COURT FILE NO.: 15-D-811
DATE: 2022/06/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barry O’Connor
Applicant
– and –
Constance O’Connor
Respondent
Jeffrey Langevin, for the Applicant
M. Peter Sammon, for the Respondent
HEARD: May 9, 10, 11 and 27, 2022
REASONS FOR JUDGMENT
Justice A. Doyle
[1] After a 29-year marriage, the parties are unable to agree on the issues of equalization payment, ongoing and retroactive spousal support, and retroactive sharing of post-secondary educational costs.
[2] The parties agree that as part of the equalization process, the applicant husband will transfer his interest in the matrimonial home to the respondent wife.
[3] The parties requested a divorce, and it will issue upon the filing of the clearance certificate.
[4] The issues for determination are:
a. What is the equalization payment?
b. Does the husband owe s. 7 expenses for post-secondary educational costs?
c. Is the wife entitled to spousal support on an ongoing and/or retroactive basis? In determining this issue, the court will be required to determine the parties’ respective incomes.
[5] For the reasons that follow, the court orders the following:
A divorce will issue upon the filing of a clearance certificate;
Within 60 days, the wife will pay the husband the amount of $63,721.44 failing which, post-judgment interest will accrue in accordance with the Courts of Justice Act; and as agreed between the parties, the husband will transfer his interest in the matrimonial home to the wife;
Within 60 days, each party will pay ½ of Carissa’s outstanding OSAP loan and the arrangements will be made directly with Carissa;
The wife’s claim for retroactive spousal support is dismissed; and
Commencing July 1, 2022, the husband will pay spousal support in the amount of $600 per month which will be subject to a material change of circumstances.
Background
[6] The parties were married on June 7, 1986 and separated on May 5, 2015.
[7] They have two children of the marriage, Carissa, born November 26, 1992 and Braeden born September 4, 1995. Both children, who were adults at the time, remained with the wife in the matrimonial home after separation.
[8] The wife is 58 years old and is unemployed and currently receiving CPP disability payments. Her 2021 income was $24,000.
[9] She currently lives with Carissa in the matrimonial home. Carissa is not employed at this time and is caring for her mother who is receiving treatment for cancer. She has obtained a university degree in health sciences and a diploma from Algonquin College.
[10] The husband is 64 years old and is part owner of Sheet Metal Guys with his common-law partner, Julie Cristiano and Thomas Spooner. His 2021 income was $34,255. He had obtained his sheet metal red seal certificate at Algonquin College in 2003. Before then he had worked as a shoe salesman and other odd jobs. He also had a handy man type of business that he did when he was not working full time. He continued this sideline business until 2014 but may have received a payment in 2015 relating to work done in 2014.
[11] The husband was working at Oakridge Heating and Cooling until his last day of work on July 23, 2015, when he was dismissed. His paycheque had bounced and he took a few days off work. He testified that when he approached the supervisor to discuss the cheque he was told to leave the property. He was ultimately awarded vacation pay and severance pay from the Labour Board.
[12] Mr. Spooner, a previous colleague at Oakridge, had suggested that the husband commence a business and that he would provide some start-up capital. The husband and his common-law partner along with Mr. Spooner opened up the business known as Sheet Metal Guys.
[13] The wife worked on and off during the marriage and for a period of time when she only had her Avon business.
[14] During the marriage, she worked at various jobs including law firms until 2020 when she was diagnosed with cancer and has been on CPP disability pension since that time. She is not certain when she will be returning to work.
Husband's Position
[15] The husband submits that the wife owes him an equalization payment of $99,132.04. The main disagreement between the parties is whether the wife is entitled to claim excluded property which represents alleged inheritances that she received during the marriage.
[16] Regarding the wife’s claim for excluded property deductions, the husband relies on Rogers v. Rogers, 2013 O.J. No. 1434, where the court found, among other things, that the inheritance funds were co-mingled with family funds and thereby not entitled to the exclusion.
[17] The children’s inheritances were placed into accounts with both parties’ names and were used for other things other than just the children.
[18] The wife placed her inheritance from her aunt, Dorothy Ellen Perry (her father’s sister) in an Royal Bank of Canada (“RBC”) account with United State of America funds and placed the husband’s name on the account. An exhibit confirmed the estate details. He also questions the tracing of the funds from the aunt’s estate to this account.
[19] Regarding the s. 7 expenses claimed, he indicates that he supported the child Carissa for her first post-secondary degree and was aware that she took 5 years to complete a 4-year program. The husband was not aware that she had taken college courses as Carissa was estranged from him at that time.
[20] Regarding spousal support, the wife is not entitled to compensatory support as she was not disadvantaged and this was not a traditional marriage. Neither party bettered themselves more than the other.
[21] She was industrious and did well in her work endeavours. She achieved the president’s club status with Avon due to her sales and ability to achieve targets.
[22] At the time of separation, she was working for a local law firm.
[23] In 1997 when he was arrested for theft at the Petawawa base, she was working at a daycare and in the Avon business.
[24] The wife is not entitled to spousal support based on needs. She has substantial assets and will be receiving another sizeable inheritance from her father. She is financially in a better position than him as both her home and rental property are debt free.
[25] In contrast, he has a mortgage on his home that he jointly owns with his partner and little capital assets.
[26] His business is progressing and he has gross sales of $90,000 which is not an insignificant amount. He has re-established himself in the workforce in a skill he knows and has been performing for most of his career. In addition, he has reduced business expenses by converting his garage into a workshop. He has established a clientele.
[27] He earns a modest income of approximately $30,000 per annum as does his partner.
[28] In contrast, the wife earned $320,000 in 2021 as executor’s compensation for administration of her father’s estate completed over 4 years which translated to approximately $80,000 per year.
