Cui v. Liwanpo, 2022 ONSC 4549

COURT FILE NO.: 9808/12

DATE: 2022-08-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WEI XIU (CATHERINE) CUI

Applicant

– and –

PAUL LIWANPO

Respondent

Mark Simpson, for the Applicant

Norman Pizzale, for the Respondent

HEARD: December 13, 14, 15, 16 and 17, 2021 by videoconference; written argument completed March 1, 2022

HEENEY J.:

1The evidentiary portion of this trial was, with the consent of the parties, completed in five days, and then adjourned for written argument. Counsel have now filed a total of 176 pages of written argument, and four volumes of caselaw. The documents filed as exhibits on Caselines during the trial number well over 8,000 pages. The parties disagree on almost everything, so that credibility findings will be an important aspect of these reasons, as discussed below. I do not propose to deal with all of the evidence heard and filed, nor with every dispute that has been raised between the parties. Rather, I will confine myself to the evidence that is relevant to the central issues in this case.

2This action was commenced by an Application dated November 14, 2012, which has since been amended. The parties have been litigating this case for almost 10 years since then, which is close to double the 6.5-year duration of the marriage itself. The application was made under the Divorce Act, and a divorce was granted on April 29, 2016, leaving the corollary issues to be resolved later. That time has now arrived.

3I should note that the Reply Submissions of the applicant were served well beyond their due date, and included a great deal of argument that should have been part of the applicant’s initial submissions. She has also sought leave to present fresh evidence on certain issues, and then proceeded to outline that evidence in her submissions, without any leave having been granted. That is entirely improper. If the applicant had a legitimate basis for introducing fresh evidence, she should have brought a motion seeking leave to do so, on notice to the respondent, before introducing that evidence. It is my intention to completely disregard this fresh evidence.

4The issues to be resolved are:

• Equalization of net family property, which includes a determination as to the valuation date (“v-day”), since the parties cannot agree on the date of separation. It also includes resolution of the valuation of many of the items in the Net Family Property (“NFP”) Statement where the parties disagree;

• Post v-day adjustments, including the respondent’s claim for reimbursement of funds allegedly wrongfully withdrawn by the applicant, an accounting of rental revenues from the jointly-owned Florida properties, and the applicant’s claim for rent arrears on her Hamilton Road property;

• Whether the applicant’s son Ryan was a “child of the marriage”, and if so a determination of the respondent’s obligation to pay retroactive child support;

• The applicant’s claim for spousal support, both ongoing and retroactive, and the respondent’s claim for reimbursement of interim spousal support that he has allegedly overpaid;

• The respondent’s claim for damages for water damage caused to the matrimonial home, arising from the alleged negligence and/or wilful conduct of the applicant in vacating the matrimonial home in the middle of the winter without notice, and turning off the furnaces when she left, causing the pipes to freeze and burst, which flooded the house;

• The respondent’s claim for damages to his office computer equipment allegedly caused by the applicant; and,

• The respondent’s claim for punitive damages.

OVERVIEW:

Overview

5This was a second marriage for both parties. The applicant was born in 1959 and is currently 63. The respondent was born in 1947 and is currently 75. They met online in or about 2004, while the applicant was living in Singapore. She came to Canada in October of 2005 to reside with the respondent, and they were married on December 28, 2005.

6The applicant has a son from her prior marriage, Ryan Ong, born June 19, 1995. He is now 27 years of age. He was living with his father and step-mother in Singapore when the applicant relocated to Canada in 2005, but came to Canada 3 years later, in circumstances which will be discussed below.

7The respondent is a medical doctor, who practiced as a specialist in the field of internal medicine throughout his career. He retired in February 2020.

8The applicant testified that she had been operating a business at the time of the marriage, the precise nature of which was not clearly explained by her in evidence, but which appears to have involved recruiting students in China to study at universities abroad, and particularly in Africa. She also claims to have been operating a shipping business of some sort. She claimed at one point in her evidence to have been earning between US$1 and $1.5 million per year from her business before she came to Canada, although she said at another point said it was about US$500,000 per year. The respondent, on the other hand, maintains that she was unemployed when he met her before she came to Canada, had very little income, lived in a modest apartment in Singapore, and brought virtually nothing of value with her when she relocated to Canada.

9During the marriage the parties acquired several properties in Florida in joint names, which are the subject-matter of some of the claims in this case. The applicant also acquired a property on Hamilton Rd. in London, which was supposed to be used as a satellite London office for the respondent’s medical practice, his primary office being in Tillsonburg. His attendance at that office ceased completely after he was charged with assaulting the applicant and was bound by terms of a recognizance to stay away from that building, charges which were ultimately dismissed by the court. The applicant is claiming the sum of $901,176 in unpaid rent for 5 years from 2012 forward, along with money she claims to be entitled to under a clinician agreement.

10The parties separated in 2012, although they disagree on the precise date. The applicant claims that they separated on July 29, 2012, after she saw him come out of a hotel with a stripper named Kayla. She sent him an email that same day, which said “As per our discussion on July 29 at 10 am at home. We will be further discussing the details of our divorce. All financial transactions after July 29 is (sic) not valid. Thanks.”

11The respondent acknowledges receiving that email, but not on that day. He maintains that their relationship continued as before following the email, and puts the date of separation at August 21, 2012. On that day the police showed up at his medical clinic, and arrested him for allegedly assaulting the applicant. He was kept in jail overnight, and released on a recognizance the next day. He was ultimately acquitted of the charge. He states that the parties never cohabited after that date.

12That completes my overview of the case. Additional relevant facts will be discussed as I deal with each of the issues to be resolved.

CREDIBILITY:

Credibility

13As noted above, the parties disagree on many things, and in most cases there is nothing to prove either version except the unsupported word of each party. Accordingly, credibility is central to this case.

14The respondent was a solid witness. He was respectful to counsel and to the court, and responded to all questions put to him on cross-examination in a thoughtful and helpful manner. He was not evasive at any point, and appeared to be doing his best to provide complete answers to every question, just as he did in his prior examinations for discovery. He made concessions when appropriate to do so. His testimony was internally consistent, in that he was not directed to anything in his discovery evidence or his prior affidavits that conflicted with his testimony at trial. His testimony was externally consistent with all of the documentary evidence filed. He did make one error, in that he originally stated that he retired in 2019. Once he was directed to other benchmark dates in the case, such as when he retained Mr. Pizzale to represent him, and when the COVID pandemic began, he corrected his error and said he retired in February 2020. His testimony was also objectively reasonable, in that he made no claims or allegations that were, on their face, patently untrue. In short, I found him to be an extremely credible witness.

15The applicant, on the other hand, was a terrible witness. She was argumentative with counsel for the respondent, and tried to evade answering questions on cross-examination that were not helpful to her. She outright refused to answer several questions, even though her counsel was not objecting, and I had to forcefully instruct her on more than one occasion to answer the question. Her behaviour as she gave evidence at trial continued a pattern of evasiveness and obstruction that is evident from the passages in her discovery transcripts that were referred to.

16Her many refusals are outlined in portions from her discovery deemed to have been read into the record by the respondent, found at Caselines (“CL”) B3991-B3994. I will highlight only a few to illustrate her obstructive attitude. Counsel for the respondent was questioning her concerning the source of funds she used to purchase a property on Shore Road in London in 2019. She claimed to have borrowed $800,000 from relatives in China, which she had to repay. There is no mortgage on title to secure such a large debt, and she failed to provide any documentary support for having had funds transferred into her bank account until the eve of trial, leaving counsel for the respondent with no time to conduct further investigation. The RBC account into which these funds were transferred shows Zhou Hong as co-owner of the account. The respondent, during discoveries, refused to answer questions about who Zhou Hong was, and told counsel for the respondent “it is none of your business”. When counsel pursued the issue and asked about a foreign bank account that she supposedly used to transfer funds to herself, she mocked him by saying “I don’t know. You are intelligent. I don’t know but I know something you do not know today.”

17The amount she claims to have borrowed is also a moving target. As noted, she said she said she borrowed $800,000 to purchase Shore Road, but the document she prepared herself shows wire transfers of only $718,000. A document, written in Mandarin and translated into English, states that “Tianjin family agreed to lend money to the youngest sister Weixiu Cui about $900,000 to help her purchasing her own home in Canada”. When she purchased the property she took out a mortgage with Home Trust for $403,095. The purchase price was $952,000, so that she only needed an additional $549,000 to complete the purchase, not $718,000 or $800,000 or $900,000. Furthermore, her sister Weilie Cui signed a document for Home Life certifying that she had made a gift to the applicant of $170,740 to assist her in purchasing the residence, which would further reduce the amount that needed to be borrowed, assuming that the gift document is truthful (an assumption I am reluctant to make).

18She also testified that she would have to repay the money borrowed to purchase Shore Road once the property was sold. However, that property did sell shortly before trial, and nothing was repaid. She then said that her relatives directed her to hold on to the money, and to take care of her nieces and nephews when they come to Canada.

19Her answers to questions concerning these transactions are also patently absurd. At trial, she did state that Zhou Hong was her sister-in-law when she was asked during cross-examination. But when counsel asked her what Zhou Hong did for a living that would enable her to lend over $500,000 to the applicant, she said she didn’t know. When it was pointed out to her that the bank statements from RBC did not identify who the money was coming from, she testified that she didn’t know who she would have to repay, other than that she had to pay “to all my families”, and to her brother and sister. Given the large amounts involved, it is inconceivable that she would not know precisely who she had to repay and in what amount. It is also inconceivable that she would not know how it is that these family members were able to afford such large loans of cash.

20One of the sources of the money supposedly transferred to her was her sister, Weili Cui. She is, according to the applicant, a schoolteacher in China, presumably earning a modest salary, yet was somehow in a position to loan hundreds of thousands in unsecured funds to the applicant, as well as make a gift to her of approximately $170,000. She was identified as a witness for the applicant in the Trial Scheduling Endorsement Form. The endorsement makes it clear that by naming a witness, the party undertakes to make the witness available to the other party without summons even if they decide not to call the witness. Weili Cui did not testify, nor was she made available for cross-examination, and I draw an adverse inference against the applicant regarding any issues where this witness could have offered relevant evidence.

21Her answers regarding where her son Ryan was living are also replete with contradictions. At trial, and during oral questioning that occurred on November 25, 2021, she denied that Ryan lived in the upstairs apartment of the Hamilton Road property at any time from September 2011 to June 2013. This point of evidence is relevant both to her claim that Ryan was a child of the marriage and entitled to child support, as well as to her claim for unpaid rent regarding that property. However, in her Application she made it clear that Ryan began residing there in September 2011. In her affidavit sworn August 19, 2013, she said that Ryan lived in the second floor apartment at the Hamilton Road residence so he could attend school at Western.

22Her description as to her financial picture when she met the respondent is also worthy of specific comment, since it goes to her credibility. As already noted, she claimed to have been earning anywhere from US$500,000 to $1.5 million from her business in China, which she had to give up when she moved to Canada to live with the respondent. However, her Singapore income tax returns for 2002 to 2006 show income at or near the poverty level. When asked about all of the money she said she was earning from her Chinese business, she testified that she had no obligation to file an income tax return or otherwise disclose income earned in China, despite the fact that her Singapore income tax returns clearly have a category for income earned from “Other Countries”.

23Furthermore, she claims to have given this business to her sister and brother when she left for Canada, but they were unable to operate it, so it was closed. Clearly a business generating up to US$1.5 million annually would be worth a considerable amount, so it makes no sense that she would give it away for free, nor does it make sense that her brother and sister would not sell it to someone else, rather than just closing it, if they were unable, due to their teaching duties, to operate it.

24I find her answers on these issues to be patently false.

25The applicant’s obstructionist tendencies are illustrated by the many delays in proceeding with this case caused by the applicant’s actions, as well as what I find to be her use of the criminal law process to attempt to gain an advantage in these proceedings. With respect to delay, she is largely responsible for the fact that it took 9 years from the commencement of the application for this case to reach trial. She ran through a total of approximately 6 lawyers over those years, usually dismissing them just before an event, such as a mediation, which derailed that event and caused further delay. She refused to produce disclosure that was requested by the respondent, resulting in delay and costs orders against her. Oral questioning was set for November 25, 2021, so that questions could be asked concerning late disclosure that had been received, in advance of the trial scheduled to start at the sittings in December, 2021. At the last minute the applicant attempted to adjourn questioning until January, 2022, which would have scuttled the trial date.

