SUPERIOR COURT OF JUSTICE - ONTARIO

Court File and Parties

COURT FILE NO.: FS-41215/18

DATE: 2021-12-10

RE: Lesley Mathers, Applicant

AND:

Mark Crowley, Respondent

BEFORE: Kurz J.

COUNSEL: Fadwa Yehia, for the Applicant

Mark Crowley, Self-represented

HEARD: April 10-12, 15, 16 and May 21, 2019, March 17, September 17, and December 3, 2021

endorsement

Introduction

[1] On September 17, 2021 I heard from the parties but was unable to complete the re-opened evidentiary portion of this trial. As I wrote at para. 3 of my endorsement:

We have been unable to complete this matter as Ms. Mathers only produced her documents, including her Divorcemate calculations, last night. That is in large measure because of the delay in Mr. Crowley producing his documents in accord with my August 12, 2021 endorsement. I am not necessarily criticizing either party, in light of the general delay in this matter.

[2] I directed the parties as follows:

[9] Within 30 days, the parties will prepare, serve and file their calculations as follows:

a. For 2018: Ms. Mathers’ income of $118,629 as previously found and Mr, Crowley’s income of $32,785 plus an imputation of income of $29,100 for a total of $61,886;

b. For January 2019 – January 2020, inclusive: Ms. Mathers’ income of $80,985 and Mr, Crowley’s income of $33,351 plus an imputation of income of $29,100 for a total of $62,451;

c. For February – December 2020: Ms. Mathers’ income of $66,967.88 and Mr. Crowley’s income of $37,576 (inclusive of CPP and OAS);

d. For 2021 onward: Ms. Mathers’ income of $66,000 and Mr Cowley’s income of $37,575.95 (both inclusive of CPP and OAS).

[10] I ask that the parties prepare Divorcemate or My Support Calculator calculations based on the figures set out above and that they include calculations for lump sum support. I also request spreadsheets summarizing those figures.

[3] My September 17, 2021 direction also required Ms. Yehia to produce to Mr. Crowley all receipts and a spreadsheet that she relies upon for the calculations regarding her claim to reimbursement for:

a. all utility expenses on the matrimonial home from April 1, 2017.

b. all carrying costs of the HELOC that were paid by Ms. Mathers post separation;

c. One half of the carrying costs of the matrimonial home (i.e. mortgage, taxes, and insurance) that Ms. Mathers has paid since April 1, 2017 and continued to pay until the sale of the home was completed.

[4] I further directed that if the parties “do not reach agreement [regarding the claims set out above] within a further 14 days, Ms. Yehia will produce an affidavit of up to five pages plus all relevant receipts and her spreadsheet, 60 days from now. Mr. Crowley may file a responding affidavit of up to five pages plus any applicable receipts and his spreadsheet within 14 days of receipt of Ms. Mathers’ affidavit. Those affidavits will be entered into evidence upon the return of this matter.”

Mr. Crowley’s Explanations for his Failure to File Further Materials

[5] Since that date, I have received the materials requested from Ms. Yehia, punctually prepared on behalf of Ms. Mathers, but nothing from Mr. Crowley.

[6] In oral argument, Mr. Crowley asserts that his response to Ms. Mathers’ materials has been two-fold. First, he attempts to argue, contrary to my trial findings, that there was a binding separation agreement between the parties, which should govern all calculations. Second, he asserts that his statement of claim, in a recently commenced civil lawsuit against Ms. Mathers and her counsel, Ms. Yehia, for what he has described as “breach of trust”, operates as a response to Ms. Mathers’ materials.

[7] Mr. Crowley’s assertion regarding a binding separation agreement between the parties is contradicted by my trial endorsement of August 30, 2019, 2019 ONSC 5088, as well as my subsequent endorsement of March 17, 2021. In my trial endorsement, I wrote at para. 41 that the parties had “exchanged drafts of separation agreements without a consensus on its terms.” At para. 45(11) of that endorsement, I wrote, within the context of my acceptance of Ms. Mathers’ narrative regarding the proper separation date:

Ms. Mathers’ unwillingness to allow Mr. Crowley to use the matrimonial home as the launching pad for his proposed home rebuilding career is a very telling point. It bespeaks her desire to separate the parties’ finances, particularly regarding their most valuable asset. He agreed to buy her out. But that buy-out had to be a part of a global settlement that the parties were unable to agree upon. Nonetheless, both were making plans for their assets as separated persons well before April 1, 2017.

[Emphasis added.]