[29] Even if he had stayed at Oakridge Heating and Cooling, that company was having issues at the time of his dismissal as they could not make pay roll. His future employability there was not certain.
[30] Regarding the imputation of income, he has no obligation to move from his home and has done well in his small community in Renfrew County.
[31] He would consider a lump sum payment if the court found that there is a legal basis for this spousal support claim.
Wife’s Position
[32] The wife submits she owes an equalization payment of $48,969.57. One main difference between the parties is the treatment of the bank accounts that held the inheritance funds she received from her aunt and mother which she argues she can deduct as excluded property.
[33] The other difference pertains to the children’s accounts which were set up by the parents on behalf of the children. Initially she used the “baby bonus” cheques (as the Child Tax Credit was previously called) to deposit into their respective accounts for education purposes.
[34] Then, the children each received $10,000 from her mother’s estate. It was the maternal grandmother’s intention that these funds be used for a down payment on a home. After the separation, the mother arranged for the children to use these funds for the purchase of a vehicle.
[35] The account set up for Carissa had a balance of $11,496.88 at the date of separation. The wife closed this account after separation and the balance in her new account is $24.02. The account set up for Braeden at the date of separation had a value of $13,772.58 and the wife closed that account after separation and the balance is $661.83.
[36] Regarding the joint RBC account with US funds, the wife states that the husband’s name was done solely to ensure the right of survivorship. Other than the one trip that she paid for the family to travel to Disney World, the monies were kept separate from family expenses.
[37] In her net family property statement, the wife states that the value of the matrimonial home is $174,000 which is the value of the appraised value minus disposition costs. However, she conceded that since she is not planning to sell the matrimonial home in the foreseeable future, she will not be claiming the disposition costs.
[38] Regarding s. 7 expenses, the wife produced Carissa’s 2014 to 2016 tax returns and Notices of Assessment and her OSAP loans. She currently has a balance owing of $26,325.75. She is requesting the each of the parents pay one half of the outstanding OSAP balance owing.
[39] The wife claims spousal support is based on need and compensatory elements. She was economically disadvantaged during the marriage and was the secondary wage earner.
[40] She is ill and is undergoing treatment. At this time, she receives CPP disability income and has assets of approximately $800,000. It is not reasonable for her to divest herself of her home and the rental property which generates rental income.
[41] Based on the Divorcemate calculations from 2015 to 2020, using the mid-range spousal support, the husband owes the wife retroactive support the amount of $54,928. Using the mid-point of net tax since the husband will not be entitled to deduct the support payments nor will the wife be obliged to include these sums on her tax returns, the amount owed is $39,740.
[42] Regarding ongoing spousal support, she is prepared to impute income based on a return on her investments. In accordance with Halliwell v. Halliwell, 2017 ONCA 349, the court is invited to consider what is a reasonable rate a prudent advisor would earn at the relevant time. In accordance with the Courts of Justice Act, R.R.O. 1990, c. C. 43, the wife is prepared to impute income to her based on the post-judgment interest rate of 2% for an annual return of $16,320 being added to other income for a total imputed income of $33,581.
[43] The wife argues that the husband can manipulate his income through his business that he did not really have a clear understanding of his business financial statements and that he is underreporting his income.
[44] The husband’s 2021 line 150 income was $34,255.90 which includes dividend income of $31,801.05 and other income. He acknowledged that he took a “paper loss of $8261.49 being his share of the inventory transferred from the partnership to the company. He also testified that 40% of his monthly expenses of the household are “run through” his business and therefore 40% of the housing utility and transportation expenses as shown in his financial statement sworn May 2, 2022, should be added back into his income. This amounts to $8280. The total of his line 150 income, plus his “paper loss” = $42,517.39 plus $8280 household expenses run through the business = $50,797.39.
[45] The wife argues that the entire undistributed earnings of the company in the amount of $20,676.02 should be imputed to the husband as he is the real directing mind of the business whereas his common law partner, Ms. Cristiano, is just an office person and bookkeeper. It is noteworthy that in 2021, she drew more than the husband i.e. $27,536.96 compared to his draw from the company in the amount of $23,044.24.
[46] The undistributed earnings are calculated by using the company's net income of $71,257.22 minus each of the husband and Ms. Cristiano’s draw leaving the amount of $20,672.02
[47] Therefore, Mr. O’Connor’s income should be imputed at $50,797.39 plus the undistributed earnings for an income of $71,500. His ongoing spousal support based on the mid-range support is $1382 per month or a lump sum of $44,484.
Issue #1: What is the equalization payment?
Introduction
[48] Firstly, the parties showed the jointly owned matrimonial home property only on the wife’s side of the net family property statement as the parties agreed that the husband will transfer his interest to her. The court must follow the provisions of the Family Law Act, R.S.O. 1990, c. F3, that requires that the property be shown in accordance with title. The resulting calculations do not change the final result.
[49] When showing the matrimonial home on both sides, the husband owes the wife an equalization payment of $28,778.56.
[50] Since the wife is buying out the husband’s interest in the matrimonial home, she will owe him $92,500 for his half-interest. Once you deduct the equalization payment he owes, the wife will owe the husband the amount of $63,721.44.
[51] The wife will have 60 days from the date of this decision to pay the amount of $63,721.44 to the husband. After that date, the payment will accrue post-judgment interest in accordance with the Courts of Justice Act.
1. Matrimonial home:
[52] The Rivington appraisal valued the matrimonial home as of May 5, 2015, the date of separation at $184,000 and $185,000 as of January 29, 2020.
[53] In his NFP statement, the husband shows a value of $184,000 although his financial statement shows a value of $250,000. He has not provided a valuation or opinion regarding this value.
[54] The court finds that the matrimonial home is valued at $185,000 as per the most recent Rivington appraisal dated January 29, 2020. In accordance with Sengmueller v. Sengmeuller and as conceded by the wife, the court will not permit the deduction for disposition costs as she has no immediate intention to sell the home.