26As to the criminal process, she accused the respondent of assaulting her, which resulted in his arrest and detention in jail overnight, which was surely a humiliating thing for a specialist in internal medicine in a small town. He was acquitted of those charges, as he was acquitted of several other accusations later made by the applicant, including that he had breached the terms of his release. I accept the legal authorities relied upon by the applicant, standing for the proposition that the fact that an accused is acquitted of a charge is not evidence that he did not commit the offence, and that different standards of proof apply in a criminal case as opposed to a civil one. However, when charges are repeatedly laid only to be repeatedly thrown out by the court, a pattern does emerge. The respondent testified emphatically that he never, at any time, touched the applicant in an assaultive manner, nor did he breach the terms of his release. I believe him.

27Most recently, the applicant made a complaint to the OPP on December 10, 2021, three days before this trial was scheduled to begin, accusing the respondent of insurance fraud relating to the house flood in March, 2015. This time the police took no action against the respondent. However, the timing of this complaint supports the inference that the applicant was once again attempting to use the criminal law process to her tactical advantage. The house flood took place fully 6 ½ years earlier, which is exactly how long she had to make a complaint to the police against the respondent, if there had been grounds to do so. The fact that she did not do so until three days before trial can lead to no other inference than that she was attempting to use the criminal law process for her own ulterior purposes, which were to scuttle the trial date, and cause further humiliation and inconvenience to the respondent.

28The flood event is another illustration where applicant was caught in a clear and significant contradiction, which directly bears on her credibility. The date that she vacated the matrimonial home is a fact of great importance because, according to the respondent, whose evidence I accept, both furnaces in the house were found to have been turned off when he and the fire department responded to the flood, upon its discovery in March 2015. In her affidavit sworn May 20, 2015, the applicant deposed as follows: “The last time I was at the home was early February.” This coincides with records from Union Gas, showing significant consumption of natural gas through January and early February, 2015, but a complete cessation of all consumption beginning February 11, which lasted until the flood was discovered in mid-March. However, at trial she testified that she vacated the matrimonial home in December, 2014. She had no explanation for this dramatic change in her evidence.

29I am satisfied that she fabricated her testimony at trial, because her prior affidavit inconveniently places her in possession and control of the house until precisely the time when gas consumption abruptly ceased, and when, I infer, both furnaces were turned off.

30These are only some examples, among many, of instances where the applicant was evasive and obstructive, gave conflicting versions of the facts, gave testimony that conflicted with the documentary evidence, and gave testimony that was, on its face, obviously untrue. I find her to be a thoroughly uncredible and unreliable witness. I am satisfied that she is prepared to say whatever will suit her interests in the moment, regardless of whether it is true or not. Where conflicts between the evidence of the applicant and the respondent are found, I prefer the testimony of the respondent.

EQUALIZATION OF NET FAMILY PROPERTY:

Equalization of Net Family Property

31This issue requires the determination of several sub-issues, and I will deal with each in turn.

1. Valuation date

Valuation date

32As already outlined, the parties disagree on the date of separation, with the applicant maintaining it was July 29, 2012, and the respondent maintaining it was August 21, 2012, which is the date the parties actually began living separate and apart following his arrest and detention. Given that only about three weeks separates the two dates, one might wonder why this is an issue at all, since very little would normally change in terms of their net family property during such a short time.

33There is, however, one item that does significantly affect the net family property of the respondent, relating to a withdrawal by the respondent of $80,000 from an investment account after July 29 but before August 21. There were also several withdrawals and purchases on the respondent’s credit card made by the applicant during this period. I agree with the respondent that if the email sent by the applicant is to be taken at its word, and that “all financial transactions after July 29 is not valid”, the applicant certainly did not act in that manner, but instead acted in a manner consistent with someone taking steps to build a nest egg for herself in advance of a formal separation.

34The applicant testified that the parties were using separate bedrooms after July 29, but the respondent testified that this had been the case for several months prior to that. On his testimony, nothing really changed after July 29 from their relationship as it existed in the months leading up to that date. On his evidence, which I accept, there was no change in their relationship until they physically and permanently separated on August 21, 2012.

35Section 4(1) of the Family Law Act provides that the “valuation date” is “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation. In Strobele v. Strobele, [2005] O.J. No. 6312 (S.C.J.), the court outlines a number of considerations to be taken into account in determining the date of separation. The global question is, when was it that the parties knew, or acting reasonably, ought to have known, that their relationship was over and would not resume?

36The triggering factor that the applicant attributes the separation to was her discovery of the respondent coming out of a hotel with a young woman named Kayla. However, the respondent’s infidelity had been going on for quite some time, as far back as 2011. He signed documents agreeing to stay away from Kayla, which provided for monetary penalties if he didn’t. Thus, seeing him with this woman would not necessarily be the “deal breaker” which would lead both parties to know or reasonably ought to know that their relationship was over.

37On the other hand, Strobele makes the point that where one spouse transfers or dissipates assets with the intention of terminating the relationship an earlier valuation date may be in order. As noted, the respondent did transfer $80,000 from his Scotia Securities account ending in 0529 on August 15, 2012. The entry says “PC to 5539876416”. However, there is no account bearing that number disclosed in evidence, nor is there any account where the corresponding receipt of a transfer of $80,000 is recorded to have happened on August 15, 2012. The respondent has no independent recollection of what this transfer is all about, which is not surprising since it occurred so long ago. Furthermore, he had a multitude of investment accounts running into the millions of dollars, involving many transactions each month, so a transaction of this amount, while it would be significant to most people, would not necessarily be memorable to him. His counsel at the time (not current counsel) did not obtain the banking documentation that might have shed light on this issue years ago, when it was available. On the evidence, the bank destroys records after 7 years, so efforts by current counsel to track down the destination of this transfer have been unsuccessful.

38No suggestion was put to the respondent during cross-examination that he transferred this money out of this account with the intention of separating in the near future, so as to hide it from his v-day assets. Indeed, no questions were asked about this issue at all in either the examination-in-chief or cross-examination of the respondent. The issue came up during the examination-in-chief of the applicant, when I asked what the difference in the bottom line was between using a v-day of July 29 and August 21. Mr. Pizzale said that the main difference was this withdrawal of $80,000. He explained that the respondent had multiple financial advisors and simply doesn’t know where this money went. I then made the preliminary observation that money in this amount doesn’t just disappear, and the respondent has the onus of showing where it went, and if he can’t do so he has a problem.

39I remain of that view. A sum of this kind cannot simply disappear in the span of 3 weeks. If it was transferred into another investment account, that account should show the transfer in. If it was used to purchase an asset worth $80,000, that newly-acquired asset would have to be disclosed, and would show up on the NFP Statement. Each party has the onus of proving their assets on the valuation date and the date of marriage. Since the sum of $80,000 did not simply disappear in the span of 3 weeks, I draw the inference that it must have been moved somewhere, but the respondent has simply been unable to locate it. Accordingly, that sum will be added back into the value of this Scotia account.

40Once that is done, the difference in the net family property of the spouses on the two proposed dates is negligible. Accordingly, I find that the date of separation, for purposes of equalization, is August 21, 2012, the date when the parties actually began to live separate and apart. However, the value of this Scotia account will be adjusted so as to add back this unexplained transfer.

41Given this finding, I will use the respondent’s side of the Comparison of Net Family Property Statements included in the respondent’s Closing Submissions, which uses an August 21, 2012 v-day, as the framework for my analysis of the remaining equalization issues. In apparent anticipation of my ruling, the respondent has already added back in the sum of $80,000 to the value of the Scotia account shown on pg. 8 of that statement.

2. 1573 Hansuld St., London

1573 Hansuld St., London

42This is the first disputed item in the NFP Statement. The parties agree that it had a date-of-marriage value of $140,000 and a v-day value of $172,500. However, this asset remains in the joint names of the respondent and his first wife, Stella. Accordingly, the respondent shows both values at 50% of the total value, ie. $70,000 and $86,250 respectively.

43The applicant accepts the date-of-marriage valuation, but takes the position that the respondent has since purchased Stella’s half interest, such that 100% of the value should be shown on v-day. She relies on the fact that the applicant has claimed 100% of the rental income and expenses of the property throughout. The respondent explained that they had ongoing difficulties with finding and keeping tenants, and the expenses generally exceeded the revenue. Since he paid all the expenses, it made sense that he also claimed the revenue for income tax purposes.

44This property was dealt with in the separation agreement dated September 24, 2003, between the respondent and Stella. Para. 4.1(4) provides that the parties will jointly list this property for sale forthwith and equally divide the net proceeds between them upon closing. Subparagraph (5) provides that all transfers are to be prepared and executed no later than December 31, 2003.

45However, the parties never did list the property for sale, and it remains in joint names to date. The respondent testified that he never purchased Stella’s half interest in the property. There is a draft agreement relating to Hansuld St. found at CL-B3893, which is signed by both parties, but the numbers have been altered, and only the initials of Stella are found beside those amendments, and not those of the respondent. I conclude that no final agreement had been reached for a buy-out. This accords with the state of title as it presently stands, since it would be exceedingly foolish for the respondent to pay for Stella’s half-interest in the property, only to leave it in joint names, where she would continue to have a registered 50% legal interest in the property, and would become the sole owner of the entire property upon the death of the respondent.

46The applicant, at para. 58 of her Closing Submissions, relies on a statement made by the respondent during oral questioning where he agreed with a proposition put to him by the applicant’s counsel that he “bought her out” of Hansuld, but “just never transferred title”. When this was put to the respondent during cross-examination, his response was that this must have been a misunderstanding. He intended to buy her out, but it never happened. His evidence, both elsewhere in his oral questioning and at trial, was clear and unequivocal that he has never purchased her interest in the property, nor did he ever pay her anything for her interest, and title remains in both names. I accept his evidence.

47The applicant’s assertion that the respondent is now the sole owner of this property is little more than speculation, and has no evidentiary basis. Stella is alive and well, living in Woodstock, and there is no reason to believe she would not have been available to testify at trial. Since it is the applicant who takes issue with the state of title as reflected by the official documents at the Registry Office, my view is that the onus would be on her to call Stella as a witness to see whether those documents paint a false picture, and whether she no longer has a 50% beneficial interest in this property.

48Absent such evidence, I accept the state of the title documents, and find that both the date-of-marriage credit and the v-day value are to be shown at 50% of their agreed-upon total value.

3. 1450 Villa Capri Circle, Odessa, Florida

1450 Villa Capri Circle, Odessa, Florida

49The applicant admits that she became the registered owner of this property on December 6, 2012. While that is after v-day, the respondent argues that the applicant signed an agreement of purchase and sale before v-day, and paid a deposit of US$16,400 on May 3, 2012, without his knowledge or consent. Thus, she had an interest in that property on v-day equivalent to the amount of the deposit which was being held in trust at that time to her credit, which the respondent calculates to be equivalent to CAD$16,162.

50The applicant has been stonewalling the respondent’s efforts to obtain details about this property for years. It was the subject of disclosure orders made by Leach J. on February 28, 2020 and Mitchell J. on November 19, 2021, and was the subject of several trial management conferences. Ultimately, she produced only a few, generally unhelpful, documents, and only did so days before the trial. When counsel for the respondent attempted to question her on November 25, 2021 about this property, she was evasive, and said that Villa Capri was not the respondent’s business. She has also made equivocal and contradictory statements suggesting that some other person was the real owner of this property (that other person being her sister), but was unclear whether that person owned 50% or 100% of the property. She failed or refused to comply with the order of Leach J. that she provide all evidence supporting the allegation that this property was purchased by a relative.

51What is clear is that she did become the registered owner of the property in December, 2012, confirmed by the deed in her favour found at CL-B707, at a purchase price of $68,400. Among the few documents she did produce was a “Property History for 1450 Villa Capri Circle, Unit 205”, which shows that transaction at that price in December, 2012. It also shows a “pending” transaction, at that same price of $68,400, on May 24, 2012. She testified in cross-examination that the property was purchased in the spring of 2012, but it took a long time to be approved by the bank, which explains why the transaction did not close until the following December. It was being sold under Power of Sale by Bank of America. Given the applicant’s refusal to provide proper disclosure, I draw an adverse inference against her, and conclude that the “pending” transaction reflected in the property history in May, 2012 represents her agreement of purchase and sale. Thus, she had an interest in this property equivalent to the deposit on v-day.

