting schedule. However, starting July 2, 2019, M.N. ceased having parenting time with the husband. The “custodial payor” formula becomes applicable at that point in time. Using the same incomes for both parties, the mid-range of the SSAGs set out that the wife would be obliged to pay the husband spousal support in the sum of $346 a month for a duration to 7 ½ to 15 years from the date of separation. Spousal support of $196 a month would have cost the wife $237 a month, after she deducted the spousal support and would have netted the husband $477 a month, after he included the spousal support in the calculation of his after tax income, for an average after-tax cost/benefit of $216.50 a month, for 6 months, from July 1, 2019 to and including December 1, 2019, totalling $1,299.

e. In 2020, the wife’s total income was $120,460, comprised of her T4 salary from Torys LLP and her net real estate commission income, and the husband’s income was $83,099. The “custodial payor formula” of the SSAGs provide that the mid-range of spousal support the wife would be obliged to pay the husband was $624 a month for a duration to 7 ½ to 15 years from the date of separation. Spousal support of $624 a month would have cost the wife $353 a month, after she deducted the spousal support and would have netted the husband $428 a month, after he included the spousal support in the calculation of his after tax income, for an average after-tax cost/benefit of $390.50 a month, for 12 months totalling $4,686.

f. In 2021, the wife’s estimated income is $110,000, comprised only of her T4 salary from Torys LLP, and the husband’s estimated income is $74,100. The mid-range of the SSAGs set out that the wife would be obliged to pay the husband spousal support in the sum of $567 a month for a duration to 7 ½ to 15 years from the date of separation. Spousal support of $567 a month would cost the wife $332 a month, after she deducts the spousal support and would net the husband $413 a month, after he included the spousal support in the calculation of his after tax income, for an average after-tax cost/benefit of $372.50 a month, for ten months totalling $3,725.

[329] Accordingly, if the wife had paid spousal support to the husband in the mid-range of the SSAGs from November 1, 2016 (the first month the husband was not in the matrimonial home) to and including October 1, 2021, the average net cost/benefit to the husband would have totalled $16,887. The wife shall pay the husband retroactive spousal support in the net sum of $16,887 for 60 months, with adds up to 5 years in total.

[330] Were I to order the wife to pay the husband monthly spousal support for the balance of the 2 ½ year period, then I would have ordered her to pay him $567 a month for that period, after which her obligation to pay spousal support to him would terminate. However, I have decided to order that the wife pay the husband a lump sum on account the balance of spousal support owing to him instead. As set out above, in para. [328 (f.)], the average after-tax cost/benefit of the wife paying $600 a month spousal support to the husband, based on her income of $110,000 (which does not include a component for real estate commission) and on the husband’s income of $74,100, amounts to $372.50 a month, for 30 months (2 ½ year) totals $11,175. In total, therefore, the wife is ordered to pay the husband lump sum spousal support to the husband in the sum of $28,062, which represents the after-tax amount of what the husband would have netted had the wife paid him gross spousal support over a 7 ½ year period.

[331] The lump sum that I have determined above assumes that no material change in circumstances will occur during the next 2 ½ year period, which would entitle the wife to a decrease in spousal support or the husband to an increase in spousal support, such as either party losing his/her job. While there is always a possibility that a material change of circumstances might occur in the 2 ½ year period remaining in the spousal support term, which could give rise to a right to a change in the amount of spousal support to be paid, it is not reasonably possible to conclude whether such a risk would justify an increase in the lump sum or a decrease. Further, these possibilities are not sufficient to militate against a lump sum spousal support payment. Again, given the high conflict nature of this case; the length of time that the parties have been litigating and the relatively short duration of spousal support left to be paid, this is an appropriate case for a lump sum award. But for child support, this judgment will effectively create a clean break between the parties. Thus, in my view, a lump sum spousal support award assists the parties to effect as much as possible a clean break; see, Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221.

Damages Claim for Malicious Prosecution

[332] The husband submits he can demonstrate that the wife committed the tort of malicious prosecution and, as such, he is seeking general damages in the sum of $100,000 from the wife and special/punitive damages from the wife in the sum of $100,000.

[333] The husband submits that the wife knowingly made false allegations of sexual assault against him and reported this to the police; she then recanted her statement that the husband was aware that she did not consent to their having sexual contact on October 16, 2016, by filing an affidavit in which she deposes that she believes the husband thought their sexual contact was consensual; the sexual assault charges were, as a result, withdrawn; and the wife made this false report to the police in an effort to gain exclusive possession of the matrimonial home and to gain an advantage in the family law proceedings.

Circumstances surrounding the Criminal Charges

[334] The wife testified to her version of events that transpired on October 16, 2016, which led to the husband being charged with two counts of sexual assault against her, as follows:

a. M.N. was taken to Persian school by the husband at around 9:00 a.m.;

b. When the husband returned to the matrimonial home, the wife asked him to assist her in bringing a mattress that was in the basement upstairs to the guest room where she had been sleeping on the floor;

c. The husband made sexual advances toward her which she clearly resisted and told him she was not interested. The husband then went to have a shower;

d. She admitted in cross-examination that when he was in the shower, she could have left the house and gone to her parents home which was nearby. She chose not to do so;

e. She testified that after the husband’s shower, he came into the living room naked and wanted to have sex with her. She submits that she pushed the husband back and held her pyjamas and told him over and over that she did not want any sexual contact with him. She testified that it was very clear that she did not want any sexual contact;

f. She testified that the first time he “raped “her was in the living room;

g. After the “rape”, the wife then went into M.N.’s room to lie down and do work and the husband came into M.N.’s room and sexually assaulted her again;

h. It is noteworthy that during her evidence-in-chief, the wife described the incidents as “rape” and when asked why in cross-examination, the wife admitted that she used the word “rape” because “[she] did not want him to touch [her]”. She clarified that there was no intercourse or penetration that took place;

i. The wife was not able to describe how much time had passed between the first two incidents but said it was about 5-10 minutes;

j. She testified that she went to her parent’s home for about an hour after the alleged assaults. She testified that she was confused and trying to clear her mind and then returned to the matrimonial home;

k. The wife returned to the matrimonial home and asked the husband to pick up M.N. from Persian school;

l. The wife described that her neck hurt because she was pulling away from the husband to get away from him when she was in M.N.’s bedroom;

m. The wife admitted that it was typical in their relationship for her to be submissive, initially say no to sexual contact and then give consent non-verbally;

n. She testified that she and the husband did not talk once M.N. came home from Persian school;

o. The day after the incident, the wife went to report the incidents to the police, at 22 Division during her work day;

p. She testified that she did not know that the husband would be arrested when she reported the incidents to the police; and

q. She acknowledged that she was very clear with the husband that she did not want to have sexual contact with him and that she had a sore neck from pushing him away and fighting him off.