2. Household Items and vehicles
[55] The value of the household contents and garden shed contents is $4000. This value was presented by the wife as a detailed list of items and value assigned to each item. The husband did not present any alternative value.
[56] The value of the garage/workshop items is determined to be $15,000. Again, the wife presented a list of items taken by the husband from the home. Each item was meticulously recorded with corresponding estimated value. The wife described her efforts to find a value which included searching the internet and the court accepts her values. The husband did not provide any evidence regarding the items or values.
[57] The 2006 Honda Odyssey is valued at $7,495 as produced by the wife in her materials from a brief internet search. The husband did not produce any value or estimate other than his oral testimony.
[58] The 1999 Oldsmobile Intrigue in the possession of the wife is estimated at the value of $1020 as per the estimate provided by the wife. The husband did not provide evidence of a value.
[59] The utility trailer is valued at $800 as per the wife’s appraisal. The husband did not provide a value.
[60] The husband’s 1956 Chevrolet pick-up truck was initially valued by the wife at $5500 and originally parked at the husband’s brother’ home. It was picked up by the parties’ son who did work on it. Both parties agreed that Braden restored the vehicle in an attempt to turn the vehicle to one of value. The son is in control and possession of it at this time.
[61] I accept the wife’s evidence that currently it is in a state of disassembly. The husband acknowledges that his son removed it and worked on it. It came under the control and possession of Braeden. It has been 7 years since separation and no value has been presented to the court regarding this asset. The husband’s evidence that the son sold the vehicle for $5000 on Facebook without his permission has no confirmatory documentary or viva voce evidence. The court assigns no value to this asset.
[62] The two snow blowers in the possession of the wife are valued at $200 and $100. The court received only evidence from the wife and the court accepts those values.
3. Accounts and Investments
[63] The husband owned a LIRA at the date of separation valued at $55,982 derived from his pension payout from National Defence. He also had an RRSP valued at $4253.00.
[64] At the time of separation, the husband owned a life insurance policy with a cash surrender value of $11,742.84 that was cashed out after separation to pay for expenses.
[65] The main issue regarding the wife’s bank accounts is whether the wife is entitled to a deduction for excluded property.
[66] Section 4(2)1. of the Family Law Act defines excluded property as follows: “1.Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.”
[67] The wife is claiming that the following accounts are excluded property within the meaning of the Family Law Act.
$11,496.88 RBC Day to Day Banking Joint Account #5058508 (includes inheritance from maternal grandmother for Carissa);
[68] On the date of separation, the account balance of $1496.88 from the accumulation of baby bonus and $10,000 received by Carissa from the January 1, 2015, inheritance from her maternal grandmother.
[69] The court accepts that this account was originally set up from baby bonus payments received by the wife and that the parties had agreed that this account would benefit Carissa.
[70] The account was the parties’ joint account and not set up as a trust account.
[71] The parties did utilize this account as a flow through for payments of credit card payments when offers from other credit card companies with attractive interest rates were made to pay off the balance. For example, on February 27, 2014, the parties paid the Visa balance of $8,520.99 using this account and in June 2014 there was a flow through payment of $6,966.59.
[72] Both parties agreed that the parties would move the balance from one credit card to another credit card using this bank account. Credit card balances would accrue due to extraordinary expenses such as dental costs and car repairs.
[73] The wife would monitor the deposits and withdrawals to ensure that Carissa’s funds remained intact.
[74] The wife admitted to changing this account to a sole account after separation.
[75] Firstly, this account should not be categorized as excluded property as the inheritance was received by Carissa, not the wife as required under s.4(2) of the Family Law Act.
[76] I find that the maternal grandmother, even though it was not indicated in her last will and testament, intended to provide an inheritance to each of the grandchildren in the amount of $10,000.
[77] I accept the wife’s evidence that this was the maternal grandmother’s wish that the children be able to use it for the down payment for a home.
[78] I find that the source of $10,000 of the balance in the account was the maternal grandmother’s estate.
[79] However, in my view this account was set up by the parents for the benefit of the children.
[80] The parties obtained a return of the principal from the original investment set up for education. The balance remaining at the date of separation was used by Carissa and in my view does not belong to the parents even though they were joint owners.
[81] Although it was not set up as a trust account, the evidence indicates that the monies were earmarked for the benefit of Carissa. The fact that the parties used the account to take advantage of credit card offers does not derogate from the objective of this account.
[82] The fact that the account was used after separation for Carissa towards the purchase of a vehicle, is indicative of the parties’ intention that the monies belonged to Carissa.
[83] Therefore, this account will not form part of the net family property
$13,772.58 – RBC Day to Day Savings Joint Bank Account 5099296 (includes inheritance from maternal grandmother for Braeden)
[84] This account has the same history as Carissa’s account as described above. The account is not excluded property as the inheritance was received by Braeden, not the wife.
[85] The same findings apply to this account, i.e. set up with baby bonus payments, received inheritance monies from his maternal grandmother, monies used to benefit Braden and purchase of a vehicle through this account.
[86] The husband acquiesced to the handling of this money by the wife for the benefit of Braeden.
[87] This account will not form part of the net family property.
$26,358.95 – RBC US High interest e Savings Joint Bank Account 4506283 (inheritance from DEP for Connie)
[88] The question for determination is:
Is the wife permitted to deduct this asset as excluded property as the account is in joint names and was used for family purposes?
[89] The RBC US high interest e Savings ---6283 was created when the mother’s aunt in California passed away. It was made joint as suggested by the wife’s father so that if something happened to the wife, the husband could manage the account. It was an inheritance and not used by the husband and it was placed in joint’s name solely for the purpose of ensuring succession in the event of the passing of the wife. The husband never managed the account, deposited money nor used the funds. The account was clearly created with funds from the aunt’s estate.