52I accept the evidence of the respondent that the applicant had exclusive control of the joint Synovus account ending in 085-3, from which a cheque in the amount of $16,400 was written on May 3, 2012. I reject the applicant’s denials that she wrote that cheque. In the absence of any credible explanation as to where that money went, and in view of the refusal of the applicant to provide proper disclosure regarding this property, I conclude that this cheque represents the deposit paid by the applicant on this property.

53Accordingly, the applicant’s interest in this property will be reflected in her v-day assets at a figure of $16,162.

4. Applicant’s alleged property in Singapore

Applicant’s alleged property in Singapore

54This is the next disputed item, and may be quickly dealt with. The applicant claims that she owned 6 Haig Road, Unit 11 in Singapore, both on the date of marriage and on the date of separation. She has not produced a shred of evidence either to confirm her ownership of this asset, nor to prove its value at the two relevant dates. I accept the submission of the respondent that this item should be completely disregarded.

5. Household items and vehicles

Household items and vehicles

55The parties agreed to the values of the vehicles owned by them. However, there is a dispute as to household goods and furniture, both on v-day and on the date of marriage. Also, many of the items in the comparison NFP statement are marked with an asterisk, denoting that these are items destroyed in the flood or missing. These include Longine and Rolex watches which the applicant claims she purchased for the respondent, but which he testified were at the matrimonial home when he was arrested and immediately excluded from the matrimonial home, and which were not there when he next returned following the flood in March of 2015. The applicant speculates, without evidence, that the respondent’s daughter took them on the one occasion she went to the home to retrieve clothing and other personal belongings for the respondent, but the respondent denies this allegation.

56There are no valuations for these items, which is not surprising since they were missing or damaged, making valuation difficult or impossible.

57With respect to the respondent, there is no doubt that he had a fully-furnished house on the date of marriage, which would serve to neutralize the value of the household contents that remained 6 ½ years later on v-day. Counsel for the applicant suggested, in the circumstances, that no value be attributed to either party relating to household contents, and I accept that suggestion. Counsel for the respondent did not voice any strong opposition, and indeed suggested that most of the items on the list would be neutralized anyway by offsetting credits for date-of-marriage property.

58Accordingly, this category in item 1(b) of the NFP Statement will include only the vehicles at their agreed-upon values, but will exclude all other listed items. The figures for general household items and vehicles owned on the date of marriage shown in section 3 on the NFP Statement will similarly be deleted, except for the agreed-upon value of the respondent’s Lexus. Tools, electronics and sports equipment are listed as date-of-marriage assets, but no values have been assigned to those items, so for practical purposes they are already deleted.

6. MD Management accounts

MD Management accounts

59The next three disputed items are MD Management accounts, which were held by the respondent in trust for his three daughters Christine, Karen and Judy. They are in the amount of $10,549, $9,857.65 and $19,398.82. Those investment accounts were all closed out in June and July, 2012, the latest transaction being July 9, 2012. According to the affidavit of Jason Webster, the respondent’s portfolio manager at TD Waterhouse, which was filed as evidence at this trial, the respondent was in the process of closing out all of his MD Management accounts and transferring them to TD during that period of time. As at v-day, there was a nil balance in all of the accounts.

60I attribute no value to these items in the NFP statement. To begin with, they constituted trust monies, the beneficial owners of which were the respondent’s daughters, not the respondent. Furthermore, they had no value as of v-day, and that applies even if one were to use the v-day proposed by the applicant of July 29, 2012. The respondent has no obligation to account for every transaction that took place in the period between the date of marriage and v-day. There is no evidence of fraud nor any other reason to infer that these monies were appropriated by the respondent and were secretly held by him on v-day and not disclosed.

7. Scotia account ending in 50529

Scotia account ending in 50529

61This is the next disputed item, but I have already resolved it and determined that the unexplained withdrawal of $80,000 must be added back in. The figure of $96,932.32 in the respondent’s NFP Statement reflects this add-back.

8. Isle of Man accounts

Isle of Man accounts

62There are four investment accounts held in the Isle of Man, which have been owned by the respondent since prior to the marriage. He had taken the position throughout this litigation that these accounts were owned jointly with his first wife, Stella, both on the date of marriage and at v-day. However, I am satisfied that this was based on a misunderstanding by the respondent, which was that since they were owned on the date of separation with Stella, they were jointly owned. In fact, the evidence shows that at all times these investments were held by the respondent in his name alone. Absent any evidence that the manner in which title to these accounts was held does not reflect reality, I find that the respondent was the sole owner.

63Accordingly, the values for these four accounts as at v-day, as set out at pp. 8-9 of the respondent’s NFP Statement, are accepted as correct, as are the corresponding, and offsetting, entries in the date of marriage section at p. 16. Note that the total value of these accounts actually decreased between the date of marriage and v-day, primarily due to fluctuations in the exchange rate between the Pound Sterling and the Canadian dollar.

9. ScotiaMcLeod account 400-74200

ScotiaMcLeod account 400-74200

64The dispute relating to this issue is similar to item #2 above. The respondent testified that this account was in joint names with his prior wife Stella on the date of marriage, and remained in joint names on v-day. This accords with the manner in which ownership of this account is shown in the documents filed. The applicant submits, without evidence, that the respondent is the sole owner.

65For the same reasons already given, there is no evidentiary basis to conclude that ownership of this account is anything other than as expressed in the documentary evidence. Accordingly, the figure of $30,394 shown on p. 9 of the respondent’s NFP Statement, and the corresponding date of marriage entry on p. 16 of $28,585.50, are accepted as correct. While the bank statement used to establish the v-day value was for June 2012, the evidence establishes that no statement was issued for August 2012 because there was no activity in this account during that month, such that the statement for June 2012 continued to be accurate.

10. TD Canada Trust account 6005270

TD Canada Trust account 6005270

66At para. 83 of the applicant’s Closing Submissions, she states that the respondent has not explained the withdrawal of $10,000 on August 10, 2012. This account was not flagged as an item in dispute on the Comparison of Net Family Property Statements filed by the parties. No questions were put to the respondent in cross-examination demanding an explanation for this withdrawal. It was raised for the first time in closing submissions.

67It would not be fair to consider this issue now, given the fact that the respondent has had no opportunity to respond to it in his evidence. In any event, an explanation is apparent on the record, since there is a transfer into the respondent’s TD US dollar account the same day in the amount of $9,924.57, which appears to match the withdrawal, after accounting for the exchange rate.

11. Sun Trust account

Sun Trust account

68The respondent had a bank account in Florida at Sun Trust that he used for personal expenses. It was not disclosed by him until its existence came to light in 2021. However, he admits that he owned it from the time he initially acquired the Florida properties, and thus he owned this account on v-day.

69Once this account came to light, current counsel immediately requested disclosure of account statements from Sun Trust. However, they were only able to produce statements for the preceding 7 years. The earliest statement available is dated August 13, 2013. It shows a balance for the previous month of $29,436.32 and a balance for the current month of $34,031.78.

70The applicant asks that this account be included in the respondent’s v-day property, as the best evidence as to what was in that account at the date of separation. The respondent objects, stating that if the applicant had raised the issue sooner he would have been able to obtain a statement for August of 2012.

71The law is clear that the onus is on each party to prove the value of their assets as at v-day. They cannot wait until they are asked by the other party before obtaining copies of all relevant bank statements. Responsibility for the lack of a v-day statement rests with the respondent. Accordingly, I agree with the applicant that the August 13, 2013 statement constitutes the best evidence as to what was in that account, with the preceding month’s balance being the closest one to v-day. The Sun Trust account will therefore be added to section 1(c) of the respondent’s NFP statement at a value of $29,436. Since the US dollar was at or close to par with the Canadian dollar in 2013, I will not concern myself with the exchange rate.

12. 2315771 Ontario Ltd.

2315771 Ontario Ltd.

72This is a corporation solely owned by the applicant. In the Memorandum of Agreed Facts executed by counsel on December 15, 2021, it was agreed that the value of this corporation as at v-day was nil, even though the corporation had over $47,000 in the bank and had just purchased a brand-new Lexus. However, as is apparent from the report of the applicant’s expert, Craig Lukassen, this opinion reflected the fact that there were offsetting shareholder loans that reduced the net value to nil.

73In his report, and in the financial statements attached thereto, Mr. Lukassen notes that there was a shareholder loan due to the applicant from the company as of v-day in the amount of $75,731. In para. 88 of her Closing Submissions, the applicant admits that there is a shareholder loan owed to her, and accepts the financial statements as accurate. In para. 51 of the respondent’s Closing Submissions, he agreed that the applicant’s corporation should be shown at a nil value, but that the shareholder loan owing the to the applicant should be shown as an asset. The applicant did not respond to these submissions in her Reply Submissions.

74Accordingly, based on the admitted facts, I agree with the respondent that p. 12 of the NFP Statement should reflect a nil value for the applicant’s corporation, but also reflect the loan owing to the applicant in the amount of $75,731 under the “Money Owed to You” section.

13. Promissory note from Applicant to Respondent

Promissory note from Applicant to Respondent

75Included in the “Money Owed to You” section of the respondent’s NFP Statement is a promissory noted dated February 12, 2012, from the applicant to the respondent in the amount of $25,000. This same note is reflected in the applicant’s “Debts and other Liabilities” section at p. 14 in the respondent’s statement.

76The applicant argues that she should not have to pay this note, because it was incurred to renovate her Hamilton Road property into a medical office, and the respondent subsequently defaulted by failing to occupy the property and pay rent. The respondent argues that the note is a clear legal obligation which will be summarily enforced by the courts, and that the applicant failed to plead any set-off in her pleadings.

77The applicant’s claim relating to her alleged entitlement to arrears of rent regarding this property will be dealt with below. With respect to equalization, the applicant has never paid the promissory note and it is clear that she has no intention of paying it. It would penalize the respondent to simply put the note in as an asset in the respondent’s hands and as a debt owing by the respondent, because this would result in the respondent’s NFP going up by $25,000 and the applicant’s NFP going down by $25,000, generating a net difference of $50,000 and an equalization payment due to the applicant amounting to 50% of that amount, or $25,000. This would be unfair because the applicant has not and will not pay this note.

78The simple solution, it seems to me, is to ignore the note entirely. I find as a fact that there was no prospect of it ever being paid by the applicant as at v-day, and thus it has a nil value both as an asset in the respondent’s hands and as a debt in the applicant’s hands. This is the same result as if I had awarded the applicant an equalization payment of $25,000 as calculated above, but offset that against the note owing to the respondent in the same amount, such that the note would be deemed to have been satisfied by the equalization payment.

14. Respondent’s income tax liability

Respondent’s income tax liability

79The respondent’s contingent tax liabilities of $323,892 and $940,000 shown on pg. 13 of the NFP statement were initially in dispute, but those figures were agreed to in the Memorandum of Agreed Facts.

15. Applicant’s income tax liability

Applicant’s income tax liability

80Similarly, the applicant’s contingent tax liabilities on her RRSPs in the amounts of $5,000.50 and $6,867, shown on pg. 14 of the NFP statement, were settled in the same document.

16. The Respondent’s tax liability on his business premises

The Respondent’s tax liability on his business premises

81The respondent claims a contingent tax liability on the business premises owned by him at 35 Wolf St., Tillsonburg. He claims this based on the fact that the value of the property increased from the date of marriage to v-day by $43,823. Since 50% of capital gains are taxable, he claims a tax credit of $6,867, based on the same rate agreed upon for the income tax on his RRSPs of 31.34%. However, the respondent acknowledges having called no expert evidence on this issue, nor did his client deal with it in his evidence

82I am not prepared to deal with this issue in the absence of expert evidence. Capital gains are calculated based upon the difference between the fair market value of the property at the relevant time, and the adjusted cost base. The adjusted cost base usually begins with the purchase price paid for the property, but can be affected by many things, such as capital improvements. There is no evidence before the court as to what the adjusted cost base of this property was on v-day, and thus the court is in no position to do the necessary calculation. Clearly, this is an issue that should have been the subject of an agreed statement of facts or, failing such agreement, expert evidence.

83This claim is rejected.

17. The Respondent’s debt to his corporation

The Respondent’s debt to his corporation

84James Hoare is a well-respected business valuator, and his report regarding the value of the respondent’s professional corporation was filed without the necessity to call him as a witness. He assessed the value of the corporation at $3,379,100, based on the cash available for distribution following a sale of the assets. That value has not been challenged by the applicant. One of the assets listed in the financial statements attached to that report is a “receivable from shareholder”, the shareholder being the respondent, in the amount of $123,125.