[8] Further, in my endorsement of March 17, 2021, I wrote at para. 6:

Based on the evidence submitted at trial, there is no separation agreement signed by both parties and thus no “binding domestic agreement” under the Family Law Act. Rather, Mr. Mathers [sic] prepared a series of draft agreements that were never signed by Ms. Mathers.

[9] With regard to Mr. Crowley’s lawsuit against Ms. Mathers and Ms. Yehia, I have not been provided with a copy of his statement of claim. But because the points cited below are relevant to my analysis of whether there is a need to tailor spousal support to allow for a “clean break” between the parties, because Mr. Crowley is self represented, and in the hopes of avoiding the unnecessary expenditure of time and money, I remind the parties of the following.

[10] Based on his description, Mr. Crowley’s lawsuit against Ms. Mathers and Ms. Yehia for “breach of trust”, raises issues that he has already raised before me, which I have adjudicated. As I wrote at para 11 of my May 14, 2021 endorsement:

Mr. Crowley takes a very different tack in his amended supplemental written submissions. Despite being granted as second opportunity, much of what he wrote is irrelevant, improper, and/or attempts to reargue issues that I have already decided. Mr. Crowley contends that:

1. There was or should have been an agreement to resolve all financial issues before Ms. Mathers’ former counsel, Jennifer Treloar, passed away.

2. Moreover, Ms. Mathers’ present counsel, Ms. Yehia, is responsible for the fact that no separation agreement between the parties was finalized.

3. Mr. Crowley goes further, to condemn Ms. Yehia for what he alleges to be her “breach of standard of care, bad faith, unreasonable, negligent and unprofessional behaviour”. He asserts that that she endeavored “to

mislead the court and conceal relevant information” about some alleged agreement between the parties.

4. Implicit in Mr. Crowley’s assertions is the notion that both Ms. Yehia and Ms. Mathers owed him a duty of care, to “maximize and protect the parties [sic] ‘family property’ and the interests of both parties.”

10.Mr. Crowley disputes Ms. Mathers’ description of his post-separation purchase of the Ancaster property while he was attempting to arrange the renovation of the matrimonial home for sale. She described that purchase as a failure to reasonably utilize his assets to produce income. Instead, Mr. Crowley blames Ms. Yehia and her purported “scorched earth” litigation policy for his financial misfortune.

[11] Considering those arguments, I found at para. 15 that:

1. Neither Ms. Yehia nor Ms. Mathers had a duty of care to Mr. Crowley on the facts of this case. Ms. Yehia’s duty is to her client not to him: Mantella

v. Mantella, 2006 CarswellOnt 2204 (Ont. S.C.J.), at para 40, 46, 52. Further, I find no impropriety in the method in which Ms. Yehia represented Ms. Mathers in this case.

2. There is no evidence or authority for the proposition that Ms. Mathers breached any legal obligation owed to Mr. Crowley in regard to this litigation.

3. Neither Ms. Yehia’s nor Ms. Mathers’ conduct of this proceeding is responsible for Mr. Crowley’s post-separation financial losses. The trial record is replete with instances in which he made improvident financial decisions. I cite the most relevant instances in my August 30, 2019 endorsement and below.

December 3, 2021 Hearing

[12] At the hearing of December 3, 2021, I made the following documents exhibits at trial:

Exhibit 15: Mr. Crowley’s 2019-20 income tax returns and notices of assessment;

Exhibit 16: Ms. Mathers’ 2019-20 income tax returns and notices of assessment;

Exhibit 17: Ms. Mathers’ affidavit of November 11, 2021 and attached exhibits;

Exhibit 17: Ms. Mather’s spreadsheet regarding spousal support scenarios and underlying SSAG calculations for the various scenarios.

[13] I offered Mr. Crowley the opportunity to cross examine Ms. Mathers on her affidavit. He declined to do so.

Issues

[14] The balance of the issues in this matter are as follows:

1. Where on the SSAG range should Mr. Crowley’s entitlement to spousal support sit?

2. Should I grant spousal support on a lump sum or periodic basis?

3. What should be the quantum of Ms. Mathers’ spousal support obligations to Mr. Crowley?

4. What amount is Ms. Mathers entitled to receive from Mr. Crowley to reimburse her for her payments on his behalf, cited above?

Issue No 1: Where on the SSAG range should Mr. Crowley’s entitlement to spousal support sit?