[335] During cross-examination, the wife asserted that when she talked to the police on October 17, 2016, she told them that she made it clear to the husband that they were separated and that was one of the reasons why she did not want to have sex. She also asserted that she told the police on October 17, 2016 that she was very clear that she did not want to have sex with the husband and she had told him “again and again and again” that she was not interested in being intimate.

[336] As reviewed above, the wife swore an affidavit on February 15, 2017, in which she recants her earlier allegations that there was no reasonable possibility that the husband could have thought she consented to have sexual contact with him on October 16, 2016. In this affidavit, the wife deposed that she believes the husband believed the sexual acts in which they engaged on October 16, 2016 were consensual As a result of the wife’s affidavit, the criminal charges against the husband were withdrawn against the husband on June 28, 2017.[36]

[337] During cross-examination, the wife was asked if her affidavit, sworn on February 15, 2017 was false. The wife denied that it was. In answer to the question as to why she wrote in her affidavit that the husband would have thought the sexual acts were consensual her answer was “I was giving him the benefit of the doubt”.

[338] The husband’s version of events is entirely divergent from the wife’s. He testified that for the first time in months, on October 16, 2016, the wife approached him and wanted to have sexual relations with him. As a result, the husband went to have a shower. He testified that the wife agreed to give him oral sex if he agreed to show her his lawyer’s response to her Application. The wife then went into M.N.’s room and he came into the room and began massaging her neck and shoulders when further sexual contact occurred. It is the husband’s position that the wife consented to all sexual contact that occurred between them on October 16, 2016. In cross-examination, the wife admitted that the husband came into M.N.’s room and started to give her a massage.

[339] The wife told the police that she and the husband did not talk after the assault. However, the husband’s evidence is that they did talk that entire evening. The husband called M.N. as a witness at this trial to elicit evidence from her that only she had been able to observe. The OCL brought a pre-trial motion seeking an order that M.N. not be required to testify at the trial. I made an order that M.N.’s evidence was relevant and necessary and I limited the scope of the question(s) to be asked. Accordingly, the husband was permitted to ask M.N. a question in a limited fashion about her recollection on the day of the alleged assault. M.N.’s evidence was that she remembers her parents talking or arguing that evening.

[340] During the video statement to the police, the wife deposed that she pushed the husband away.

[341] According to the husband, the statements made by the wife to the police were falsely made by her, on the following bases:

a. While the wife describes on 8 separate occasions during her video statement that she had to push the husband away from her, she fails to describe the husband’s actions toward her that caused her to push him away this many times;

b. The wife claims to have put the events of October 16, 2016, out of her mind, explaining that she was “foggy” until the next day at work at 11:30 a.m. when she decided to report it to the police;

c. The wife claims to have hidden and thrown out her pyjama pants that she deposes the husband ripped off her;

d. In her video statement, the wife deposes that this was the first time the husband sexually assaulted her and later she tells the police that the husband sexually assaulted her many times over many years;

e. In her video statement, the wife deposes that she and the husband had no conversations after the sexual assaults, but during the trial the wife admitted that she and the husband did speak that evening. Further, this was corroborated by M.N. who testified that she recalls her parents speaking or arguing that evening;

f. In her video statement, the wife deposes that she suffered no injury as a result of the sexual assaults other than her neck hurting her from her pulling away from the husband. However, she describes three on-consensual separate incidents of sexual assault by the husband toward her on October 16, 2021 yet, somehow she sustained no injuries;

g. In her video statement, the wife deposes that she told the husband immediately that she did not wish to have sex with him. Later in the statement, she deposes that she offered to perform oral sex on the husband in exchange for looking at his response to her divorce application. Her specific words were “send your file to me and then we will see”, referencing that she will consider having sexual relations with the husband once he sends his divorce response file to her;

h. In the video statement the wife deposes that she went to her parent’s home in the afternoon and when she returned the parties did not speak or have any discussions. This is completely contrary to M.N.’s testimony that she recalls the parties talking or arguing after she came home from Persian school; and

i. In the wife’s affidavit, sworn on February 15, 2017, the wife deposed that she believes the husband believed that the sexual relations between them on October 16, 2016 were on consent. This is a complete recantation of her earlier statement to the police that she was sexually assaulted and she had been very clear to the husband that she did not want him to touch her sexually or otherwise.

[342] The husband maintains that the wife made these reports to the police with malice because she had already initiated a family law proceeding, in which she sought exclusive possession of the matrimonial home and a restraining order. When this incident happened, the parties had been living separate and apart in the matrimonial home for 3 ½ months but the wife had, only relatively recently started this application. It is the husband’s belief that the wife was intent on gaining exclusive possession of the matrimonial home but could not meet the test under the FLA and accordingly, he believes that she knew if she made the sexual assault allegations against the husband, he would be removed from the matrimonial home and that would not only give her exclusive possession of the home, but would also give her an advantage in terms of her parenting and child support claims.

[343] The criminal charges were not withdrawn against the husband until June 28, 2017. Five months prior to that, the husband deposed in his evidence-in-chief affidavits and testified that he experienced tremendous stress that resulted in him have a stroke episode on January 31, 2018. As evidence of this stress, the husband tendered a letter from Dr. Blouos at Sunnybrook Health Sciences Centre, dated May 17, 2018 as Exhibit #85 at trial, which confirms that the husband was seen in the neurology clinic for a follow up from a “transient episode of Horizontal Diplopia which lasted several hours on January 31, 2018” which involved the husband developing an acute onset binocular horizontal diplopia (double-vision) while looking at a computer on January 31, 2018, which lasted for 6-7 hours. The husband attributes this episode to the stress he was experiencing as a result of the criminal charges.