85The respondent argues that this debt is a real debt, and was factored into the value of his corporation, and therefore he should be entitled to claim it as a debt or other liability owed on v-day. I agree. That figure is appropriately included on p. 15 of the NFP statement.

86He goes on to argue that, notwithstanding Mr. Hoare’s opinion, his corporation has been overvalued by the sum of $45,325. His argument is that another asset that was listed in the financial statement upon which Mr. Hoare based his valuation is a debt owed to the respondent’s professional corporation by the applicant’s corporation in that same amount, which was apparently loaned to finance renovations to the Hamilton Road property. This debt was one of the entries that led the applicant’s expert to conclude that the applicant’s corporation had no net value. It has never been paid.

87The respondent acknowledges that no expert evidence was tendered with respect to this issue, but asks the court to take notice that the equalization is inflated by the after-tax value of that $45,325, which amounts to approximately $30,000 net of tax.

88The respondent is asking too much. In effect, counsel for the respondent is giving evidence in his written submissions that should have come from a duly qualified expert. It would have been a simple matter to ask Mr. Hoare whether his opinion as to the value of the respondent’s corporation would be affected by the fact that this debt has never been paid, and if so to what extent. This claim is rejected. My ruling in this regard will not require the deletion or amendment of any item in the NFP Statement, since the value of the respondent’s professional corporation is shown on p. 11 at the value established by his expert of $3,379,100, and there is no other entry that reflects the respondent’s claim that this figure is overvalued.

18. Net value of property on date of marriage

Net value of property on date of marriage

89There are several items that were initially in dispute under this category, which have either been resolved by the parties or already ruled on by me, and may be dealt with quickly.

90The first item is the Hansuld St. property, which I have ruled is jointly owned by the respondent with his former wife Stella, so 50% of its net value is appropriately entered.

91I have already ruled that the applicant has proven no deduction regarding property allegedly owned by her in Singapore.

92Household contents have been deleted for reasons already given. The respondent does have a claim for a 2001 Lexus which is not in dispute.

93The amount of the respondent’s BMO account was initially in dispute, but that has been resolved by the Memorandum of Agreed Facts at $8,410.90.

94The next item in dispute is the respondent’s MD Management RRSP. He asserts a value of $588,791.67, which is verified by a statement from MD Management dated December 30, 2005, which is two days after the date of marriage. The applicant has used a lower figure of $573,116.43, which comes from the November 30 statement. However, that statement fails to account for the income earned by the fund between that date and the date of marriage. I accept the respondent’s figure.

95The same issue arises with respect to the respondent’s MD Management non-registered securities account. I accept the respondent’s figure of $1,019,275.48, which is verified by the account statement dated December 30, 2005.

96The next three items are the MD Management accounts which were held in trust by the respondent for his three daughters. I have already observed that these should not be included in his v-day assets, because the beneficial owners of these monies are his daughters. For the same reason, he is not entitled to a date-of-marriage credit for these accounts, and they will be deleted.

97The next four items are the Isle of Man accounts. I have already ruled that the respondent is the 100% owner of those accounts, and the NFP Statement filed by counsel for the respondent with his written submissions has appropriately made that correction, both for the date-of-marriage and v-day values.

98The next disputed item is the Scotia McLeod non-registered securities account, where I have already ruled that the respondent holds only a 50% interest. The figure of $28,585.50 is correct.

99The next item initially in dispute is the TD Waterhouse US account. At para. 95 of the applicant’s Closing Submissions, she concedes that her initial position on this figure failed to take currency exchange into account, and she no longer disputes the respondent’s figure.

100The next disputed item is the respondent’s claim that he had goodwill in his medical practice valued at $500,000 as at the date of marriage. In this, he is at odds with his own expert, Mr. Hoare, who is of the opinion that any goodwill in the medical practice is personal to the respondent, and has no marketable value. For that reason, he did not include goodwill in his valuation of the v-day value of the respondent’s practice. Obviously, I prefer the opinion of Mr. Hoare over that of the respondent, and the date-of-marriage credit for goodwill will similarly be deleted.

101The final disputed item is the applicant’s claim that her first husband owed her approximately 100,000 Singapore dollars on the date of marriage. She has failed to provide any proof of this claim, and it will be deleted.

19. Calculation of Net Family Property and Equalization payment

Calculation of Net Family Property and Equalization payment

102I am now in a position to calculate the net family property of each party and the equalization payment that is due, taking into account the rulings I have made above. I have rounded the numbers out to the nearest dollar. I encourage counsel to double-check my calculations.

DESCRIPTION	APPLICANT	RESPONDENT
1. Value of assets on v-day
(a) Land	$478,711	$1,415,999
(b) General household items and vehicles	Nil	$50,000
(c) Bank Accounts, securities etc.	$187,772	$5,192,011
(d) Life and disability insurance	Nil	Nil
(e) Business interests	Nil	$3,379,100
(f) Money owed to you	$75,731	Nil
Total value of property on v-day	$742,214	$10,037,110
2. Value of debts on v-day	$232,035	$1,395,859
3. Net value of date-of-marriage property	Nil	$5,043,022
4. Excluded property	Nil	Nil
Net Family Property	$510,179	$3,598,229

103This results in an equalization payment due from the respondent to the applicant equivalent to 50% of the difference between those figures, which amounts to $1,544,025. The manner of payment of this amount will be discussed below.

POST V-DAY ADJUSTMENTS:

Post V-Day Adjustments

104The first issue to be dealt with under this heading is the respondent’s claim for reimbursement of monies wrongfully withdrawn from the joint Synovus account in Florida. In oral questioning on August 21, 2015, by then-counsel for the respondent Ms. Houston, the applicant admitted withdrawing the sum of $40,000 from the joint Synovus account in March, 2015 and depositing it into her US dollar Royal Bank account in Canada. Her excuse for doing so was that the respondent allegedly told her in July that he was going to Florida in November with his girlfriend and was going to take the money out of the account. This doesn’t make sense on its face, since it is difficult to understand how something said in July could motivate a withdrawal taken 4 months earlier, but that is what she said.

105When she was asked at trial in examination-in-chief whether she had ever withdrawn any money from the Synovus account, she denied doing so. When confronted on cross-examination with the admission she had made to Ms. Houston, she said she “can’t remember”. The next day she sought to correct that answer, and admitted to withdrawing $24,000.

106I will hold her to her first admission, that she withdrew $40,000 from this joint account and put it into her own Royal Bank account. Since this was joint money, half of the sum she withdrew belonged to the respondent and half belonged to her. The respondent is, therefore, entitled to a credit of $20,000 as against the equalization payment that is due to her.

107The respondent is also claiming that the applicant made other unauthorized withdrawals in April, May, June and early August, 2012, but they predate v-day and, for that reason, I am not prepared to consider them. Whatever money she may or may not have taken may well have ended up in one of her bank accounts, which have already been equalized as of August 21, 2012. Absent evidence tracing precisely where this money went, these claims are untenable.

108The second post v-day adjustment claim to be considered is made by the applicant. She claims an accounting of rent relating to the jointly-owned Florida properties. There were four properties in all that were acquired during the marriage. 16251 Ivy Lake Road, Odessa, was purchased by the respondent in his own name, so it is not relevant to this discussion. The other three were purchased in joint names: 16617 Ivy Lake Road; 30806 Sonnett Glen, Wesley Chapel; and 17831 Balmaha Dr., Land O’Lakes.

109The Balmaha Dr. property was sold in 2020, and the proceeds divided, although there was withholding tax of $36,000 that will not be released until the parties file their 2020 USA income tax returns. The other two properties remain to be sold, and that will be dealt with later in these reasons.

110With respect to the applicant’s claim for an accounting, the evidence presented by her was woefully inadequate. No oral evidence was given by the applicant as to what she is claiming in this regard. The written argument submitted by the applicant provided no analysis of the evidence to substantiate the amounts the applicant was claiming. She baldly claims rent for Ivy Lake at $3,200 per month for 10 years, less property taxes, multiplied by 50%, totalling $142,551. She claims rent for Sonnet Glen at $1,800 per month for 7 years, less property taxes, multiplied by 50%, totalling $63,376. No evidentiary nexus is established between these claims and the amount of rental revenue actually generated, nor the expenses, other than property taxes, actually incurred. She summarizes the rent she received relating to Balmaha, since she was the one managing that property, but provides no calculation as to what offsetting credit the respondent would be entitled to regarding that property. She also fails to acknowledge that the respondent was paying expenses for that property while she was receiving the rent.

111The applicant filed a spreadsheet prepared by her expert, Craig Lukassen, but he did not testify and there is no report to explain his calculations, which is problematic because his spreadsheet is not entirely comprehensible on its face. In particular, the figure “50%” is shown at the head of the columns for 2015 to 2020, but not for 2012 to 2014. I have no idea what that figure is intended to signify.

112Furthermore, his calculations show the net revenue to be a fraction of the patently absurd amounts claimed by the applicant. The properties lost money in many of those years. The cumulative net income for Ivy Lake for that entire 9 year period was calculated by him to be only $4,120; for Sonnet Glen it was $15,637; and for Balmaha it was $9,312.

113These numbers do not reflect the fact that the respondent paid property taxes and other expenses on the Balhama property that the applicant was managing and receiving the rent for. They don’t reflect the fact that some rent money was paid into court in Florida as a result of legal proceedings taken against them by the applicant.

114They also don’t reflect the admitted fact that rental money had been collected by one of their real estate agents for a considerable period, and then distributed equally between the parties. The date and precise quantum of that distribution are unknown, but the applicant admitted, during cross-examination, that after she sued the tenants at Sonnet Glen, the tenants started paying their rent to the property agents First In Property Management. She admitted that a statement from that agent for the period ended July 31, 2014, found at CL A1686, shows a bank balance of $24,263.85. She admitted that the agent eventually paid half of the money they held to her, and half to the respondent which, if the bank balance was similar at the time it was divided between the parties, would have meant that she received in excess of $12,000.

115If one ignores those gaps in the evidence and takes Mr. Lukassen’s spread sheet at face value, they show an entitlement in favour of the applicant that is a tiny fraction of the patently ridiculous amounts she is claiming. Total net revenue for Ivy Lake and Sonnet Glen was only $19,757, so her one-half share would be $9,879. However, net revenue for Balhama, which she managed, was $9,312, so the respondent’s one-half share would be $4,656. The difference in those figures is only $5,223 which, in the context of this case, is a trivial amount. Significantly, it appears that she may well have received much more than that when she received her half of the money held by the property agent.

116In the end, I agree with the respondent that, given the dismal state of the evidence, and the complete lack of any reliable calculations from either party as to what the applicant’s entitlement might be, there should be no accounting for the Florida rental properties. I have simply not been provided with the tools by the parties to intelligibly deal with this claim. On the evidence I have been given, the amount owing to the applicant appears to be negligible. This claim is dismissed.

117The final post v-day adjustment claim relates to property purchased by the applicant on Hamilton Road in London on March 24, 2011. She paid $188,000 for the property. The second floor was renovated as residential premises and, although she denies it, it is clear on the evidence that her son, Ryan Ong, resided there for several years. The main floor was converted to accommodate a medical clinic, and the plan was that the respondent would operate a satellite office there, attending a day or so per week, although his primary office would remain in Tillsonburg.

118The respondent did begin to operate a clinic at these premises and attended about once each week to see patients. The applicant’s records indicate that he paid rent of $1,130 in January, 2012, and $1,695 each for the months of May through August, 2012. In August, the applicant had the respondent charged and arrested for assault, charges with respect to which he was ultimately acquitted and which I have already found, based on my acceptance of the testimony of the respondent, to have been unfounded. Upon his release he was bound by a Recognizance not to attend within 100 m. of 523 Hamilton Road (see CL A1195). His attendance at that property ceased immediately, and he paid no further rent.

119The applicant claims the following with respect to Hamilton Road, as expressed at para. 117 of her Closing Submissions: “$3,468.73 average per week in 2012 x 259.80 weeks remaining = $901,176.05”. She makes a further claim at para. 121 for the loss of clinician fees she would have expected to be paid by the respondent, at the rate of $8,438.40 per month for 112 months.