[15] In my trial endorsement, I found that Mr. Crowley is entitled to support from Ms. Mathers, commencing on August 30, 2018, on a non-compensatory basis. In my endorsement of May 14, 2021, I found that the duration of Mr. Crowley’s entitlement to spousal support is indefinite because of the long-term length of the parties’ marriage (22 years) and because Mr. Crowley met the “rule of 65”.

[16] In looking to range, Ms. Yehia argues that Mr. Crowley’s entitlement to spousal support should be in the mid-range because his entitlement was not compensatory. Mr. Crowley offered no arguments about range on December 3, 2021. But he did argue that he should be entitled to periodic term support of $2,000 per month; a figure far above the high-range SSAG indefinite-term periodic support calculation of $993 per month. He offered that figure without reference to the SSAG or their ranges. He previously argued for his entitlement under the high range and offered lump sum figures far higher than those offered by Ms. Yehia. However, the basis of his calculations were not the figures that I found to be applicable in my September 17, 2021 endorsement.

[17] Attached as Schedule “A” to this endorsement is a copy of the spreadsheet that Ms. Yehia provided to the court, which summarizes her SSAG calculations, based on the scenarios that I determined in my September 17, 2021 endorsement.

[18] I agree in part with Ms. Yehia regarding range, in that I find that the proper range for the calculation of spousal support is closer to the mid-range rather than the high range. I say this because:

1. Mr. Crowley’s support entitlement is not compensatory. That is because:

a. Mr. Crowley did not diminish his career prospects in order to take over primary parenting of the parties’ children or for any other valid reason. At best, as he controversially describes it, he was an equal caregiver to the parties’ children. Ms. Mathers strongly rejects Mr. Crowley’s characterization of his parenting role. I have made no finding in that regard.

b. There is no evidence that Mr. Crowley contributed to Ms. Mathers’ career prospects.

2. Mr. Crowley was able to work throughout the marriage but failed to work for significant periods of time during that marriage. As I wrote at paras. 64 and 65 of my trial endorsement:

[64] Ms. Mathers was unhappy about Mr. Crowley’s choice to take a buyout from WSIB without any employment prospects. He promised her that he would drive a truck, if necessary, to support their nascent family. The offer was a metaphorical as well as a literal one. Either way, he refused to honour it.

[65] That does not mean that Mr. Crowley should necessarily have driven a truck, particularly after separation. It does mean that he should have sought out a permanent, full-time job. He refused to do that. He chose instead to spend years in the unproductive and unrealistic pursuit of a career as a home rebuilder/reseller, as I describe below.

3. On the other hand, Ms. Mathers diligently pursued her career while still maintaining what was at minimum an equal parenting role.

4. While the parties’ marriage was a long-term one, meaning that it lasted over twenty years, its duration was only two years above the long-term cut-off figure.

Issue No. 2: Should I grant spousal support on a lump sum or periodic basis?

Principles that Govern an Award of Lump Sum Spousal Support under the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[19] Most spousal support orders call for monthly periodic payments. However, I have the jurisdiction to grant lump sum support under s. 15.2(1) of the Divorce Act, which states:

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.

[20] Under s. 15.2(3), the court may order the payment of spousal support “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.”

[21] The factors that a court must consider in determining spousal support are set out at s. 15.2(4) as follows:

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.

[22] Under s. 15.2(6), an order for spousal support must meet the following objectives:

(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.

[23] In Davis v. Crawford, 2011 ONCA 294, 95 R.F.L. (6th) 257 (Ont. C.A.), the Ontario Court of Appeal looked to the factors that must be balanced in determining whether to order lump sum spousal support. The court recognized that “a lump sum award should not be made in the guise of support for the purpose of redistributing assets”. While that transfer may be its effect, “[t]he real question in any particular case is the underlying purpose of the order”: para. 62, citing Willemze-Davidson v. Davidson, 1997 CanLII 1440 (ON CA), [1997] O.J. No. 856, 98 O.A.C. 335 (C.A.), at para. 32.

[24] The court must also look to the payor’s ability to make the lump sum payment without affecting their future self-sufficiency: para. 63.

[25] The balancing process described by the court involves a weighing of the perceived advantages and disadvantages of a lump sum spousal support award. As Simmons and Lang JJ.A. wrote for the five-judge panel in Davis v. Crawford:

[66] Most importantly, a court considering an award of lump sum spousal support must weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages of making such an order.

[67] The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to terminating ongoing contact or ties between the spouses for any number of reasons (for example, short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.

[68] Similarly, the disadvantages of such an award can include the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.