[344] To defend the criminal charges, the husband retained criminal defence counsel at Danson Recht LLP. Although the husband could not obtain all of the payments he made toward his criminal defence fees, he testified that he paid $2,076.93 to Danson Recht LLP and was able to produce cheques paid to them to verify this amount.[37]

[345] The husband was required to live in what, he deposes were, deplorable conditions in the basement of his surety’s home for four months after he was criminally charged on October 17, 2016. He was not able to obtain a variation in his bail conditions until February 2017, to live on his own to exercise parenting time with M.N. Further, as a result of the criminal charges, the husband lost four months to have parenting time with M.N. from October 17, 2016 until February 2017. At the time of separation, M.N. was only 12 years old.

[346] After the criminal charges were withdrawn against the husband, he took steps to communicate with Toronto Police Service asking for anything related to the criminal charges, including his fingerprints, photographs and records of disposition held by them and/or the RCMP to be destroyed. Toward that end, the husband wrote to Toronto Police Services (“TPS”) on July 20, 2018. A Decision was made by TPS not to destroy his fingerprints, photographs and records of disposition. As a result, the husband appealed this decision on September 17, 2018. On November 18, 2018, TPS wrote to the husband advising that in consideration of his appeal, it had undertaken a review of the decision and decide to make a recommendation to the R.C.M.P. for the destruction of fingerprints, photographs and records of disposition relevant to his charges. He was told that it could take up to 12 months from the date of the letter for the R.C.M.P. to consider the recommendation from TPS.[38] Three months later, on February 18, 2019, the husband received a letter from TPS confirming that his records related to the criminal charges in October 2016, with them had been destroyed.[39]

[347] According to the husband, his employment position at Vincent & Associates was terminated, effective June 5, 2019. The husband testified that the reason his position was terminated was because he was not able to obtain a clear police-check as a result of the false sexual assault allegations which led to him being charged in October 2016. The husband’s testimony was that his employer let him know in December 2018 that they would need to let him go because they were not able to get a police clearance check. However, his employer was sensitive to his circumstances and, according to the husband, they gave him a few months to try and find a job. As a result, his termination was not effective until June 5, 2019. There was no evidence from Vincent & Associates that clarified whether that was the reason the husband’s position was terminated. However, there is no reason to doubt the husband’s evidence in this regard especially since in December 2018, TPS had still not destroyed his records and that was not accomplished until February 2019. The husband was then out of work for a period of four months. He is now working for at Candu Energy Inc. as an IT Programming Specialist.

[348] In summary, the husband seeks general damages of $100,000 on account of malicious prosecution arising from the wife’s false sexual assault allegations for the following reasons:

a. He lost his liberty for two days and two nights;

b. He lost his relationship with his daughter as she believes he assaulted the wife;

c. He lost his reputation amongst their friends and community;

d. He was under a tremendous amount of stress and pressure;

e. He lived in deplorable conditions in the basement of his surety’s home for 4 months;

f. It took two years for the police to destroy the criminal records and his place of work was not able to provide a clear background check and, as a result, he was let go from his employer in June 2019;

g. At the time he was let go from his employment he was earning $57,000 a year. It took the husband four months to find another job.

h. He suffered a mild stroke and lost his vision as a result of the stress associated with the false criminal charges; and

i. He incurred legal fees to defend the charges.

[349] As a result of his having been charged criminally, the husband was forbidden from residing in the matrimonial home for four months. During this time, he resided in the basement of his surety’s home. He provided no evidence that he paid the surety rent or other amounts due to these circumstances. Therefore, I find that but for the criminal charges, he would have resided in the basement of the matrimonial home for 29 months, namely, from February 1, 2017 to June 30, 2019 (when the house sale closed). The rental value of the basement was approximately $820 a month, based on what the previous tenant had paid. His rent outside the home was $1,560 a month according to his financial statement. Therefore, it is reasonable to conclude that the husband incurred rental costs that exceeded the cost of residing in the basement of the matrimonial home by $760 a month over a 28 month period or $22,040. Whether the house would have been sold earlier had the husband continued to lived in the basement is a matter of pure speculation.

[350] In addition to general damages, the husband seeks special/punitive damages in the sum of $100,000 against the wife for the following reasons:

a. The wife committed a mischief by filing a false complaint against the husband and she was not charged. She should be punished for causing the husband to lose his liberty as a result of the arrest and detention.

b. The wife’s conduct should be deterred because it brought the justice system into disrepute; and

c. The wife’s reporting of the sexual assault caused a delay in the sale of the parties’ matrimonial home. In the husband’s Answer and Claim dated January 2017, he sought an order that the home be listed for sale immediately. The wife would not agree to the sale of the matrimonial home. According to the husband, the fair market value in the matrimonial home decreased from $1,470,000 to $1,200,000.

Analysis

[351] There are four necessary elements to make a case for malicious prosecution, which test is set out in Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at p.193, as follows:

a. The proceedings must have been initiated by the defendant;

b. The proceedings must have terminated in favour of the plaintiff;

c. The absence of reasonable and probable cause; and

d. Malice or a primary purpose other than that of carrying the law into effect.

[352] In the case at bar, the husband claims that the sexual assault proceedings were initiated against him based on knowingly false allegations made by the wife. The same facts were present in the case of Chatha v Uppal, 2018 BCSC 6. In Chatha, the Court looked to the test from Nelles and held that the first element was made out as the proceedings were initiated by the Claimant. Mr. Uppal met the second element as he was acquitted of the charges against him. In assessing the third element, Justice Harvey found that the evidence was lacking in material to show what really took place on the night of the alleged assault. However, Harvey, J. found that on a balance of probabilities, it was not what the Claimant had advanced to the police – that the Respondent threatened to kill her and grabbed a knife. Harvey, J. found that the Claimant did not have reasonable and probable cause to believe the Respondent threatened to kill her. Looking at the final element, Justice Harvey noted, at para. 470:

[A] successful prosecution for malicious prosecution need not entail identifying the underlying motive; simply allowing the court to conclude that the motive giving rise to the initiation of the prosecution, and that there was an absence of reasonable and probable cause for initiating it, is sufficient for the purposes of founding the action if that person’s primary purpose was other than properly carrying the law into effect.”