120There are several problems with these claims, quite apart from the outlandish amounts claimed and the lack of any nexus between those numbers and the evidence. First, the documentation is deficient with respect to both claims. No executed lease has been tendered in evidence. The applicant is relying upon an unsigned lease dated January 31, 2012, found at CL A1178. This draft lease is between the applicant and P.T.F. Liwanpo Medicine Professional Corporation. The corporation is not a party to these proceedings, and the respondent is not personally liable for the corporation’s debts.

121The clinician agreement dated January 31, 2012, upon which she relies to ground her claim for clinician fees, was executed, but was entered into between 2315771 Ontario Ltd. and P.T. F. Liwanpo Medicine Professional Corporation, neither of whom are parties to these proceedings. Once again, the respondent bears no personal responsibility under this contract, nor is the proper plaintiff a party to this action.

122The second problem is that in her original application issued November 9, 2012, the applicant did not claim outstanding rent for the Hamilton Road property. The only claim she made for rent in the application related to the Florida properties. The Hamilton Road property was not even mentioned until the application was amended on October 16, 2020 and para. 51 was added, but even the amended document makes no express claim for the arrears of rent she is now claiming. Even if it did, the amendment was made well after the basic two-year limitation period had expired. Furthermore, no claim was ever made for outstanding clinician fees, so that claim would be statute-barred as well.

123The final, and fatal, problem with these claims is that these contracts, assuming for the sake of argument that they are enforceable and that the respondent, as opposed to his corporation, is somehow personally liable on them, were frustrated because the respondent was precluded by law from attending at the Hamilton Road premises as a result of his recognizance. This was entirely the result of the unfounded accusations made by the applicant, and is through no fault of the respondent himself.

124These claims are, therefore, dismissed.

FLORIDA PROPERTIES:

Florida Properties

125While calculation of the equalization payment and post v-day adjustments largely completes the property portion of this case, the two jointly-owned properties in Florida need to be dealt with. While I do not have in rem jurisdiction over those properties, since they are situated in Florida, the parties agree that I do have in personam jurisdiction to order the parties to participate in the sale of these properties, and to determine how the proceeds of sale are to be distributed.

126The applicant has, in her submissions and draft order, expressed a wish that 16617 Ivy Lake Drive be transferred to her, and that the other jointly-owned property, Sonnet Glen, be sold and the proceeds divided. Given the animosity between the parties, and their apparent inability to agree on almost anything, I am not confident that they will be able to agree on a figure for the buy-out of the respondent’s one-half interest in this property. They are, of course, free to negotiate a buy-out between themselves, but the order I make will provide only for the sale of these properties and the equal division of the proceeds of sale.

127An order will go that these two jointly-owned properties be listed for sale within 30 days, at a price and upon terms to be agreed by the parties. Failing such agreement, either party is at liberty to apply to this court for directions. The net proceeds of sale shall notionally be divided equally between the parties, but the respondent’s one-half share shall be paid to the applicant, after conversion to Canadian currency, in partial satisfaction of her equalization payment.

128In view of the applicant’s track record of delay, and to provide an incentive for her to fully cooperate with an expeditious sale of these properties, payment of the balance of the equalization payment will not occur until after those properties are sold and the net proceeds are applied toward that payment. Post-judgment interest will, however, begin to accrue immediately, to provide an incentive to the respondent to cooperate as well.

129Both parties shall file their 2020 US income tax returns within 60 days, in order to facilitate the release of withholding tax relating to the Balmaha property. Both parties shall file their 2022 US income tax returns at the earliest permissible opportunity, in order to facilitate the release of any withholding tax relating to the two jointly-owned properties that are to be sold.

CHILD SUPPORT:

Child Support

130The applicant has a child, Ryan Ong, born June 19, 1995. He is now 27 years of age, and is clearly no longer a child. However, the applicant seeks child support from the respondent, claiming that Ryan was a “child of the marriage”. No interim child support was ever ordered. The parties consented to the order of Aston J. dated September 18, 2015, paragraph 2 of which provided that “On an interim without prejudice basis there will be no Order for interim child support for the child Ryan Cui, born June 19, 1995”. Since that order was expressly made without prejudice, it has no impact on the merits of the claim now before the court.

131The applicant, in her Closing Submissions, made no submissions as to the quantum or duration of the child support she was seeking. In the proposed draft order that she filed, she proposed child support of $30,000 per year, from the date of separation to December, 2017, for a total of $150,000. There is no analysis offered as to how these numbers emerge from the Child Support Guidelines.

132The respondent opposes this claim, and maintains that he never stood in the place of a parent towards Ryan. That is the threshold issue to be determined.

133By way of background, the respondent testified that he met Ryan when he visited Singapore on one occasion, approximately two years before the marriage. This visit was memorable to him, because after having dined out on sushi with Ryan and the applicant, Ryan laid down on the pavement in the middle of the busy city, and would not get up, no matter what the applicant said or did. They ended up calling his maid, who convinced him to get up and took him home.

134He testified that he was told by the applicant that Ryan was living with his father and step-mother in Singapore, and was going to remain doing so. The respondent made it clear to the applicant that Ryan was not going to be part of his family, and that he was not going to adopt him. He said he told her that he had already raised four daughters of his own, and was “beyond raising kids”.

135Ryan did remain in Singapore with his father and step-mother when the applicant moved to Canada in 2005 to marry the respondent. Three years later, in 2008, the applicant told the respondent that Ryan had been in communication with her and was not very happy living with his father and step-mother. He wanted to come to Canada as a visitor during his summer vacation, for perhaps 3 or 4 weeks. He did come to Canada that year, and has remained here ever since.

136The applicant denies all of this, except the fact that Ryan came to Canada in 2008 and has remained here since then. For reasons already expressed, I prefer and accept the evidence of the respondent on this, and an all matters where their testimony conflicts.

137The relevant part of s. 2(2) of the Divorce Act provides as follows:

(2) For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes

(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

138The onus is on the applicant to prove that the respondent stood in the place of a parent, in order to obtain an order for child support.

139The leading case on the meaning of that phrase is Chartier v. Chartier, 1999 CanLII 707 (SCC), [1998] S.C.J. No. 79. Speaking for a unanimous court, Bastarache J. said the following, at paras. 38-40:

What then is the proper test for determining whether a person stands in the place of a parent within the meaning of the Divorce Act? The appellant argued that the test for whether or not a person stands in the place of a parent should be determined exclusively from the perspective of the child. I cannot accept this test. In many cases, a child will be very young and it will be difficult to determine whether that child considers the person as a parental figure. Further, an older child may resent his or her step-parent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent. The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered. In particular, attention must be given to the representations of the step-parent, independently of the child’s response.

Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan, supra, was dependent on the common law approach discussed earlier. It was wrong. The Court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step- parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.

Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.

140In Dovicin v. Dovicin, 29 R.F.L. (5th) 281, 2002 CanLII 49522 (Ont. S.C.J.), Cusinato J. cited with approval a decision of the Alberta Court of Appeal which emphasizes that the evidence must establish that the commitment to stand in the place of a parent was both voluntary and unconditional:

As stated by Justice Kerans in Theriault v. Theriault (1994), 1994 ABCA 119, 2 R.F.L. (4th) 157 (Alta. C.A.), it is the applicant who seeks child support that must establish a prima facie case of entitlement. Where the Court’s consideration relates to a parent other than a natural or adoptive parent, there must be evidence that in this instance the husband had voluntarily and unconditionally assumed the role of a stepparent. Most importantly, that he has assumed a permanent or indefinite unconditional commitment to stand in the place of a parent.

141The evidence, or lack of evidence, that points to a conclusion that the respondent did not stand in the position of parent to Ryan includes the following:

• The opinion of the child as to the relationship with the respondent is cited in Chartier as an “important” factor. Here, there is no evidence at all before the court as to how Ryan viewed that relationship, either directly from him or indirectly from other sources. Given that he was 26 years of age at the time of this trial, the usual considerations which militate against having a child testify would not apply here;

• When the respondent and the applicant began their relationship, it was on the clear understanding that Ryan was not going to be part of their new family unit, but was to remain in Singapore. That continued to be the case for three years, until the applicant brought him to Canada under the pretext that he was here for a visit only. The respondent did not voluntarily bring him into the family, but this was instead a situation that was imposed upon him by the applicant;

• Ryan’s interaction with the respondent was largely limited to eating dinner together, following which he retired to his bedroom. When the respondent attempted to involve Ryan in activities such as gardening, he showed no interest;

• The respondent was not involved in parental discipline, nor is there evidence that he participated in any other decision-making function with respect to Ryan;

• In particular, the respondent did not make decisions relating to Ryan’s education. The applicant wanted Ryan to attend private school in London, whereas the respondent was of the view that he raised his own four daughters in Tillsonburg where they attended the local high school and received a good education. It was the applicant who decided to place him in private school anyway, and agreed to pay the cost thereof. It was the applicant who arranged for, or provided, transportation to and from London for that purpose, except occasionally when the respondent happened to be in London working. The applicant later provided an apartment in the building she acquired on Hamilton Road so that Ryan could reside there while attending school, beginning in September, 2011;

• The respondent never attended any parent/teacher interviews or any other school functions;

• There is no evidence that Ryan participated in the activities of the respondent’s extended family, which included his four daughters;

• While the respondent and the applicant did take Ryan on one holiday to Florida, the evidence is clear that he and the applicant went to Florida frequently, and acquired several properties there. I infer that Ryan did not accompany them to Florida on these other trips. During the one that he did participate in, Ryan wanted to go to Cape Canaveral. The applicant rented a vehicle and took him there for a couple of days, while the respondent stayed behind at their Florida residence, which can hardly be described as a family outing;

• There is no evidence that the respondent ever represented to anyone that Ryan was his son and that he stood in the place of a father to him.

142The evidence that points to a conclusion that the respondent did stand in the place of a parent includes the following:

• He provided financially for Ryan’s needs, in that he provided him with a home to live in and paid for food and other living expenses. The applicant alleges that he paid for a maid or caregiver for Ryan, but that is denied by the respondent. He testified that the maid was hired by the applicant, to do cooking and other household duties, and was not something that the respondent was in favour of, since it required them to drive the maid to and from her home in Toronto at the start and end of each weekend. I accept his evidence;

• He paid Ryan to do computer work at his medical office;

• He assisted Ryan in learning French;

• He claimed Ryan as a dependant on his 2011 Income Tax Return;

• He is alleged to have signed a Sponsorship Agreement in support of Ryan’s application for permanent residency.

143Dealing with the latter point, a Sponsorship Agreement dated November 27, 2009 was filed as evidence, whereby the sponsor (the respondent) and the co-signer (the applicant) agreed to provide for the basic requirements of Ryan Ong until he reaches 25 years of age. The respondent was shown this document, and admits that it looks like his signature on it, but testified that he never signed this form, and does not remember doing so. If he did sign it (and I will assume he did for purposes of analyzing the evidence), that is a factor that would militate in favour of a finding that he stood in the place of a parent, but is far from determinative. It would not be surprising that the respondent would lend a helping hand in Ryan’s permanent residency application, given that he is the son of the respondent’s then wife. That does not mean that the respondent considered Ryan to be his own son.

144Dealing with the fact that the respondent claimed Ryan as a dependant for income tax purposes, that, in my view, simply recognized the reality that the respondent was paying all of the bills and Ryan was a de facto dependant. It does not necessarily mean that the respondent had a settled intention to treat Ryan as his own son. As already noted, having Ryan in the house was a situation that was imposed upon the respondent, and not something he voluntarily chose to occur.

145As to the fact that Ryan was able to earn income working on computers at the respondent’s office, I give this very little weight. Hiring someone to do part-time work to earn some spending money does not give rise to an inference that the employer has a settled intention to treat the employee as his child.

146As to helping Ryan with his French, the respondent admits having done so from time to time, since he had a grounding in French from his childhood in Mauritius. He understands and speaks a little French, but does not consider himself a teacher.

147While there is evidence that goes both ways, the preponderance of the evidence points to the conclusion that the respondent did not stand in the place of a parent to Ryan. While the respondent treated Ryan kindly, and provided for his needs, this was, I find, an understandable, and almost inevitable, reaction to the situation that was imposed upon him by the applicant, in unilaterally bringing Ryan to Canada, despite the respondent’s clear and unequivocal position that Ryan was not going to be part of their family. The evidence points to the conclusion that very little of a relationship between Ryan and the respondent was ever established, and nothing approaching that of a father and son. The respondent did not participate in the decision-making and discipline functions that would be expected of a parent, including major decisions regarding Ryan’s education. Significantly, there is no evidence that the respondent ever represented to Ryan or to the world at large that he considered himself to be Ryan’s parent, nor that Ryan considered him to be so.