[69] In the end, it is for the presiding judge to consider the factors relevant to making a spousal support award on the facts of the particular case and to exercise his or her discretion in determining whether a lump sum award is appropriate and the appropriate quantum of such an award.

[26] Simmons and Lang JJ.A. went on to say at para. 70 that “we do not endorse the submission that lump sum spousal support awards must be limited to ‘very unusual circumstances’ as a matter of principle. Nonetheless, we agree that most spousal support orders will be in the form of periodic payments.”

[27] At paras. 71-74, the court then set out some practical reasons that may militate against a lump sum award, such as:

1. the unavailability of funds to allow for a lump sum payment,

2. the equalization payment may obviate any needs for a lump sum payment to assist in the transition to separate lives,

3. the absence of considerations that favour such an award from either spouse’s perspective, and

4. the general exigencies of life, including the possibility that the parties’ means, and needs will change, will outweigh the considerations favouring a lump sum award.

[28] In Racco v Racco, 2014 ONCA 330 at para. 31, the Court of Appeal for Ontario relied on Davis v. Crawford in upholding a trial award of lump sum spousal support. The court stated that it was granting lump sum spousal support based on the high level of animosity between the parties, a history of non-payment, the possibility that the payor’s financial situation would continue to be precarious, the desirability of terminating personal contact, and the need to provide capital to the support recipient.

Application of Principles to the facts of this Case

[29] The notion of a lump sum payment was originally raised by Mr. Crowley, who indicated to the court that he sought the capital to assist him with his projects. He previously provided figures to the court based on his calculations of his entitlement to lump sum support. In his written submission of October 11, 2019, at tab 3, p. 11 -12, he argued strongly for a lump sum spousal support award but also sought an unspecified review period without proof of a material change in circumstances. In his written “Respondent’s Amended Submission” of April 14, 2021, he set out a variety of scenarios for the payment of both periodic and lump sum support. The submission was ambiguous regarding the form of ongoing support he was seeking.

[30] When the matter was last in court, I described Mr. Crowley’s perspective on a lump sum award as “diffident”.

[31] For her part, Ms. Mathers favours such an award, largely because she can afford to pay it out of her share of the proceeds of sale of the matrimonial home and because she seeks a clean break from Mr. Crowley. She adds that it is unlikely that the parties’ needs will change over time as both are now retired and living on pensions and any savings. The net family properties of the parties, including their pensions and savings as of the date of separation have been equalized. Further, Ms. Mathers’ counsel points out that with the advent of Divorcemate calculations under the SSAG, the court is able to calculate the appropriate after-tax lump sum awards with great accuracy.

[32] Having heard Ms. Mathers’ position, Mr. Crowley now strongly opposes a lump sum award. He states, without having provided evidence, that he has lost all of his assets including both the matrimonial home and his Ancaster home, and is living only on his pension. He says that he has no assets. He feels that the result of these events is highly unfair to him. He believes that there has already been a material change in circumstances that entitles him to move for a variation of support even though I have yet to award it. He wishes to have the opportunity to move again for a variation even though both parties are now living solely on their pensions and savings.

[33] I have given this issue a great deal of thought. The lump sum support cases that I have seen have been based on a request by the recipient for such an award, often on the basis of the need for transitional capital or because of a history of non-payment of support. Here the request comes from the payor, for the reasons cited above.

[34] In considering all of the factors set out above, I find that a lump sum award is the appropriate one in the circumstances of this case. I say this because:

1. Ms. Mathers is able to make the payment out of her share of the proceeds of sale of the matrimonial home;

2. Mr. Crowley asserts (albeit without providing evidence) that he no longer possesses any assets. A lump sum payment would, depending on how the various entitlements, including costs, net out, provide him with some assets;

3. A lump sum award is easily ascertainable, as the Divorcemate SSAG calculations set out above, which are summarized in the spreadsheet attached as Schedule “A” to this endorsement, demonstrate;

4. This is an appropriate case for a clean break. The parties have no minor children in common and no reason to remain in contact. While Mr. Crowley is by no means abusive towards Ms. Mathers as the term is commonly understood, he has demonstrated an ability to argue and re-argue clearly determined issues of fact and law. I have set out examples above and in previous endorsements following the trial of this matter. While that is far from the only reason that this trial has been extended in the manner it has, it is a factor for the length of this trial. Further, and even more relevant to my consideration here, Mr. Crowley demonstrates an intention to continue to litigate with Ms. Mathers, even over matters already decided. He has indicated that he feels aggrieved by his failure to obtain the award he seeks in my previous endorsements. He has signalled his intention to move to vary a support award before I have granted it. Recently, he has commenced a collateral civil action against Ms. Mathers (and her lawyer) for a cause of action that, from his own description of it, appears to have a legally questionable foundation and which may amount to an abuse of process. The costs of this trial thus far will likely prove to be astronomical for Ms. Mathers, who has utilized counsel throughout. I fear that a periodic support award will unnecessarily leave the door open to constant litigation between the parties in their retirement years.