[353] Applying the Nelles test to the case at bar, the first element is made out as the wife initiated the sexual assault charges by reporting the incident to the police on October 17, 2016. According to Johnson v. Coppaway, 2004 CanLII 9755 (ON SC), [2004] O.J. No. 1453 (S.C.), at para. 120:

A person may “institute proceedings” for the purpose of an action for malicious prosecution by giving information to the police which the person knew or ought to have known was false, misleading or incomplete or was given for reasons of malice. (See: Samuel Manu-Teck Inc. 16 v. Redipack Recycling Corp. (1998), 66 O.T.C. 16 at para. 32 (Gen. Div.)). Any person who makes or who is instrumental in making or prosecuting of a charge is deemed to prosecute it and is called the prosecutor. Failing to give a frank and candid account of events to police, or participating in or interfering with he investigation or prosecution may attract liability. (See: Hinde v. Skibinski (1994), 21 C.C.L.T. (2d) 314 (Ont. Gen. Div.)).

[354] It is well-established that a defendant may be found to have initiated a prosecution even though the defendant did not actually lay the information that commenced the prosecution. Although this court has not determined "all the factors that could, in any particular case, satisfy the element of initiation", it has held that a defendant can be found to have initiated a prosecution where the defendant knowingly withheld exculpatory information from the police that the police could not have been expected to find and did not find and where the plaintiff would not have been charged but for the withholding: see McNeil v. Brewers Retail Inc., 2008 ONCA 405, [2008] O.J. No. 1990, at para. 52. (emphasis added).

[355] The husband meets the second element as the charges were withdrawn against him, because the wife, herself, swore an affidavit on February 15, 2017, essentially recanting her earlier allegations that the husband had sexually assaulted her. Her affidavit clearly states that the wife believes the husband thought she consented to the sexual interactions they had on October 16, 2016 which is the complete opposite of what she told the police during her statement to them on October 17, 2016.

[356] In assessing the third element, the evidence is lacking in my ability to determine exactly what took place on October 16, 2016. However, I do not accept the wife’s version of events because if she were truly sexually assaulted by the husband as she describes, there was nothing stopping her from leaving the matrimonial home after the first incident and she chose not to do so. Furthermore, if she were sexually assaulted by the husband as she initially reported, there would have been no reason for her to swear the affidavit on February 15, 2017 and ask the Crown to consider it. The evidence given about the wife’s demand for the husband to produce a copy of his response to her divorce application in connection with this incident has the ring of truth. Accordingly, I find that the husband has established absence of reasonable and probable cause. Having considered the evidence of the parties in relation to this incident and the overall credibility of the parties at trial, I accept that the incident unfolded in the manner that the husband describes on October 16, 2016. His version of the events that unfolded, including his evidence about the wife’s demand that he show or produce his lawyer’s response to her divorce application, had the ring of truth.

[357] Looking to evidence of malice under the fourth element, I find that the wife took steps to report the incident to the police to gain an advantage in the family law proceedings as she must have known that reporting to the police would result in her gaining exclusive possession of the matrimonial home and make her more likely to succeed in the claims for relief in the action, including with respect to parenting and child support.

[358] Accordingly, I find that the husband established, on a balance of probabilities, the essential elements for the tort of malicious prosecution.

[359] Looking at the issue of damages, I find that the husband suffered in terms of his loss of liberty for two days and two nights; increased stress; an incident involving a disruption in his vision requiring him to seek medical treatment; loss of parenting time with M.N. when he resided with his surety; loss of reputation in his community; and loss of employment. I do not necessarily find, as alleged by the husband, that the wife’s reporting of the sexual assault is what led to the damage in the husband’s relationship with M.N.

[360] In Campbell v. Lauwers, 2013 ONSC 2306, once the elements of the tort of malicious prosecution was established, the court assessed three heads of damages, at para. 29. (see: Savile v Roberts (1698), 1 Raym. 374, at 1149 and Pearson v. Mian, 2006 CarswellOnt 7286):

a. Damages to a person’s “good name, fame, credit and esteem”

b. Damages to the person which include an emotional reaction to the prosecution and the risks attendant thereto; and

c. Damages to property, which generally refers to financial loss due to the mounting of a defence or loss of earnings.

[361] Brown, J. in Campbell, noted, at para.32, that general damages should be assessed based on the particular facts of the case. Looking at the evidence and Mr. Campbell’s testimony, the Court awarded general damages in the amount of $60,000. As for aggravated and punitive damages, Justice Brown noted that it is rare to award aggravated damages in cases of malicious prosecution. For punitive damages, Brown, J. asserted, at para. 37, that:

[T]the Court should consider how the combination of compensatory damages, punitive damages and any other kind of punishment related to the same misconduct contributes to achieving the objectives of retribution, deterrence, and denunciation.

[362] In Campbell, based on the evidence, which showed that Ms. Lauwers was motivated by malice and intended injury, humiliation, and harm to Mr. Campbell’s reputation, and since Ms. Lauwers was not punished, criminally or otherwise, the Court awarded Mr. Campbell both aggravated and punitive damages in the amount of $50,000.

[363] The purpose of an award of aggravated or mental distress damages is different from the purpose for an award of punitive damages. In fixing mental distress damages, the court focuses on compensating the plaintiff for his or her mental distress relating to the manner of dismissal: see Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 60. In fixing punitive damages, the court focuses on punishing the defendant’s wrongful acts “that are so malicious and outrageous that they are deserving of punishment on their own”: Honda, at para. 62; see also Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 196 Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 73. (emphasis added).

[364] In Hill at para. 196, the court stated:

Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high‑handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

[365] As observed in Huff v. Price, (1990), 1990 CanLII 5402 (BC CA), 76 D.L.R. (4th) 138 (B.C.C.A), at. p. 153:

[A]ggravated damages are an award or an augmentation of an award, of compensatory damages for non-pecuniary losses. They are designed to compensate the plaintiff, and they are measured by the plaintiff's suffering ... The damage award is for aggravation of the injury by the defendant's high-handed conduct.