148I conclude the applicant has failed to meet her burden of proving, on a balance of probabilities, that Ryan was a “child of the marriage” as defined by the Divorce Act. The application for child support is, therefore, dismissed.

SPOUSAL SUPPORT:

Spousal Support

149Following the separation, the parties entered into an interim separation agreement dated January 30, 2013, which provided for the payment of spousal support on a without prejudice basis. The respondent agreed to pay $8,000 per month to the applicant, commencing January 17, 2013, until further agreement or court order. That agreement remained in effect until the consent order of Donohue J. dated April 17, 2015, whereby the obligation to pay support pursuant to the agreement was terminated effective July 1, 2014. That order provided for one payment of $2,500 until the spousal support motion could be argued on May 22, 2015. The motion was adjourned several times and finally came back on September 18, 2015 for argument, with additional lump sums having been paid on account of support pending argument of the motion. On September 18, 2015, Aston J. made an order, on consent, providing for interim spousal support of $8,000 per month, commencing September 1, 2015. That order was made without prejudice to either party’s right to adjust support up or down.

150That order remained in effect until it was varied by the order of Leach J. dated February 28, 2020, following argument. It ordered that spousal support be reduced to $2,178 per month commencing March 1, 2020, without prejudice to either party’s ability to argue retroactive or perspective (sic) adjustments at trial. This variation order coincided with the respondent’s retirement from the practice of medicine. This order remains in effect to the present time.

151This was a marriage that lasted 6.5 years. The parties are in agreement that the Spousal Support Advisory Guidelines (“SSAGs”), which have become the starting point for adjudicating spousal support claims, provide for a duration of spousal support for a marriage of this length of between 3.25 and 6.5 years. The applicant has now already received support for a total of 9.5 years. Notwithstanding that, she seeks an order for indefinite spousal support from this point forward in the amount of $15,000 per month. She also claims that she was underpaid interim spousal support, and claims retroactive support of between $149,000 and $408,000, depending upon the income figures used in the SSAGs calculations.

152For his part, the respondent takes the position that spousal support should have terminated after four years, so that all interim support paid since 2017 should be refunded to the respondent. The respondent also relies upon Halliwell v. Halliwell, 2017 ONCA 349 as authority that provides guidance as to how spousal support should be calculated, where the payor’s income is well above $350,000 per year, and where the recipient spouse has been awarded a substantial equalization payment. Following that approach, the respondent calculates that he should have paid spousal support totalling $283,180 to the end of 2016. He calculates that he has actually paid $730,394 to the end of 2021, and has continued to pay monthly support of $2,178 to date in 2022. He asks for a credit equivalent to the amount of the overpayment, to be set off against the equalization payment he has been ordered to pay.

1. Statutory provisions

Statutory provisions

153The governing legislation is found in s. 15.2 of the Divorce Act. It provides, in part, as follows:

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.

(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.

(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.

2. Entitlement and duration

Entitlement and duration

154A threshold issue in any spousal support claim is entitlement. Here the applicant claims entitlement on both a compensatory and needs-based basis. I will deal with her claim for compensatory support first.

155The SSAGs provide a useful description of the nature of a compensatory support claim:

Compensatory claims are based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation.

156There are two allegations that the applicant makes in support of this claim. First, that she gave up a profitable business in Singapore in order to come to Canada to marry the respondent, resulting in an economic disadvantage that she should be compensated for. The second is that she made a significant contribution to the respondent’s medical practice.

157Dealing with the first, I have already discussed the applicant’s entirely unsupported evidence that she was operating a business generating between US$500,000 and US$1.5 million in Singapore, and rejected it as completely lacking in credibility. I am satisfied that her income prior to coming to Canada is accurately reflected by the modest earnings shown in her Singapore income tax returns. I accept the evidence of the respondent that she was living very modestly in Singapore, and brought virtually nothing of any value with her when she relocated to Canada.

158Far from causing an economic disadvantage, her marriage to the respondent proved to be an economic windfall. Her 6.5 years with the respondent earned her an equalization payment that I have calculated to be $1,544,025. She received other financial benefits as well, include her 50% interest in the three Florida rental properties, Belmaha Drive, 16617 Ivy Lake Road and Sonnet Glen, and her equity in 523 Hamilton Road. The Belmaha Drive property resulted in the Applicant receiving CAD$120,000 in 2020 and she is entitled to a further US$18,000 once the 2020 tax return is filed. The respondent estimates her 50% interest in 16617 Ivy Lake Road to be approximately $400,000 and her 50% interest in Sonnet Glen to be approximately $200,000 resulting in those Florida assets having a value of approximately $740,000 CAD. The Hamilton Road property had a value of approximately $200,000 at the time of separation and given the recent increase in real estate values that property is now likely worth significantly more. She was able to purchase the Shore Road property, which she subsequently sold for a profit of approximately $300,000, which is tax-free since it arose from the sale of a principal residence. She then purchased a house in Ilderton for $690,000, which is, or should be, debt-free.

159In sum, she has received economic benefits from the marriage totalling close to $2.5 million, without considering interim spousal support of between $668,540 (on the applicant’s numbers) and $745,693 (on the respondent’s numbers). This $2.5 million figure does not include the profit on Shore Road, nor value of her principal residence, but equally it does not account for any debt she allegedly owes to her family in China. I have already discussed the deficiencies in her evidence regarding this debt, including how much is owed and to whom. Her evidence is so unreliable and lacking in credibility that I am not in a position to make any findings in this regard. Whatever amount she does owe, if anything, was incurred, on her evidence, to purchase Shore Road, and thus the amount of that debt is completely offset by the value of the residence it was used to purchase. That loan should have and could have been paid off when she sold Shore Road at a substantial profit.

160As to her claim that she made a significant contribution to the respondent’s medical practice, this is not supported by the evidence. The respondent was 58 years of age at the time of the marriage, and had been practicing medicine for decades. He had established a mature and profitable medical practice, which did not undergo any substantial changes throughout the marriage. The sole exception was the applicant’s endeavour to have him open a satellite office on Hamilton Road in London, where he would work one day per week or so. This attempt at expanding the practice lasted only a matter of months, when it was shut down by virtue of the respondent’s arrest and the terms of his release, so it ultimately had no impact on the value of his practice.

161Fees generated by the practice for the year ended April 30, 2005, the year of the marriage, were $1,065,379. For the year ended April 30, 2012, the year of the separation, they were $1,053,938, although there had been a slight increase in the two preceding years.

162The applicant did work as an office manager in the respondent’s practice, but she was paid a salary for that. In 2010 she earned $60,000 and in 2011 she earned $80,000. In 2012, the year of the separation, she paid herself (unbeknownst to the respondent) a salary totalling $103,143, despite having worked only 8 months of that year.

163In the applicant’s Reply Submissions, at para. 13, she states that the respondent admitted, during cross-examination, that the applicant “was a significant contributor to the Respondent’s medical practice”. That does not accord with my notes as to his evidence. He did agree that she made a contribution to the medical practice, “to the extent that she was involved”. She did not take up the duties of an office manager until the latter part of 2006 or 2007. It was not put to the respondent that fulfilling that role, for which she was paid a salary, gave rise to an increase in the value of the practice, or any other benefit to the respondent that would generate an entitlement to compensatory support.

164I find that the applicant has failed to prove any entitlement to compensatory support.

165As to non-compensatory support, she does have entitlement, based on the disparity in their incomes and on the economic interdependency that arose during the marriage. She alleged that she and the respondent lived a “lavish” lifestyle, and accordingly she required and still requires substantial spousal support to maintain that lifestyle. I reject this argument. On the evidence, the parties lived a rather modest lifestyle, despite the substantial earnings the respondent was bringing in. The matrimonial home, while reasonably large, would not be out of place in any subdivision of upper-middle income earners. The applicant herself described the matrimonial home and furnishings as being “dated”. She also described the respondent as “cheap”, which reflects a frugal approach to lifestyle. The respondent had an 11-year-old Lexus on the date of separation, although he had just purchased himself a small Mazda motor vehicle immediately prior to the separation. He did purchase a new Lexus for the applicant in July of 2012, which is shown on the Financial Statement of her corporation, but that appears to be the only luxurious item owned during the marriage. There is no evidence of lavish vacations to Europe or elsewhere. They did go to Florida regularly, because they had properties there to attend to.

166The SSAGs “without child support” formula is intended to deal with both compensatory and non-compensatory support, but when applied to short marriages, it generates largely non-compensatory support. This is illustrated by the following excerpt from the Revised User’s Guide:

the without child support formula is based on a mix of compensatory and non-compensatory entitlement: when applied to short and medium length marriages without children, it generates largely non-compensatory support, providing a time-limited transition from the marital standard of living;

167However, before addressing the formula and the range of monthly support suggested by the SSAGs, the court must first consider the impact of the equalization payment. As Gillese J.A., speaking for the court, said in Halliwell at para. 141, it is relevant to both a compensatory and a needs-based spousal support claim:

In my view, the equalization payment which exceeds $3,000,000 should be viewed as going some distance towards addressing the respondent’s compensatory basis for entitlement. Further, the respondent’s needs and means must also be viewed in light of the equalization payment.

168When considering entitlement, one must also consider duration. As the Revised User’s Guide puts it:

Duration is often forgotten in the SSAG analysis. The formulas generate ranges for amount and duration. Amount cannot be considered alone. Duration is nothing more or less than the end of entitlement. When support stops, there may still be – and usually is – an income disparity between the spouses.

169When considering duration, periods of interim support are to be taken into account:

Any periods of interim support have to be included within the durational limits set by the Advisory Guidelines. For an explicit application of this see Fisher v. Fisher, 2008 ONCA 11. Further, most separated couples will go through a period, shorter or longer, of voluntary support arrangements and disentangling their household finances; these periods of informal support should also be taken into account in determining duration.

170I have already noted that counsel are agreed that the SSAGs propose a duration of between 3.5 and 6.5 years. I agree with the appropriateness of this range, given the very short duration of the marriage, the extraordinary economic benefits that have accrued to the applicant as a result of the marriage, and the lack of any basis for compensatory support. Since interim support started in 2013, the maximum duration of spousal support would have expired in the middle of 2019. Given the significant disparity in the incomes of the parties, I am of the view that the duration should be at the high end of the suggested range, because there is a greater transition to be made from the marital standard of living.

171In my view, the logical end point for spousal support in this case should be the end of February, 2020, which is the month when the respondent retired from practice. While it is slightly beyond the range suggested by the SSAGs, it is an appropriate end point, because the respondent’s source of ongoing income ceased at that point, such that he would be required to live off his assets and the income generated from those assets from that point forward. The applicant would be required to do the same.

172Parenthetically, I should comment on the fact that I have examined interim support using a commencement date of January 1, 2013, which is when support began being paid pursuant to the interim separation agreement. I could have used a September 1, 2012 start date, which is shortly following the separation, but ultimately nothing turns on it. I have determined that the applicant’s entitlement to support ceased at the end of February, 2020, during the interim period in question, which is a period slightly over 7 years in duration. Had I opted for a September 1, 2012 start date, I would have terminated support as of the end of October, 2019. This would have given the respondent a larger credit, but that would have been offset by the spousal support he would have had to pay from September 1 to December 31, 2012, prior to the commencement of payments under the interim separation agreement. The final result is the same either way.

173In my view, the economic windfall the applicant has received, from the equalization payment and the other financial benefits outlined above, provide the applicant with the means to provide for herself, and fully satisfy her entitlement to non-compensatory support. An order which terminates support as of February 28, 2020 serves to recognize the significant economic advantages accruing to the applicant as a result of the marriage and its breakdown; it relieves any economic hardship to the applicant arising from the breakdown of the marriage, in that it provides an appropriate time-limited transition from the marital standard of living; and it promotes the economic self-sufficiency of the applicant, in that it leaves her with substantial wealth with which to provide for her own needs.

174It follows that the applicant’s claim for ongoing spousal support is dismissed. It also follows that the respondent is entitled to a credit for interim spousal support paid since March 1, 2020, less a deduction for the tax deduction he has received or will receive on that support. The remaining question is whether there should be an adjustment, one way or the other, to the interim spousal support that was paid prior to March 1, 2020.