[90] The evidence indicates:
The wife controlled the account but she controlled all the finances of the family;
The husband did not deposit nor withdraw funds;
The account was used on a least one occasion for family purposes to fund a trip to Disneyworld; and
It remained as a joint account throughout the marriage and at the date of separation.
[91] Firstly, I find that the evidence confirms that this bank account, which was originally only in the wife’s name, was set up for the deposit of the wife’s inheritance from the estate of her aunt who resided in California. The account contained U.S. funds.
[92] To ensure the right of survivorship, the wife added the husband’s name to this account.
[93] Section 14 of the Family Law Act reads:
14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and
(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). R.S.O. 1990, c. F.3, s. 14; 2005, c. 5, s. 27 (3).
[94] There is a presumption of resulting trust when a spouse transfers property into joint names for no consideration, that is, that the parties hold the asset for the benefit of the wife.
[95] The husband may rebut that presumption by discharging the onus that these funds were a gift to him.
[96] For the reasons that follow, I find that the husband has not satisfied the onus that the wife intended to gift the husband with ½ of this account when the account was placed in joint names.
[97] In the recent case of MacIntyre v. Winter, 2021 ONCA 516, 158 O.R. (3d) 516, the Ontario Court of Appeal referred to the leading case:
[17] The leading decision on the subject of gifting is Pecore v. Pecore, 2007 SCC 17, 2007 SCC 1617, [2007] 1 S.C.R. 795. In that decision, Rothstein J. confirmed that two presumptions, that is, the presumption of a resulting trust and the presumption of advancement, continue to have a role to play in disputes over gratuitous transfers. He said that the presumptions “provide a guide for courts in resolving disputes over transfers where evidence as to the transferor's intent in making the transfer is unavailable or unpersuasive”: at para. 23.
[18] The presumption of advancement does not apply in this case. Neither party suggests that it does. Rather, it is the presumption of a resulting trust that is in play. With respect to that presumption, Rothstein J. said, at para. 24:
The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. This is so because equity presumes bargains, not gifts. [Citations omitted.]
[98] Therefore, the husband must rebut the presumption on the civil standard of a balance of probabilities. In other words the husband must establish, on a balance of probabilities, that it was the wife’s intention to gift these monies in the bank account: Pecore, at para. 43. The standard of proof on a balance of probabilities requires “clear, convincing and cogent” evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.
[99] The court accepts that it was the wife’s intention not to gift but merely to ensure right of survivorship of an account with US dollars to protect the inheritance. This had been recommended by the wife’s father to the wife.
[100] The husband acknowledges that, although his name was on the account, he allowed the wife to control this account. He did not deposit funds nor withdraw funds. This evidence corroborates the wife’s evidence that the parties knew that her intention was that this account remained hers and half of the account was not gifted to the husband.
[101] The intention is also supported by the fact that the husband did not list this joint account on his mortgage application for the purchase of his current home.
[102] Also, the right of survivorship intent does not necessarily mean there is an intention to gift.
[103] In MacIntyre, the Ontario Court of Appeal stated:
[33] The point that a right of survivorship alone is not sufficient to rebut the presumption of a resulting trust that operates during the parties’ joint lives is clearly made in Mark Gillen, Lionel Smith & Donovan W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012), at § 10.II.B.2 (WL):
If A supplies the purchase money and conveyance is taken in the joint names of A and B, B during the joint lives will hold his interest for A; B will also hold his right of survivorship—again by way of a resulting trust—for A's estate, because that right is merely one aspect of B's interest. In other words, the starting point is that B holds all of his interest on resulting trust for A, or A's estate. However, evidence may show that, while A intended B to hold his interest for A during the joint lives, it was also A's intention that, should he (A) predecease, B should take the benefit of the property. The presumption of resulting trust would then be partially rebutted, in relation to the situation that has arisen, so that B would not hold his interest (now a sole interest and not a joint tenancy) on resulting trust. He would hold it for his own benefit. [Footnote omitted.] [Emphasis added.]
[104] To assert an “immediate gift” of the “beneficial ownership” of the funds in that account set up from the estate of the wife’s aunt, the husband must rebut the presumption of resulting trust by proffering evidence to support his claim. See: Pecore, at para. 41.
[105] The husband has failed to establish that the wife intended to make a gift of the funds without consideration or expectation of remuneration. He has not lead clear, convincing and cogent evidence to rebut the presumption of a resulting trust.
[106] In Rogers, the court did not permit the exclusion as the gift/inheritance was comingled with other family money. This is not the case here as the wife specifically opened a new account to deposit the funds from her aunt’s estate. There was no comingling of family money with the inherited money.
[107] In Coletta v. Coletta, 1993 CanLII 16125, the Ontario Court of Appeal allowed the wife to deduct only half of the bank account plus interest as excluded property as she had deposited the inheritance monies into a joint account used by him and his spouse. Again the wife opened a new account to deposit the inheritance but later it became joint property.
[108] In Cortina v. Cortina, 2015 ONCA 750, the Ontario Court of Appeal stated that the fact that inter vivos gifts and inheritance given to the husband by his mother or her estate were temporarily placed in the family’s joint account did not cause the funds to lose their character as gifts solely to the husband, where the presumption of a gift was rebutted by the evidence. It was clear that the monies were intended for the husband only.
[109] Finally, the next question is whether the wife’s use of the funds to pay for a Disney World family vacation results in the loss of the claim for excluded property?
[110] The court finds that the mere fact that monies were spent on a family vacation does not mean it loses its exclusion. It merely diminishes the balance remaining in the account at the date of separation.
$62,753.82- NNNBC Chequing sole bank account 08-139-00 (inheritance from maternal grandmother).