[366] In Campell, at para. 37, Brown, J. stated as follows:

With respect to punitive damages, the Court should consider how the combination of compensatory damages, punitive damages and any other kind of punishment related to the same misconduct contributes to achieving the objectives of retribution, deterrence, and denunciation. Where a defendant has already been punished, either criminally or through professional disciplinary process, punitive damages are generally not awarded, because this would amount to double punishment.: See John Doe v. O'Dell, 2003 CanLII 64220 (ON SC), [2003] O.J. No. 3546 (Ont. S.C.J.) at paragraph 352. (italics added)

[367] With respect to general damages, I find that the husband is entitled to be reimbursed for his criminal defence legal fees ($2,076.93 was what he could prove he paid); the accommodation costs he incurred as a result of being removed from the matrimonial home on October 16, 2016 ($22,040); the efforts he had to exert in order to find new employment; the obvious effect of knowledge of the criminal charges would have on his good name and reputation with his family, friends, community and his former employer; the loss of his employment; the loss of parenting time with M.N. until he was able to vary his bail conditions in February 2017 and live alone; the physical and emotional distress he suffered, including the disruption in his vision that resulted in him seeking medical treatment; and in having to take the steps he did in order to have his criminal records destroyed. For all of these reasons, I find that the husband is entitled to general damages in the sum of $40,000.

[368] Having established a case for malicious prosecution, the only reasonable inference that can be made in the circumstances of this case is that the wife alleged to the police that the husband committed sexual assaults against her is that she did so in order to gain an advantage in this case whether to gain sole possession of the matrimonial home or to gain an advantage with respect to parenting.

[369] With respect to special/punitive damages claimed by the husband, I find that given the false claims of sexual assault were made in the context of a bitter separation, the wife used the criminal justice system to gain a civil advantage in the matrimonial system. This is not a case where the wife was punished or had any consequences, in any other way, as a result of her conduct. While it is not common and the Courts generally do not encourage parties to call their children as witnesses in the course of matrimonial litigation, there are instances where it may be necessary to do so. As a result of the false sexual assault allegations made by the wife, the husband was reasonably forced to call M.N. as a witness on the limited issue of whether she recalls her parents speaking on October 16, 2016 after she returned from Persian school. While the issue of M.N. giving testimony was dealt with sensitively, it does not change the fact, that but for the false allegations, she would not have been involved in the trial at all. Making false allegations of criminal activity by one spouse to another should not be countenanced. The goal of punitive damages is not to compensate the husband, as my award of general damages is intended to do, but rather to punish the wife for her actions and to express the Court’s outrage by her conduct. Accordingly, I find that the husband is entitled to punitive damages in the sum of $10,000, meant to both denounce the wife’s conduct and to deter the wife and others from acting in this manner.

Restraining Order

[370] The wife seeks a restraining order against the husband. She fears her safety and deposes that it is necessary.

[371] Pursuant to s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and s. 46 of the FLA, the court may grant a restraining order against a person if the moving party has reasonable grounds to fear for his or her own safety or for the safety of any child in their custody. A restraining order may govern the manner in which parties communicate, as well as how they are to be in contact.

[372] The wife led no evidence whatsoever as to why she is currently afraid of the husband or that she fears for her safety and/or that of M.N. At the time of the sexual assault allegations and ensuing charges, a restraining order was not needed by the wife because the husband’s bail conditions required that he not be within 100 meters of the wife, the child or the matrimonial home. The wife, however, voluntarily filed an affidavit which resulted in the sexual assault charges being withdrawn against the husband. That happening in January 2017. At no time between January 2017 and the date of this trial, did the wife bring a motion seeking a restraining order as a result of her fear for her safety. To now claim that she has this fear in late 2021, based on events that transpired in 2016, which she recanted, on her own volition, is disingenuous in my view. I decline to order a restraining order against the husband.

[373] As set out recently by Desormeau, J., in Daleman v. Daleman, 2021 ONSC 7193, at para. 134 and135:

[135] To obtain a restraining Order, the Mother must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining Order cannot be imposed lightly given the respondent's liberty interest and the potential for imprisonment if the Order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19: See JK v RK, 2021 ONSC 1136, at para 29.

[135] So, while the court must assess the applicant's subjective fear, it must only grant the Order where that fear has a "legitimate basis": Fuda v. Fuda, 2011 ONSC 154, [2011] CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father’s actions or words with the Mother’s fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33: See JK v RK, supra, at para. 30.

[374] During her testimony and affidavit evidence, the wife alleged a history of verbal and sexual abuse by the husband toward her. The husband completely denied any history of abuse. Apart from the reporting to the police of sexual assault on October 16, 2016, and her subsequent recantation of those allegations, the wife provided no evidence which would give rise to her being afraid for her own physical or psychological safety or for that of M.N.

[375] Further, the parties have no need to communicate about M.N., given her age and stage of life. There is already a final parenting order in place which sets out that M.N. is to spend time with the husband according to her wishes only. Once the parties comply with this order in resolving their financial issues, there is no need for them to have any communication directly.

[376] I decline to order a restraining order as requested by the wife.

Summary of Amounts Owing by One spouse to the Other

[377] Again, the net proceeds of sale from the matrimonial home sale are being held in trust by the parties’ real estate lawyers, in the total sum of $573,528.45. Each party’s share is $286,764.22.

[378] In terms of the property issues, I found above in these Reasons that the wife owes the husband an EP in the sum of $171,594.62. Further, the husband owes the wife the sum of $35,511.51 on account of post-V-Day adjustments and the sum of $209,000 on account of his debt to her under the terms of the Mahr.

[379] In terms of child and spousal support, I found above in these Reasons that the wife owes the husband the sum of $5,931 on account of retroactive child support and the sum of $28,062 on account of lump sum spousal support. I also found that the husband owes the wife the sum of $686.02, on account of retroactive s.7 expenses.

[380] Finally, I found that the wife owes the husband general and punitive damages on account of malicious prosecution, in the total sum of $50,000.

[381] Accordingly, pursuant to the terms I have ordered:

a. The wife shall pay the following amounts to husband:

Equalization Payment

$172,885.62 $171,594.62

Retroactive Table Child Support

$5,931

Spousal Support

$28,062

Damages

$50,000

Total

$256,587.62 $255,587.62

b. The husband shall pay the following amounts to the wife:

Post-V-Day adjustments relating to the parties’ NFPs that resulted in the EP of $172,885.62 $171,594.62

$31,511.51

Retroactive s. 7 expenses

$686.02

Total

$32,197.53

c. As a result, on a set-off of the parties’ respective obligations toward one another, the wife would pay the following amount to the husband: $256,587.62 $255,587.62 - $32,197.52 = $224,390.09 $223,390.09.