3. Should there be an adjustment in interim spousal support

Should there be an adjustment in interim spousal support

175Counsel have filed many Divorcemate calculations as to what they argue should have been paid by way of interim spousal support. The income figures that they use are different. The applicant’s figures as to the respondent’s income over the years, summarized at para. 261 of her Closing Submissions, are significantly higher than those of the respondent, in the order of hundreds of thousands of dollars per year. The respondent, in his responding submissions, offered a lower set of income figures (summarized at para. 262 of the applicant’s Closing Submissions), using a very complicated approach to his calculations but which approach was, I find, analytically correct. However, he failed to note the substantial difference with the applicant’s numbers, let alone offer an explanation for it. I was, therefore, left to figure that out for myself.

176Both parties intended to add back available, undistributed income from the respondent’s professional corporation, and I agree that that should be done. Where, as here, the payor is the sole shareholder, what happens with the money earned by his corporation is entirely in the discretion of the payor. He can take it all in salary, or part in salary and part in dividends, or choose to leave some of it in the corporation as retained earnings. This latter approach is often done for corporations that require working capital to operate, where retained earnings act as a form of internal financing. For a professional medical corporation whose sole source of income is generated by fees billed to OHIP, there would appear to be little need for much working capital, other than as a cushion to cover payroll and day to day expenses between receipt of OHIP cheques. Since the corporate earnings are all available to the respondent to take out if he wishes, I consider it them to be “available income” for purposes of support.

177Counsel for the applicant did provide an explanation for the difference in their figures, at para. 263 of their Closing Submissions. In the applicant’s calculations, 65% of net corporate income before tax was entered into the Divorcemate calculation as “Adjustments to Income - Expenses unreasonably deducted”. I conclude that this was a serious inputting error, and resulted in total income figures that are clearly wrong.

178Using 2014 as an example, I did a manual count of all of the respondent’s income figures set out in the applicant’s Divorcemate calculation for that year. The subtotal of all of the entries up to, but not including, “Adjustments to Income”, is $553,465. The only two remaining entries are the corporate income to be added back of $585,796, and carrying charges to be deducted of $32,558. On a manual calculation, this leads to total income of $1,106,703. However, Divorcemate calculated the respondent’s total income for support purposes to be $1,759,902. This is obviously wrong.

179To confirm this input error, I replicated this Divorcemate calculation myself, using the same software. I included every entry relating to the respondent’s income in the calculation done by applicant’s counsel, except that I entered the corporate income add-back of $585,796 as “Other taxable income” (which it actually is) instead of as “Adjustments to Income – Expenses unreasonably deducted” (which it is not). With this single change, Divorcemate calculated the respondent’s total income for support purposes to be $1,059,843, which is reasonably in line with the manual recount, given that other factors come into play in the computerized calculation.

180This figure is actually less than the figure of $1,318,086 that respondent’s counsel calculated for 2014. That is not surprising, since the respondent’s calculation accounted for the fact that corporate income was based on an April 30 year end, so that an accurate calculation required adding back 4/12ths of corporate income from one fiscal year and 8/12ths from the another.

181The same error is repeated in every one of the applicant’s Divorcemate calculations.

182I accept the respondent’s figures and calculations, set out at CL B795, as being accurate. I reject the clearly inaccurate figures supplied by the applicant.

183As noted earlier, the respondent relies heavily on Halliwell in calculating the appropriate amount of interim spousal support to be paid. There are many similarities with the present case. Like the case at bar, it involved the payor earning substantial annual income, well above the $350,000 ceiling where the SSAGs may not apply. It also involved the attribution of available income from the payor’s corporations, resulting in total imputed income of $1 million per year. It also involved a substantial equalization payment being made by the payor. Where the cases differ is that Halliwell was a long-term marriage with children, where the applicant had an entitlement to both compensatory and non-compensatory spousal support.

184The trial judge in Halliwell ordered the appellant to pay an equalization payment of $3 million, payable in equal annual installments over five years, with interest at 3% per annum. He also ordered $28,978 per month for spousal support, which was the full amount based on the SSAGs formula, based on imputed income of $1 million per year. Finally, he ordered retroactive spousal support of $1.1 million, less 40% for income tax, based upon the same application of the full SSAGs formula.

185An appeal to the Ontario Court of Appeal was allowed with respect to the orders for spousal support.

186Gillese J.A., speaking for the court, agreed with the decision of the trial judge to attribute corporate income to the appellant. However, she held that the trial judge erred in his application of the SSAGs to the case before him. She held that, in dealing with incomes over $350,000, an “individualized, fact-specific analysis” is required. However, the trial judge failed to fully consider the effects of the equalization payment, beginning with the question of entitlement, and thereby erred in principle.

187At paras. 117-118, she commented upon the $350,000 ceiling provided for in the SSAGs as follows:

The SSAGs provide at s.11.1 that after the payor’s gross income reaches the ceiling of $350,000, the formulas can no longer be applied automatically. At the same time, they make clear that $350,000 is not a “cap” and spousal support can, and often will, increase for income above that ceiling. The SSAGs provide the following example at s. 11.3:

If the payor earned more, say $500,000, a court could leave spousal support in that same range [the one for $350,000] or, in its discretion, a court might go higher, but no formula would push the court or the parties to do so and it would be an individualized decision. If the formula were to be applied for an income of $500,000, the support would rise to $15,625 to $20,833...monthly. Or the court or the parties might settle upon an amount somewhere in between these two ranges. These are large numbers for support in this case, but keep in mind that this is the very top end of the formula, with a long marriage, a high payor income and no income for the recipient.

I note that the SSAGs example uses an income of $500,000, half the amount attributed to the payor in this case, and still suggests that spousal support might be left in the same range as for an income of $350,000.

188She noted at para. 121 that the presence of a ceiling is also meant to address circumstances of high property awards, where the formula will not necessarily apply. She went on to conclude, at para. 122, that the trial judge erred in using the full $1 million as the income input, despite the fact that the equalization payment went some considerable distance towards satisfying the respondent’s entitlement to support:

The presence of a ceiling is also meant to address circumstances of high property awards. At s. 12.6.2, the SSAGs state that “the Advisory Guidelines can already accommodate these “high property” concerns” since “many high property cases are also high-income cases, bringing into play the ceiling above which the formula will not necessarily apply.”

Thus, while the trial judge was fully justified in making an award of spousal support that was both compensatory and non-compensatory, in setting the quantum, he needed to take into consideration the fact that the equalization payment went some considerable distance towards satisfying both bases for the award. As he did not, in my view, the use of the full $1,000,000 as an income input — in other words, the choice of an income input at the highest point within the suggested income range — was an error in principle. I will say more about this below, when determining an appropriate spousal support order.

189Given the errors that were found to have been made, it was incumbent on the appeal court to determine spousal support afresh. I will set out in full Gillese J.A.’s analysis and conclusions, found at paras. 140-149:

As I have explained, in my view, the trial judge committed two errors in principle in determining the quantum of spousal support, both of which relate to the effect of the equalization payment. First, he failed to consider the significant effect that the equalization payment will have on the respondent’s entitlement, both compensatory and non-compensatory (namely, means and needs). Second, he failed to impute investment income to the respondent based on her receipt of the equalization payment.

The Equalization Payment

In my view, the equalization payment which exceeds $3,000,000 should be viewed as going some distance towards addressing the respondent’s compensatory basis for entitlement. Further, the respondent’s needs and means must also be viewed in light of the equalization payment.

The trial judge focussed on the respondent’s significantly diminished standard of living after marriage breakdown. However, that reflected her financial status before any payment of equalization. After receipt of the equalization payment, the respondent’s means will be substantially increased and her need will be substantially decreased.

And, while the appellant’s means are considerable, they will be affected both by the requirement that he make the equalization payment (over five years) and also by the fact that significant additional income has been imputed to him.

Investment Income

There are two types of income that must be attributed to the respondent, in addition to her imputed employment income: post-judgment interest on the unpaid equalization payments, and investment income on the equalization payments as the respondent receives them. As has been noted, the trial judge recognized the former but erred by failing to take into consideration the latter.

Calculating Spousal Support

When calculating spousal support, one possible approach to dealing with these sources of additional income to the respondent would be to adjust the spousal support amount for each of the five years of the phased payout. Such an approach could take into account changes in investment rates, the increasing amounts of capital in the respondent’s hands and, arguably, questions such as whether and how to treat the compounding of interest. In my view, the complexities of such an approach tell against it. It would virtually inevitably invite more litigation.

Instead, I would establish a flat spousal support rate that itself takes into consideration the various effects of the equalization payment. This approach promotes finality for the parties, a value that cannot be overstated, particularly at this stage of intense and protracted litigation.

It is not possible to precisely assess the effects of any of these factors. However, they can and must be accounted for in the quantum of spousal support awarded. In my view, the preferable approach for doing that is to depart from the strict application of the SSAGs to the full $1,000,000 of imputed income to the appellant.

I would account for the effects of the equalization payment on entitlement, as well as the necessary attribution of investment income to the respondent, by applying the SSAGs formula instead to an income of $675,000. This amount is half-way between the ceiling and the imputed income of $1,000,000: an approach suggested as a reasonable mid-point by the SSAGs, in discussing incomes over $350,000.

In my view, attributing income of $675,000 a figure at the mid-point between the $350,000 ceiling and the full imputed income amount and maintaining the low-point of the range generated by this income (as the trial judge did), fairly achieves the desired effect of providing both compensatory and non-compensatory aspects of support.

190Accordingly, Gillese J.A. fixed the respondent’s ongoing support from January 1, 2016 forward, based upon the SSAGs formula, with the payor’s income pegged at $675,000 per year, which is half-way between the ceiling of $350,000 and the payor’s imputed income of $1 million. She then fixed retroactive support, from the date of the Application to January 1, 2016, using the same formula.

191While the logic of this approach to ongoing support is entirely clear, I was somewhat puzzled by its application to retroactive support. This is because one of the reasons for using a lower income figure is to recognize that it is necessary to attribute investment income on the equalization payments as the respondent receives them, since it affects her means and needs. Using a lower income input accomplishes that. However, when dealing with the quantum of a retroactive award, the reality is that the recipient has not yet received her equalization payment during that period, and thus there is nothing to attribute. Gillese J.A. recognized this at paras. 135-137, by stating that attribution should begin “once it is in her hands”:

At the same time, I agree with the appellant that investment income on the equalization payment of $3,000,000 should be attributed to the respondent once it is in her hands.

The trial judge did not attribute such investment income up to the date of the trial because, with the exception of the small advances used for legal and accounting fees, none of the equalization payment had been paid to her. I understand that this state of affairs has continued. It is self-evident that the appellant cannot get the benefit of attributing investment income to the respondent when the equalization monies are still in his hands.

However, since the trial judge’s order provides for equalization payments to be made from 2016-2020, investment income on the equalization payments should be attributed to the respondent in assessing the appropriate quantum of support.

192Perhaps the answer to my concern lies in the fact that the spousal support award in Halliwell was both compensatory and non-compensatory, and the receipt of an equalization payment addresses both, but in different ways. As Gillese J.A. said at para. 141, the equalization payment “should be viewed as going some distance towards addressing the respondent’s compensatory basis for entitlement”, whereas the recipient’s “means and needs must also be viewed in light of the equalization payment”. Using a lower income input for retroactive support could be seen as recognizing that the equalization payment has largely addressed the recipient’s entitlement to compensatory support, while doing the same for ongoing support could be seen as recognizing that the equalization payment, once in hand, will have an impact on the recipient’s means and needs.

193In the case at bar, I have ruled that the applicant has no entitlement to compensatory support, nor ongoing support. Her entitlement is purely needs-based and, given the short duration of the marriage, the duration of her entitlement to support has already expired. In these circumstances, it is difficult to conceive how an equalization payment received in 2022 can affect her entitlement to support based on her means and needs from 2013 to 2020.

194The respondent’s income figures, with full attribution of available corporate income, amount to average annual income from 2012 to 2018 of $903,650. I was not provided with a figure for 2019 by the respondent, but for present purposes I will assume that it would not significantly affect the overall average. Inputting that income figure into a Divorcemate calculation, assuming that the applicant has no income of her own other than spousal support, generates the following range of support: a low end of $7,341; a mid-point of $8,566; and a high end of $9,790. The amount of interim spousal support that was agreed to, on a without prejudice basis, throughout the applicant’s period of entitlement, was $8,000 per month. This is very close to the mid-point of the range suggested by the SSAGs, which is undoubtedly why it was a consent order.