[111] There is clear evidence that the source of the funds in this account were from the wife’s mother’s estate. It remained in her sole name, was not commingled with other joint funds. This account meets the definition of excluded property under the Family Law Act.
Other bank accounts/investments
Joint National Bank of Canada –698
[112] The bank statement indicates that there was $6,889.62 which the parties have shown that the wife had the use of the funds after separation but did pay the husband’s SunLife premiums.
[113] It was a joint account which was used to pay household expenses and their pay cheques were deposited in this account. The husband did not have a bank card but received an allowance from the wife for expenses. This forms part of the net family property statement.
[114] The maternal grandmother was on this account until her death.
RRSP RBC- Spousal (including transfer from NBC and Canada Savings Bond RRSP) –6534 = $3772.61.
[115] RRSP – Canada Savings Bonds $868.76 in wife’s possession and control at the date of separation and used exclusively by her.
[116] Stocks with Joint RBC direct investing ---2449 valued at $5110.65 divided equally and account closed.
[117] The husband’s LIFA with SunLife was $61,874 as per the statement filed as an exhibit.
[118] The husband’s RRSP was $4253 as per the statement filed as an exhibit.
[119] The husband’s SunLife enhanced whole life policy documents shows that it had a cash surrender value of $11,742.84 at the date of separation.
[120] The parties respective businesses were not assigned any values.
4. Debts
[121] The husband’s credit card debt with RBC Platinum was $4,079.
[122] He also had a Canadian Tire credit card debt of $5,674 at date of separation of $5,883 which is now $9,000 and is being pursued by the creditor. The court establishes that he was the card holder and responsible for the debt. The wife was a secondary card holder but not the primary holder and is not liable on the debt.
[123] The husband is entitled to disposition costs on the LIRA and RRSP. The only evidence led by the parties is the husband’s use of the tax rate of 20%. The court heard no other evidence on this issue nor were experts called. The court accepts these disposition costs.
Conclusion:
[124] Therefore the net family property statement and calculation of equalization payment is represented as follows:
Assets
Husband
Wife
Matrimonial Home
(joint names at date of separation)
$92,500
$92,500
Household goods and Furniture
$4000
Garage/workshop contents
$15000
2006 Honda Odyssey
$7495
1999 Oldsmobile
$1020
Homemade utility trailer
$800
1956 Chevrolet pick-up truck
Little value- son took over control
Jewellery
$4000
2 snow blowers
$300
National Bank of Canada Progress Account (Joint but control taken over by wife after separation)
--7698
$6889.62
RBC – Spousal (includes transfer from NBC and Canada Savings Bonds)
$3772.61
RRSP – Canada Savings Bonds – spousal
$868.76
RBC Dad to day banking (with $10,000 inheritance from maternal grandmother to Carissa) determined to be for the benefit of Carissa and not part of the NFP ----8508
RBC Day to Day Savings (includes $10,000 inheritance from maternal grandmother to Braeden)
Determined to be for the benefit of Braeden and not part of the NFP ---9296
RBC US High Interest Savings (source is from wife’s inheritance from American aunt) ---6283
Although Joint account, controlled by wife and transferred to the wife’s sole account after separation
$26,358.95
NBC sole chequing account – wife received inheritance from her mother
$62,753.82
LIRA - SunLife
$61,874.00
RRSP
$4253.00
SunLife Enhanced Whole Life policy Cash surrender value
$11,742.84
Total value of Assets
$193,664.84
$202,463.76
Debts/Liabilities
Husband
Wife
RBC Platinum Visa credit card
$4079.00
CTC Mastercard credit card
$5674.00
Disposition costs on LIRA
$12,286.73
Disposition costs on RRSP
$717.00
Total Debts/Liabilities
$22,756.73
Nil
Excluded property
Husband
Wife
Inheritance from wife’s mother deposited to RBC US high interest account
$26,358.95
Inheritance from wife’s aunt deposited into NBC account
$62,753.82
Value of assets minus debts/liabilities minus excluded property =Net family property
$170,908.11
$113,350.99
Equalization payment
Husband owes wife equalization payment of $28,778.56
Wife owes payment of $92,500 to represent the husband’s interest in the matrimonial home
$92,500 - $28,778.56 = $63,721.44
Section. 7 Expenses
[125] The wife is requesting that the husband pay his share of Carissa’sfifth and sixth year post-secondary education by paying one half of her outstanding OSAP loan. The wife agrees to pay the other half.
[126] Carissa covered the costs of groceries, entertainment, cell phone and car insurance in her first 4 years of post-secondary educational program.
[127] The parents covered the rental costs and the wife helped with groceries and transportation.
[128] Carissa took an extra year to complete her four-year university education.
[129] Carissa has suffered from major depressive disorder since 2020. After she completed her university degree, she took a two-year college program for 45 weeks (less than one year) which represents year six of her post-secondary education.
[130] The husband was not aware of this as he did not communicate with his daughter. He was not consulted regarding her pursuing the practical aspect of health sciences at college. This course which would enable her to use digital software when dealing with medical records.
[131] There was no discussion and he learned about this claim in the wife’s answer.
[132] The wife had very little earnings and was not able to assist Carissa. Carissa used her savings from employment and OSAP loans/grants.
[133] The husband acknowledges that Carissa failed her first year and hence had to extend the 4-year program to 5 years.
[134] The first 4 years of her university were as follows: Carissa received a scholarship, used some of her earnings and the RESP. The parents paid her rent/residence for the first 4 years.
[135] The wife is claiming that the husband should contribute for those 2 years and would have known she attended college after obtaining her university degree if he communicated with her.
[136] The wife produced a spreadsheet setting out the cost of education with a detailed list including tuition, books, living expenses.