[382] The parties agree that the husband owes the sum of $209,000 CAD to the wife under the terms of the Mahr (Islamic marriage contract). He agrees to pay that amount to her. After the real estate lawyer (who is holding the balance of the net proceeds of sale from the matrimonial home), deducts any outstanding fees, disbursements and HST that owed by the parties to them, the balance of the fees shall be divided as follows:

a. To the wife, 50% of the balance of the proceeds of sale (plus 50% of any accrued interest on the proceeds that have not been disbursed to date) minus $224,390.09 $223,390.09 plus $209,000; and

b. To the husband, 50% of the balance of the proceeds of sale (plus 50% of any accrued interest on the proceeds that have not been disbursed to date) plus $224,390.09 $223,390.09 minus $209,000.

[383] Thus, subject only to the adjustment, upward or downward, of the $573,528.45 amount being held by the law firm in trust for the parties jointly, which depends only on (i) whether any outstanding fees, disbursements and HST are payable to the law firm, which the law firm is to deduct from the proceeds before disbursing them to the parties under the terms of this order; and (ii) whether any interest has accrued on the proceeds of sale during the time that they have been held by the law firm, which the law firm is to disburse to the parties equally, (if it has not yet been disbursed), the law firm will disburse the net proceeds of sale as follows:

a. The sum of $271,474.13 $262,374.13 will be paid to the wife (that is, $286,764.22 minus $224,290.09 $223,390.09 plus $209,000) and the sum of $302,054.31 $301,154.31 will be paid to the husband (that is, $286,764.22 plus $224,290.09 $223,390.09 minus $209,000).

[384] For clarity, upon receipt of the funds payable, the wife will have received payment of the Mahr, as it seen in the above calculation.

ORDER

[385] Based on all of the above, this Court makes the following order:

Equalization Payment

a. The wife shall pay an equalization payment to the husband, in the amount of $172,885.36 $171,594.62.

Post-V-Day Adjustments

b. The husband shall pay to the wife the amount of $31,511.51 in full satisfaction of the parties’ respective claims for post-V-Day adjustments to the equalization payment.

The Mahr

c. The husband shall pay to the wife the amount of $209,000 in full satisfaction of his contractual obligations to make such payment to the wife under the terms of the Mahr dated January 21, 2001. [For clarity, the sum of $209,000 CAD is the agreed-upon amount that is payable under the terms of the Mahr].

Retroactive Child Support

d. The wife shall pay the husband the sum of $5,931 in full satisfaction of retroactive Table Child Support payable for the period November 1, 2016 to and including October 1, 2021;

e. The husband shall pay the wife the sum of $686.02 in full satisfaction of retroactive section 7 expenses for the benefit of M.N., born on June 20, 2004, for the period October 1, 2016 to and including October 1, 2021;

Prospective Child Support

f. Commencing on November 1, 2021 and on the first day of each following month, the husband shall pay the wife Table child support for M.N. in the sum of $692 a month, which is based on the husband earning an annual imputed income of $74,100.

g. Commencing on November 1, 2021, and on the 1st day of each following month, the husband shall pay the wife his proportionate share of M.N.’s s.7 expenses, which is 31% at this time (assuming the wife’s annual impute income is $110,000 and the husband’s annual imputed income is $734,100). M.N.’s s. 7 expenses shall include, but are not limited to, the uninsured portion of M.N.’s orthodontia; the cost of piano lessons; and piano/theory exams, provided the wife obtains his consent in advance of incurring the expense(s), such consent not to be unreasonably withheld.

Annual Financial Disclosure

h. On May 1st every year, commencing on May 1, 2022, the parties shall exchange the annual income disclosure referred to in s.21 of the Federal Child Support Guidelines. The parties shall adjust the child support payable for the period between January 1, 2022 and December 31, 2022, inclusive based on the annual disclosure. If the wife is owed Table child support, then the husband shall pay the wife the amount owed by way of three equal installments payable on the 1st day of each month commencing on July 1st. If the wife owes the husband on account of an overpayment of child support, then she shall pay it to the husband according to the just-mentioned terms.

i. As soon as M.N. decides where she plans to attend school for her post-secondary studies, the wife shall advise the husband in writing of the details and provide a breakdown of the estimated expenses, along with full information about any student loans, bursaries and/or scholarships to which M.N. is entitled; for which she has applied; and/or which she has or does receive. The parties shall share the cost of M.N.’s post-secondary studies, which expenses shall include but not be limited to, tuition, residence, meal plan, books and supplies, after first applying any amounts received or available to M.N., as just stated; and any available RESP funds. The cost shall be shared proportionately, based on the income disclosure they provide to one another on May 1, 2022.

j. If M.N. will be residing with the wife while she is enrolled in post-secondary education, then the husband shall pay the wife monthly Table child support for M.N. If M.N. attends post-secondary school away from Toronto and M.N. resides away from the wife’s home to attend school but otherwise resides with the wife, the husband shall only pay child support for four “summer months”, being May through August.