5. I note that Mr. Crowley has advised me that he is appealing my decision(s). He made that statement within the context of his argument that there will be ongoing litigation between the parties, whatever form of support I award. Mr. Crowley has the right to appeal my decisions in this case. If necessary, a higher court will correct any mistakes that I have made. But since he raised the issue, I feel it incumbent to state that I will not consider that potential appeal or Mr. Crowley’s remarks about it in my considerations regarding any aspect of this proceeding.

[35] Other than Mr. Crowley’s desire for a periodic support payment, the main reason that seems to militate against such an award is the fact that Mr. Crowley has demonstrated that he has what I may describe as a lack of practicality with money. He appears to have gone through a great deal of his own money pursuing unprofitable ventures, primarily the untutored renovation of the former matrimonial home. That being said, Mr. Crowley is undoubtedly a highly intelligent man who is quite conversant with figures and financial calculations. It is not the role of the court to treat Mr. Crowley as if he is incapable of managing his affairs when he has simply made some bad decisions.

[36] The primary difference between the parties’ financial circumstances arises from the impractical decisions that Mr. Crowley made, both before and after separation, from which Ms. Mathers explicitly distanced herself. While Ms. Mathers has support obligations towards her husband, he was never primarily dependant on her while they were together. I add that she should not have to share responsibility for his improvident post-separation financial decisions.

[37] For the reasons set out above, I find that this is an appropriate case for a lump sum award of spousal support.

Issue No. 3: What should be the quantum of Ms. Mathers’ spousal support obligations to Mr. Crowley?

[38] The lump spousal figures set out in the spreadsheet attached at Schedule “A” to this endorsement show that, added together, the mid-range and high-range lump sum spousal support figures for the parties are not substantially different. Adding up the lump sum figures from the years 2018 to present and then continuing them indefinitely, results in a mid-range lump sum figure of $172,082 and a high-range figure of $182,969. The difference is less than $11,000.

[39] While I have found that a figure closer to the mid-range rather than the high range is the more appropriate level of support, I retain some discretion in determining the exact figure. I award Mr. Crowley an amount that is approximately $3,000 above the mid-range, or $175,000. While not a vast amount, it is an amount that can be prudently invested to assist in Mr. Crowley’s support.

Issue No. 4: What amount is Ms. Mathers entitled to receive from Mr. Crowley to reimburse her for her payments in behalf of Mr. Crowley cited above?

[40] I have already found that Ms. Mathers is entitled to be reimbursed for the previously unascertained amounts that she paid on Mr. Crowley’s behalf towards utilities for the matrimonial home after April 1, 2017, post-separation carrying costs on the HELOC (utilized exclusively by Mr. Crowley), and the carrying costs of the matrimonial home from April 1, 2017 until the closing of its sale.

[41] The only evidence regarding those payments that I have before me was presented by Ms. Mathers. Mr. Crowley has provided no evidence or alternative calculations. Thus Ms. Mathers’ evidence and figures stand uncontradicted.

[42] I have reviewed Ms. Mathers’ affidavit of November 11, 2021. In that affidavit, she provides receipts and where they are not available, bank statements that support her claims. She also sets out her calculations. She claims $34,742.64 based upon:

1. $1,975.18 for all utility expenses on the matrimonial home from April 1, 2017;

2. $5,460.13 for all carrying costs of the HELOC paid by Ms. Mathers post-separation from March 2015 – March 2017

3. $27,307.33 for one-half of the carrying costs on the matrimonial home.

[43] I accept the accuracy of those figures and grant her the amounts she claims.

Conclusion

[44] For the reasons cited above, I order that Ms. Mathers shall pay to Mr. Crowley $175,000 as lump sum spousal support. Mr. Crowley shall pay to Ms. Mathers $34,762.64 for the post-separation adjustments set out above. Those amounts are in addition to those set out in my trial endorsement and shall be paid in the manner set out in that endorsement once the costs of this proceeding are calculated.

Costs

[45] The Applicant may submit her costs submissions of up to five pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle. The Applicant shall do so within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. , LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: December 10, 2021