[137] In determining whether the court will award s. 7 expenses the court must determine if the expense is necessary in relation to the child’s best interests and reasonable in light of the parties’ respective means and those of the child and the family’s spending pattern before the separation.
[138] Expenses for post-secondary education falls within s. 7(e) of the Federal Child Support Guidelines.
[139] In Lewi v. Lewi, 2006 CanLII 15446 (ON CA), [2006] O.J. No. 1847 the Ontario Court of Appeal stated that when children over the age of majority attend post-secondary educational the court must consider whether the child is able to contribute to her own post-secondary expenses. The level of contribution by the child is within the discretion of the trial judge. Under s. 3(2)(b), if the court determines that the guideline amount is not inappropriate:
Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[140] The Ontario Court of Appeal held that a child is not obliged to use all of their capital assets to contribute to their education. The means of the child and the parents must be considered.
[141] The Lewi case stated that the court must consider whether a child of majority age is able to contribute to his or her post-secondary expenses. Section 3(2)(b) requires the court to have regard to the "means" of the child. Both capital and income are encompassed by the term "means". The motion judge erred in failing to require the children to contribute to their post-secondary expenses out of their capital. The court, in order to exercise its discretion properly under either s. 3(2)(b) or s. 7, when parties dispute the amount of contribution expected of a child, requires the same kind of information regarding the needs of the child and the means of the child and parents. Nor would the contribution the child is expected to make and the support the parent is obliged to provide necessarily be different under the two provisions. There is nothing in the Guidelines that implies that children of majority age with capital assets should be required to contribute all of their assets towards their post- secondary education before their parents are called upon to provide support or that such children should not have to make any contribution out of capital. [page 322] There is no greater expectation for the child's contribution under s. 7 than under s. 3(2)(b). The amount of child support that a parent is ordered to pay should be determined, as a general rule, on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. As the motion judge did not consider the extent to which the children should be expected to contribute to their own education expenses out of their capital assets, her disposition could not stand.
[142] For the relevant years, Carissa’s Line 150 income was:
2014: $15,647.65
2015: $12,465
2016: $12,076
[143] She was earning income that she used for her education in addition to loan and scholarships. Her parents assisted in her years 1 to 4.
[144] She received $41,032 in loans and $4,790 in grants.
[145] Due to the lack of assistance in years 5 and 6 from her parents, she continued to accumulate a loan with OSAP. The amount currently outstanding in OSAP loans is $26,325.75.
[146] The court also finds that her post-secondary educational plan was reasonable and completed at a fair pace given her personal circumstances. Carissa was required to complete an extra year of university to attain her degree. The court finds that her college course that she attended in a condensed fashion was also a reasonable course of action as it provided her with hands-on skills and practical training.
[147] The court finds that Carissa’s university expenses as outlined in the wife’s spreadsheet are s. 7 expenses. The court finds that Carissa’s contributions through her earnings and grants and payments towards her loans represent a fair and reasonable contribution towards her own education.
[148] The parents are required to contribute to years 5 and 6 of Carissa’s post-secondary education. Carissa was able to reduce the amount of her total OSAP loan due to her own diligence and commitment. The parents are in a position financially to assist. In the relevant years, they had an income and each of them has assets and investments.
[149] Having considered the parties’ circumstances and ability to pay, the court orders each parent to pay one half of the OSAP loan to fulfil their obligations to Carissa’s completion of her post-secondary education.
[150] These payments must be paid within 60 days from the date of this decision.
Is the wife entitled to spousal support?
Introduction
[151] The starting point is s.15.2(1) of the Divorce Act which sets out the court’s jurisdiction to make a final 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.
[152] Subsection 15.2(4) directs the court to take into consideration the “condition, means, needs and other circumstances of each spouse”. It reads as follows:
(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.
(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.
(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.
[153] These statutory objectives must be considered when the court considers entitlement, quantum, and duration of spousal support.
[154] In the leading Supreme Court of Canada decisions of 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, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.
[155] In Bracklow, at para. 23, the court emphasized the needs-based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.
[156] On the other hand, the compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Compensatory support recognizes sacrifices, contributions, and benefits of the parties during their interconnected economic lives.
[157] Moge and Bracklow set out the following examples of compensatory support:
a) A spouse's education, career development or earning potential have been impeded as a result of the marriage because, for example:
a. A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;
b. A spouse's education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;
c. A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;
b) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
The SSAG set out following examples of economic disadvantage:
Home with children full-time or part-time
Secondary earner
Primary caregiver of the children after separation
Moving for payor’s career
Support for payor’s education or training
Working in family business
One needs to ask where the recipient would be if he or she continued in the labour market, not where he or she was years ago.
[158] At para. 32 of Bracklow, the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence”. The Court stated that marriage is an “economic partnership” based on mutual support. The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court”.
[159] At para. 40 of Bracklow, the Supreme Court stated that “Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown”. The Court states that the legislation requires a consideration of the parties’ financial positions “not just those related to compensation”. The provisions of the Divorce Act require the court to consider the “condition, means, needs and other circumstances of each spouse”. “…they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application”.
[160] Therefore, all of the statutory objectives set out in (6) must be considered as no one objective is paramount, but the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances: see Bracklow and Moge.
[161] In Moge, at p. 870, the court stated that “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”.
Analysis
Background
[162] A brief history of the marriage, its breakdown and the current circumstances will inform the court’s analysis in concluding that the wife is entitled to spousal support based primarily on need but there is also a compensatory element to her entitlement.
[163] Briefly, the wife’s work and education history are as follows:
a. She started studying securities;
b. Obtained a temporary placement with a dress shop to fill a 7 month maternity leave;
c. She received a business studies certificate at Algonquin; This course enabled the wife to learn skills;
d. After Carissa’s maternity leave, her job had changed so she could not return to work;
e. The wife had an Avon business which she closed in 2014;
f. In 2011, she worked briefly at a law firm in Pembroke in 2011; and
g. She worked full time at another law firm in Pembroke from 2011 to 2020 when she had to leave due to illness.