Security for Child Support

k. So long as the wife is entitled to child support for M.N., the husband shall maintain any group disability and group life insurance that is available to him through his employment. Within 10 days from the date of this order, he shall provide the wife with proof from his employer of the benefits he current has and any to which he is entitled through his employment in relation to disability and life insurance. So long as group disability and/or life insurance is available to him through his employment, he shall maintain such insurance. He shall designate the wife as a beneficiary of such life insurance coverage in an amount sufficient to secure his child support obligations to the wife under this order. For clarity, this obligation refers to both Table child support and s. 7 expenses.

l. If life insurance coverage is not available to the husband through his employment, then the husband shall immediately take reasonable steps to obtain term life insurance coverage on his life in an amount that will be sufficient to secure his child support obligations to the wife under this order, as described in (k.) above. If necessary, in order to obtain the total amount of insurance required to secure his child support obligations under this order, the husband shall apply for life insurance at a minimum of three major insurance companies. Contemporaneously with making any application for life insurance, he shall provide the wife with a copy of the application. He shall promptly provide the wife with copies of the communications he has with the insurance companies, which shall include but not be limited to, requests for information made by the proposed insurer, provisions to the insurer of information they requests; any offers made by the insurer regarding obtaining coverage; and any rejections of his application he has made.

m. (a) If, in response to an attempt he made to obtain life insurance coverage at reasonable cost to him under (i) above, the husband succeeds in obtaining an offer to acquire sufficient life insurance at reasonable cost to him, then he shall obtain such coverage and maintain it; (b) If, after having attempted to obtain life insurance coverage in an amount(s) that, in total, are sufficient to secure his child support obligations under this order, the husband is only able to obtain life insurance coverage at reasonable cost to him in a total amount that is insufficient to secure his child support obligations to the wife under this order, then he shall obtain and maintain the maximum coverage available to him at reasonable cost and, if the circumstances set out in (d) below apply, provide the wife with the opportunity to contribute the balance of the cost of coverage offered; (4) If the husband is able to obtain life insurance coverage to secure his child support obligations to the wife under this order but such coverage is not available to him at reasonable cost to him, then he shall immediately advise the wife in writing that the coverage is not being offered to him at reasonable cost to him; advise the wife of the portion of the cost, which he can reasonably afford to pay and provide the wife with an opportunity to contribute to the cost to the extent that it exceeds the amount that the husband can reasonably pay. The wife, at her sole option, may agree to contribute to the costs of the coverage offered. If she does not do so, then the husband shall only be obliged to maintain the maximum amount of any coverage that is available to him at reasonable cost to him; (5) If, in any instance where the husband advised the wife that coverage offered to him has not been offered to him at reasonable cost, or where the wife has communicated to the husband that she is prepared to contribute toward the cost of coverage but the proportions each party should contribute are not agreed to, the parties shall immediately take steps to mediate the issue at Mediate393/361 before either party brings a motion for an order that the husband obtain and/or maintain a particular policy(ies) at a particular cost to him. To be clear, given that offers to obtain coverage may by time-sensitive, the party shall comply with the terms in this subparagraph in a timely way.

n. If, at the time of his death, no life insurance coverage is in place or any coverage in place will not fully secure his outstanding child support obligations under the terms of this order, then the husband’s estate shall be bound by the child support terms of this order, which terms shall constitute a first charge on his estate.

o. As the obligation to maintain life insurance in order to secure a recipient parent’s right to child support under an order is an incident of a child support order, the obligations contained in this paragraph shall be subject to variation, if a material change in circumstances occurs.

p. For clarity, the husband’s obligation to pay child support under this order shall terminate when M.N. ceases to be a child of the marriage, as defined by the Divorce Act.

q. The husband shall not unilaterally terminate any life insurance coverage he has been maintaining for the purpose of securing his child support obligations under this order in the absence of the wife’s written consent to the termination of the coverage or a court order that has been obtained on reasonable notice to the other parent, confirming that the husband’s child support obligation has ended and security is no longer required.

r. (i) If, at any time, an insurer notifies the husband that they intend to reduce the amount of or cancel the coverage, or if they notify them that they have reduced the amount of coverage or cancelled the coverage, then the husband shall immediately notify the wife of the circumstances in writing; (ii) if an insurer reduces the amount of coverage or cancels the coverage, the husband shall attempt to re-instate the amount of coverage or the policy, if the coverage was terminated. If he is unable to re-instate that amount of coverage or the policy itself, as the case may be, then he shall take immediate steps to attempt to increase or replace the coverage; (iii) when taking steps to obtain life insurance coverage for the purpose of replacing the coverage that will no longer be available under the policy referred to in subparagraph (ii) above, the terms contained in subparagraphs m. shall apply.

s. Immediately upon obtaining any life insurance coverage on his life, the husband shall provide a signed, irrevocable Authorization and Direction to the insurance provider, on which he shall authorize and direct the insurance provider to provide information regarding the policy coverage and the status of the coverage to the wife, if and when she requests such information from them. For clarity, this requirement is ordered in addition to, and not instead of any of the husband’s obligations in subparagraphs l. m. and q. above to provide notice and/or information to the wife.

Spousal Support

t. The wife shall pay the husband lump sum spousal support in the sum of $28,062 in full satisfaction of the balance of his spousal support.

Damages for Malicious Prosecution

u. The wife shall pay the husband general damages in the sum of $40,000 and punitive damages in the sum of $10,000, in full satisfaction of the husband’s claim for damages arising from the tort of malicious prosecution, which the wife committed.

Payments of Amounts Ordered in Subparagraphs a., b., c., d., e., t. and u. above and the Release of Matrimonial Home Sale Proceeds

v. The parties shall immediately authorize and direct Brunga Law Professional Corporation to distribute the balance of the proceeds of sale being held in trust for the parties by the law firm, in the approximate amount of $573,528, plus any accrued interest as follows and in the following order:

i. 50% of any accrued interest on the proceeds that have not been disbursed to date to each party;

ii. 50% of the balance after payment, if any under (i), minus $14,390.09 and;

iii. 50% of the balance after payment, if any, under (i), plus $14,390.09.

Registration of Confirmation of Receipt of Mahr Payment:

w. On Monday, September 12, 2022, the parties will meet at a FedEx or Purolator office, at 6:30 p.m. and the wife shall sign the necessary form to confirm that she received the Mahr from the husband and the parties shall sign the necessary form to apply for the Islamic divorce. Both parties shall send these required forms to the Interest Section of Islamic Republic of Iran in Washington D.C., USA, along with the required pieces of Iranian identification in front of one another. Immediately upon the wife receiving the stamped receipt of the Mahr and upon the husband receiving the Islamic divorce from the Interest Section of the Islamic Republic of Iran in Washington, USA, they shall each provide a copy to one another of the said Mahr receipt and Islamic divorce. The parties shall cooperate to obtain all necessary forms from an approved agency to give effect to this subparagraph

~~x. ~~~~Immediately upon the release of the funds to the wife pursuant to paragraph v.(ii) above, the wife shall sign two receipts in which the wife confirms that she has received the Mahr from the husband. She shall give one originally signed receipt to the husband immediately after signing it. Within 30 days from the date of this Order or the delivery of the amounts payable to each party by the law firm, whichever occurs later, the wife shall sign the receipt in duplicate and apply for the registration of the Mahr receipt and submit the stamped receipt to the Interest Section of Islamic Republic of Iran in Washington, USA. ~~

y. ~~~~Within 60 days of this order or receipt of the confirmation by the Interest Section of the Islamic Department of Iran in Washington DC that payment of the Mahr has been made, whichever is later, the husband shall apply for an Islamic divorce at an approved agency in Toronto and register the divorce with the Interest Section of Islamic Republic of Iran in Washington, D.C., U.S.A.

Costs

z. If the parties cannot agree on the issue of costs, then either party shall serve and file written costs submissions of no more than 3 pages (plus a Bill of Costs and any Offers to Settle, within 30 days. Responding cost submissions of no more than 3 pages (not including a Bill of Costs plus any other Offers to Settle he/she relies upon in response to the other party’s submission), shall be served and filed within 10 days of the receipt of the other party’s costs submissions. Reply submissions, of no more than 2 pages, if any, shall be served and filed within 5 days of receipt of the other party’s responding costs submissions.

M. Kraft, J.

Released: November 18, 2021

COURT FILE NO.: FS-16-412868

DATE: 20211118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELHAM RAMEZANI

Applicant

– and –

YAHJA NAJAFI

Respondent

REASONS FOR JUDGMENT

M. Kraft, J.

Released: November 18, 2021

[1] Exhibit #107: the husband’s Employment Contract with Candu Energy Inc., dated November 16, 2020.

[2] M.N. was called as a witness; the wife’s sister was called as a witness; and the parties called three witnesses to testify about Islamic law and the Mahr.

[3]Specifically, the wife’s written evidence-in-chief was put forward in affidavits, sworn by her on October 19, 2020; November 9, 2020; November 16, 2020; and March 21, 2021. The husband’s written evidence-in-chief was put forward in affidavits, sworn by him on November 9, 2020; November 23, 2020; and April 20, 2021.

[4] Toronto Small Claims Court, Court File Number SC-19-5507-00, issued on May 14, 2019. The plaintiff in the action is the wife and the defendant is Carolina Morfin, who runs C&M Homestay Agency.

[5] Exhibit #62: Video of the wife’s police interview on October 17, 2006. Wagg Letter, dated January 14, 2019.

[6] Exhibit #82: Bail Variation, dated January 30, 2017.

[7] Exhibit #4: Order of Frank, J., dated January 30, 2017.

[8] Exhibit #78: Affidavit of the wife, sworn on February 15, 2017 sent to the Crown Attorney.

[9] Exhibit #81: Transcripts of proceedings before Oleskiw, J., of the OCJ, dated June 28, 2017.

[10] Exhibit #25: Trust Ledger Statement, dated March 17, 2020 from Brunga Law Professional Corporation.

[11] Exhibit #6: Order of Hood, J., dated July 22, 2021.

[12] The Court was closed on September 30, 2021 for Truth and Reconciliation Day.

[13] “Rls” refers to the Iranian Rial, the currency in Iran.

[14] Exhibit #40:Purchase Agreement between Mr. Gharakhani and the husband, dated January 10, 2002.

[15] Exhibit #42: Certified Translation of the Deed being transferred into the wife’s name, dated May 15, 2002.

[16] Exhibits #44 and #45, Certified Translation of purchase agreement by the wife to Fatemeh Neda Hosseinzad, dated December 14, 2002.

[17] Exhibit #52: Pictures of M.N. alone and M.N. with the paternal grandmother in Iran.

[18] Exhibit #47: Certified translation of Power of Attorney given by wife to her uncle, dated December 13, 2020.

[19] Exhibit #48: Certified translation of appraisal report of land in Iran in 2016.

[20] Exhibit #50: Certified translation of appraisal report of land in Iran in 2020.

[21] Exhibit #54: Exchange rate between Canadian Dollar and Iranian Rial, dated March 16, 2021, World of Jewellery.

[22] Exhibit #29: valuation of Iranian coins (Azadi), as at January 21, 2001; as at July 10, 2016; and as at February 21, 2020, prepared by World of Jewellery.

[23] Exhibit #60: Statement of Family Law Value Defined Contribution Benefit report.

[24] Exhibit #35: ScotiaBank bank account statements, account #15552 00754 85 from the date of separation onward.

[25] Exhibit #29: Annual Mortgage Statements from Scotiabank from 2016 to 2019.

[26] The husband did not incur rent until February 2017, even though he was forced to leave the matrimonial home on October 17, 2016, because he was required to live with a surety for four months.

[27] being 50% of the principal received on closing of the matrimonial home amortized over the 32-month period,

[28] In the husband’s Answer, dated January 13, 2017, paragraph 3.

[29] Exhibit #104: Letter of Opinion as to the FMV of the matrimonial home as at April 20, 2017, requested by the husband.

[30] Exhibit #36: Letter of Opinion as to the FMV of the home as at January 24, 2017, requested by the wife.

[31] Exhibit #36: Letter of Opinion as to the FMV of the home, as at January 17, 2018, requested by the wife.

[32] Exhibit #32: Appraisal of matrimonial home as of July 2, 2019 from Assurance Appraisal Inc., commissioned by the wife.

[33] Exhibit #25: Trust Ledger statement from Brunga Law Professional Corporation, dated March 17, 2020.

[34] Exhibit 99: Letter from Vincent Associates, dated March 9, 2020 confirming that the husband received $20,461.53 was a one-time compensation payment as a result of termination of his employment.

[35] The wife’s income in 2018 included rental income of $3,280 from Ms. Ghafuri and $4,800 from housing students

[36] Exhibit #83: Withdrawal of Criminal Charges, dated June 28, 2017.

[37] Exhibit #86: copies of cheques from Mr. Najafi to Danson Recht LLP, dated November 17, 2016; November 23, 2016 and December 1, 2016.

[38] Exhibit #114: Letter from Toronto Police Service to Mr. Najafi, dated November 29, 2018.

[39] Exhibit #84: Letter from Toronto Police Service, dated February 18, 2019 to Mr. Najafi.