[164] Carissa returned home in June 2021. She suffers from anxiety and took medication and therapy in the past. Carissa completed a digital health college course which involves digital programming medical software and is a practical program. – husband was not aware as he did not keep in touch with Carissa. It was a two year program condensed into 45 weeks.
[165] The wife acquired work skills by working at local law firms and is only unemployed at this time due to her illness.
[166] In this case, the wife is unemployed and finds herself after a 29 year marriage on disability income. Certainly she has a need and her spousal support is based in part on her need. However, her need is tempered by the fact that she has received substantial inheritances that put her assets value at approximately $1 million once she receives her inheritance from her father’s estate.
[167] The wife is not expected to liquidate all her assets to live but it is reasonable to impute a return on investment from her investments as part of her income.
Discussion
[168] This court finds that the wife’s entitlement is based on need, as the support obligation arises from the marriage relationship itself as the wife is unable to become self-sufficient. Under this model, spousal support is based on economic hardship resulting from the breakdown of the marriage.
[169] The court has considered:
The wife was a secondary earner throughout the marriage;
Although she had various jobs and contributed financially to the family, the husband was the primary bread winner;
The husband was able to gain experience and skills in his trade and is now in a position where he has his own business with his own established clientele;
Although she worked during the marriage, the wife did take on more of the household management and caring for the children whereas the husband worked continuously during the marriage;
During the marriage, the husband also had a side business where he would complete small renovation projects which would have taken him away from the home;
In contrast, the wife has recently been diagnosed with cancer and is in receipt of CPP disability payments;
The wife has, through good fortune of being the legatee of a number of family members’ estates, received sizeable inheritances that will be able to generate rental and investment income for her;
However, she is currently unemployed and has no work prospects at this time due to her disability;
The marriage was a long term marriage and hence the parties should be able to enjoy comparable standards of living;
As will be discussed below, at this time, the husband earns more than the wife and spousal support is payable; and
The wife is not expected to liquidate her assets and encroach on capital to meet her living expenses.
[170] The court finds that the wife’s claim for spousal support is also grounded on compensatory principles.
[171] Ccompensatory support is based on the principle that a marriage is a joint endeavor and aims to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the marriage. It is concerned with an equitable sharing of the benefits of the marriage.
[172] The court will examine the advantages and disadvantages the parties experienced and the roles assumed during the marriage:
In 2003, the husband obtained his red seal certificate in sheet metal work and benefited from this education;
With this education, the husband was able to work in sheet metal with a company until 2015 and then continued to use his skills that has brought him to a point in his career where he operates his own business and has a growing clientele;
Given the wife taking over the lion’s share of the household and child care management, the husband was able to continue to use his acquired skills and have a side business;
The wife was working part time and did work full time during the later years of the marriage to a point where she was a valuable employee at a local Pembroke law firm;
Therefore, the wife through education during the marriage was able to acquire skills that enabled her to obtain a bookkeeping job at a law firm where she worked full time for 9 years;
The wife did attain an advantage during the marriage by education; and
She continued to work during the marriage including Avon and at law firms.
[173] The wife’s receipt of inheritances has assisted her financial situation but does not absolve the husband from his obligation to pay spousal support.
[174] In terms of assets, the wife is in a good position and in fact a better position than the husband.
[175] The mortgage on the matrimonial home was discharged in 2014 and she now has a rental property from one of her inheritances that generates rental income. The court finds that the wife is maximizing her income from that rental property. The wife is very astute in money matters and the detailed presentations of her claims including s. 7 expenses, division of property, bank account entries and her meticulous record keeping indicate that she is a person who is mindful of every dollar and accounts for all accruals and expenditures in any of her assets. In my view, the court finds that there is no evidence that would require the court to impute more rental income to the wife.
[176] She has been unemployed since March 23, 2020 as a result of a cancer diagnosis. She now receives CPP disability of $1,000 per month and $387 net rental income. Her course of treatment in the next 6 months will determine if side effects are relieved from radiation and chemotherapy. She cannot commit to work full time employment as she is immune compromised and exhausted.
[177] There was no significant advantage borne by the husband as he did not accumulate significant assets or skills or career advancement to the detriment of the wife.
[178] Therefore, I find that the wife is entitled to spousal support on largely on a need’s basis with some compensatory elements.
Retroactive Spousal Support
Legal Principles
[179] In Kerr v. Baranow, 2011 SCC 10, the Supreme Court of Canada set out following principles for retroactive spousal support:
D.B.S. factors apply as modified for spousal support (circumstances of the spouse are relevant as opposed to circumstances of the child).
Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.
The failure to bring a temporary motion should not be penalized, as we should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case where the claimant moves the matter quickly to trial after obtaining disclosure.
At para. 208 the court states: “Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support”.
At para. 212, the court states that “D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.”
[180] Regarding tax issues, the court must discount the award based on the payor’s inability to deduct it. In Charron v. Carrière, 2016 ONSC 7523, 86 R.F.L. (7th) 108, the court netted down the retroactive support award by the mid-point of the parties’ respective tax rates.
[181] In accordance with the Court of Appeal’s observations in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65,it is reasonable to apply a deduction to this amount to account for the tax consequences of the retroactive payment. In Fatahi-Ghandehari v. Wilson, 2021 ONSC 3547, the court applied a 20% rate where the payor reported low income and the recipient no income.
[182] Firstly, the wife provided notice in her answer in 2015 and hence the husband had formal notice of her claim shortly after the separation. There was no delay on the part of the wife in advising the husband of her intent to seek spousal support.
[183] Secondly, the circumstances of the wife are such that she was employed at the time of separation and worked until 2020. She was also managing the administration of her father’s estate for 4 years which resulted in a sizeable payment of over $320,000 in 2021.
[184] She has no debt and after the separation, she received sizeable inheritances from her aunt and mother’s estate to the point where her assets will approach the $1 million mark upon the receipt of her inheritance from her father’s estate.
[185] Thirdly, regarding the husband’s conduct, he did assist with Carissa’s education for the first 4 years of her post-secondary degree. He did not pay expenses on the matrimonial home nor did he pay spousal support. There were no interim support motions or agreeements. However, the court notes that he was dismissed from his employment shortly after separation and then built up his sheet metal business with his common law wife.
[186] The court finds that his conduct was not blameworthy to the extent that it favours a retroactive spousal support.
[187] Regarding hardship, the husband’s income is greater than the wife’s at this point. This will be discussed in more detail below.
[188] Her debts do not seem to have significantly increased since separation.
[189] Also, her assets increased significantly due to the substantial income she earned in 2021 as executor of her father’s estate.
[190] She worked for this income for 4 years and hence was entitled to an unusually high estate trustee compensation.
[191] The hardship that may have been suffered by the wife is reflective on her not being able to assist Carissa in years 5 and 6.
[192] On the other hand, the husband’s income decreased after he left Oakridge but as discussed below with adding back the accounting entry and the benefit he receives from having his company pay for some of his personal household expenses, his income of $50,000 is approximately where he was when he left Oakridge.
[193] His assets are significantly less than the wife’s
[194] If retroactive support was ordered, it would likely be paid from his equalization payment
[195] The husband has a home that he bought in 2015 with his partner for $184,000 with a mortgage.
[196] His former colleague at Oakridge and friend Tom Spooner suggested he start a business. Although Mr. Spooner was an equal partner, he only receives 1% of the profits in accordance with his accountant’s advice. (49.5% FOR EACH) He built his business through social platforms like Facebook, Kijiji and opened a website and had customers from Oakridge and has received some random calls
[197] There was a setback due to the pandemic in 2020 and 2021.
[198] He did have a small side business in 1997 and was doing side jobs like decking and landscaping
[199] Mr. Spooner contributed $5k and helped with the set up and getting the equipment and would help out periodically. They have regular meetings and the day to day operations with husband and his partner who runs the office and completes the bookkeeping
[200] The business was incorporated in 2021 to create a separate entity and the 3 directors are Mr. Spooner, the husband and his common law partner.
[201] On the other hand, the wife has significant assets in comparison to him. He has a mortgaged house, a workshop in his garage no recreational property and a Pathfinder vehicle.
[202] This inheritance has tipped the balance in favour of the wife in terms of financial stability.
[203] This is not a case for retroactive spousal support.
[204] Therefore, the wife’s claim for retroactive spousal support is dismissed.
Ongoing Spousal support
[205] Nevertheless, ongoing support is payable. There is a disparity of incomes and in the foreseeable future the wife will be in receipt of CPP disability payments. If her health improves and she is returns to work, then this could be considered a material change of circumstances that might require a variation of ongoing spousal support.
[206] I impute the husband’s income to be $50,797 which includes the income for 40% of the household expenses are paid by the business and the adding back of the accounting paper entry set out in his 2021 tax return.
[207] I decline to impute income of $53,000 plus the annual increase of cost of living as submitted by the wife. Firstly, the imputed income made by the court is where he is in the approximately in the same position as he was in terms of income when he left Oakridge in 2015. He has potential of earning more income, and the court does not find he is underemployed. The wife has failed to satisfy the court that he could be earning $53,000 per year.
[208] Nor am I prepared to impute income to $70,000 as there is no evidence that the $20,000 grant (which represents the retained earnings and undistributed income) will recur. It appears that the company received a small business support grant of $20,000 in 2021.
[209] There was no evidence if this grant will be repeated or was COVID related as a government support of small businesses.
[210] Therefore his income will be imputed to be $50,797.39.
[211] The wife’s income is increased to account for monies she could earn from her investments
and the wife's income is set at $33,581.
[212] The court orders that spousal support will be paid in the mid- range area of spousal support: that is: $600 per month. Given the above findings that considers the parties’ respective financial positions, ongoing income and expenses, the court finds that the mid-range support will meet the objectives of the Divorce Act and allows the wife another source of income to maintain a reasonable lifestyle.
[213] This is a long-term marriage and support should be paid indefinitely and can be varied upon a material change of circumstances.
[214] In my view, this is not a case for a lump sum payment. As stated in Davis v. Crawford, 2011 ONCA 294, the court should restrict the awarding of spousal support lump sum to cases where for example, there is a significant risk that the husband will not pay support, or the wife has incurred significant debts and a lump sum would assist her or the wife requires a lump sum for a form of retraining or educational plan. Also, a lump sum order can be made to relieve against financial hardship. These factors do not apply in this case.
[215] An important consideration in determining whether to make a lump sum spousal support award is whether the payor has the ability to make a lump sum payment without undermining the payor's future self-sufficiency. 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 disadvantages.
[216] None of these scenarios exists here. This is not a case for a lump sum.
[217] However, the parties agreed that once the court determined the ongoing periodic sum the parties were at liberty to negotiate and settle whether the husband will pay the wife a lump sum instead.
[218] If there has been a material mathematical error in my calculations above and the parties are unable to resolve the issue, the parties may arrange a hearing before me through the trial coordinator’s office.
[219] There has been divided success and I am not inclined to award costs. However, if the parties wish to pursue costs and are unable to agree, then the husband may provide his two-page costs submissions with any offers to settle and bill of costs by June 17, 2022. The wife may provide her two-page costs submissions with any offers to settle and bill of costs by July 4, 2022. The husband may file a one- page reply by July 11, 2022.
Justice A. Doyle
Released: June 2022