195According to the respondent’s calculations at CL B795, the respondent’s income from 2012 to 2018, using the midpoint between $350,000 and his imputed income (which includes attributed corporate income), was as follows:

• 2012: $500,023

• 2013: $658,549

• 2014: $834,043

• 2015: $757,292

• 2016: $739,683

• 2017: $524,858

• 2018: $372,330

196This amounts to average annual income, based on the Halliwell approach, of $626,683. Inputting this income figure into the Divorcemate calculation, again assuming no income for the applicant other than spousal support, generates the following SSAGs calculations for monthly spousal support: a low end of $5,092; a mid-point of $5,940; and a high end of $6,789.

197This is not far from the monthly interim support of $8,000 that was paid throughout the period in question. I have already noted that one of the justifications for the Halliwell approach was the attribution of income to the recipient that the equalization payment would generate, and its impact on her means and needs. Given that the applicant did not have the benefit of that payment during the period in question, but instead the respondent had the benefit of the earning power of that payment throughout, I am of the view that no adjustment should be made to the amount of interim support already paid. However, since the applicant would, in effect, receive retroactive investment income on her equalization payment through prejudgment interest, I will account for that by denying the applicant any prejudgment interest. I note in passing that the denial of prejudgment interest is also amply justified by the applicant’s pattern of delay throughout the life of this file.

198While this conclusion does not follow the same approach as in Halliwell, the respondent concedes that Halliwell was never intended to impose a rigid formula as to how the court must proceed. Declining to adjust interim support prior to March 1, 2020 is, in the exercise of my discretion, a fair result, and one that is in accord with the objectives of the Divorce Act, on an individualized, fact-specific analysis. The interim support was paid pursuant to an agreement, followed by a consent order. Even though both were agreed to on a without prejudice basis, it seems somewhat unfair to make her pay back part of the support that she received on consent - money which has long since been spent. This result causes no financial hardship to the respondent, given his significant income over those years. The payor in Halliwell was paying spousal support at the maximum rate provided for by the SSAGs, and his payments, even after their reduction on appeal, were $21,000 per month in retroactive support and $20,000 in ongoing, indefinite monthly support, on imputed income that was only slightly more than that of the respondent. Gillese J.A. took into account the significant impact of both the imputation of income for support purposes and the equalization payment on the payor, at para. 143. In the case at bar, however, the equalization payment is roughly half of that in Halliwell, and the $8,000 per month that the respondent is being made to pay, for a limited term of about 7 years, is modest and affordable by comparison.

199Furthermore, the respondent benefits from the termination of spousal support as of March 1, 2020, and will receive a credit for payments made thereafter. The applicant will see her equalization payment reduced by the amount of that overpayment. To reduce it further, as requested by the respondent, would significantly erode the asset base that she will require to provide for her own needs from that point forward, and would be at odds with the objective in s. 15.2(6)(d) of the Divorce Act¸ which is to promote the economic self-sufficiency of both spouses.

200Before closing my analysis of this issue, I should comment on my assumption that the applicant had no income, other than spousal support, during the period in question. I agree with the respondent that her employment activities and sources of income throughout this period were a moving target, largely due to her evasiveness and refusal to answer questions and produce documents. For example, she initially denied any involvement with the Oxford or Oxbury Medical Clinic (there was some confusion with respect to the name). When confronted with Linkedin and Facebook posts in which she described herself as the manager of the clinic, she changed her evidence and stated that she did some advertising for the staff, but did so for no remuneration. However, her BMO bank statements show a transfer of $10,000 on December 29, 2016, another in the same amount on January 9, 2017, and another on January 25, 2017 in the amount of $5,000. In each case, the applicant wrote the word “Oxbury” beside the entries.

201It may well be that the applicant was able to earn some income during the period in question. I simply say that I am not persuaded that she earned income in an amount sufficient to affect my analysis of this issue.

202Accordingly, the claim the applicant for an adjustment in interim spousal support is dismissed. The claim of the respondent for an adjustment is allowed, and an order will go that the applicant’s entitlement to spousal support ceased as of February 28, 2020. The respondent is entitled to a credit as against the equalization payment owing to the applicant, in the amount of the interim spousal support paid from and after March 1, 2020, less a reduction of 40% for income tax. I will leave it to counsel to calculate the precise amount of this credit, although if support is up to date it should be 30 months multiplied by $2,178, less the income tax deduction. The claim of the respondent to adjust interim spousal support prior to March 1, 2020 is dismissed.

THE WATER DAMAGE CLAIM:

The Water Damage Claim

203I have already discussed this issue when I was addressing the issue of credibility. To recap, the respondent was bound by a recognizance following his arrest on August 21, 2012, which required him to stay away from the matrimonial home on Demeyere Ave. This gave the applicant de facto exclusive possession of this house, and she primarily and exclusively resided there until February 2015.

204The respondent’s acquittal on June 20, 2013 terminated the recognizance, and both parties brought their own motions for exclusive possession of the house. On September 4, 2013, Grace J. dismissed both motions. Days later, on September 12, 2013, the applicant caused the respondent to be charged with further criminal offences. He was released once again on the condition that he not attend at or near the matrimonial home. On December 2, 2013, the respondent entered into a recognizance whereby he agreed not to be within 100 meters of her residence. This was in effect for one year, and expired on December 2, 2014. Given the history of repeated criminal charges, the respondent quite understandably continued to stay away from the matrimonial home. He resided at his office on Wolf St., and did not return to the matrimonial home until the flood was discovered in March 2015.

205I have already considered and rejected the applicant’s testimony that she ceased residing at the residence in December 2014, because of the expiration of the recognizance. Based upon prior admissions made in her own affidavits, I have already found that she continued residing there until February 11, 2015, when all consumption of natural gas abruptly ceased.

206On or about March 9 or 10, 2015, the respondent was notified by the fire department that his house had been flooded. He attended at the residence, and found that the two furnaces the house is equipped with had been turned off. It was clear that the pipes had frozen and burst due to the lack of heat, and escaping water caused extensive damage to the residence. He called a heating technician, who was able to turn the furnaces back on.

207It would have been an astounding coincidence for both furnaces to have failed simultaneously, leaving the house with no heat in the middle of a Canadian winter. However, they did not fail, they had been turned off. That can only have been an intentional act.

208The applicant was in sole possession and control of the house until she moved out. The cessation of gas consumption coincided with her departure. Based on all of the compelling circumstantial evidence, I find that the furnaces were turned off by her, or at her direction, at that time.

209The applicant denies this, but I do not believe her. She alleges that the respondent is the one who turned off the furnaces, in order to claim insurance, alleging that he thereby engaged in insurance fraud. This is the same allegation she made to the police 6 ½ years after the flood, a mere three days before the start of this trial, in an attempt to force another adjournment. As already noted, the police did not pursue it.

210It would have made no sense for the respondent to destroy the house that he had built for himself and his family many years ago, along with the contents in it, just so he could put himself through the ordeal and uncertainty of processing an insurance claim and then living in a construction zone for months on end while restoration was underway. It makes even less sense in view of the fact that insurance coverage was not available, by virtue of the fact that the house was unoccupied at the time of the loss. This is a notoriously common exclusion in the vast majority of home insurance policies. While the respondent was not able to produce a Proof of Claim or other insurance documents, I accept his evidence that he contacted the insurance company after discovering the flood to notify them about the loss, but was advised that there was no coverage.

211The applicant claims that she wrote a note to tell the respondent that she was moving out of the house, so it was his fault that he did not immediately go there and ensure that the furnaces were in good working order. The manner in which she gave that testimony, though, undermines the assertion itself, because she immediately also said “it might have blown away or someone took it”. The fact that she was immediately looking for excuses as to why no note was received by the respondent is consistent with the inference that there never was any note. If she truly had wanted to notify the respondent that the house was vacant, there are many other ways in which to do so that would certainly have brought it to his attention, as opposed to leaving a note on his windshield and hoping for the best. She could have texted him or sent him an email. She could have dropped the note off to the staff at his office during business hours. Most importantly, she was represented by counsel at the time. She could have notified her lawyer that she was moving out, so that he could pass that information on to the respondent’s lawyer. She did none of that. I reject her testimony, and find that she took no steps to notify the respondent that the house had become vacant. Given the fact that the furnaces had been turned off, it is clear that the applicant intended to cause harm to the house when the pipes inevitably froze. Alerting the respondent that the house was vacant would have rendered turning off the furnaces pointless.

212The respondent denies receiving any such note, and I accept his testimony. His evidence as to his shock and dismay at seeing his family home of several decades so thoroughly destroyed by the flood was genuine, heartfelt and credible. The applicant relies on a passage in the transcript of his oral questioning of November 30, 2021 which she says is an admission that the applicant left a note on his windshield. I disagree. The passage in question is this: “The only thing that she wrote about is she left a piece of paper on my windshield and told me that she was leaving and that’s simply in this day and age it’s simply not enough.” It is clear from reading the surrounding statements that the respondent was simply recounting what the applicant’s side of the story was. In the same passage in the transcript, he said “I had no evidence that she was leaving. She never told me in writing…”. Later, he was specifically asked for his response to her evidence that she left a note. His response was “No. I never received any note on my windshield. She could easily have text (sic) me or something.”

213There can be little doubt that the respondent has a right of recovery in tort against the applicant. Counsel did not provide a wealth of caselaw, but referred to the general principle enshrined in Donoghue v. Stevenson, [1932] A.C. 564, (H.L.), where Lord Atkins said “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” In Chamberlain and Pitel, Fridman’s The Law of Torts in Canada, 4th Ed. (Toronto: Thomson Reuters Canada, 2020) at p. 16, the authors describe the foundations of liability in tort in the following terms:

In very general terms, apart from areas such as strict liability, liability is imposed because the defendant is the factual cause of what has happened to the plaintiff and the defendant is considered to be blameworthy due to his or her intention or lack of due care.

214Given that the applicant was entrusted with possession of the home, a duty of care would arise in favour of the owner, the respondent, to take reasonable care to ensure that the home did not suffer damage. Indeed, the applicant admits, at para. 63 of her Reply Submissions, that she had a duty to take care of the home while she was in occupation of it, although she argued (unsuccessfully) that she fulfilled that duty. It was entirely foreseeable that the water pipes would freeze and cause a flood if the furnaces were to be turned off in the middle of February. In this case, the applicant’s liability goes beyond negligence, since I have found that turning off the furnaces was an intentional act, which caused the foreseeable damage that ensued.

215The respondent also relies upon the law of bailment, but it is unnecessary to consider this.

216The applicant argues that the respondent is partly to blame for the loss, i.e., contributorily negligent, because he failed to notice the cessation of gas consumption or the sudden and enormous consumption of water. He admitted that he did have access to the utility accounts. However, there is no evidence as to precisely when he received them. Utility bills charge for consumption during the period immediately preceding the bill, so by definition the lack of gas consumption and the heavy use of water would have already occurred before that data was recorded in a utility bill and sent to the customer. Thus, if the respondent was negligent in failing to carefully read and monitor his utility bills, it had no causal connection to the loss.

217It was also suggested that the respondent should have been keeping an eye on the house, and was negligent in not doing so. I disagree. Given the applicant’s history of making unfounded complaints to the police, the respondent was acting reasonably in staying well away from the matrimonial home while he reasonably believed that the applicant continued to reside there.

218Liability on the part of the applicant is clear, and the applicant has failed to prove any contributory negligence on the part of the respondent. The only real issue to be determined is quantification of the respondent’s damages. The extensive damage to the house and contents is well documented by many photographs filed in evidence. An estimate from Joe’s Carpentry dated April 21, 2015 was filed, which estimated the cost of repair and replacement to be approximately $200,000. However, the respondent hired other tradesmen to do the work, and claims reimbursement from the applicant. He produced the following invoices for removal of damaged material and replacement:

• John Szabo: $37,567.53;

• John Szabo: $19,125.25;

• Ricky Chitaram: $4,245;

• Ricky Chitaram: $3,550;

• Ricky Chitaram: $3,074;

• Home Hardware (kitchen cabinets): $20,735.50;

• G.C. Lounsbury Inc. (furnace water damage repair): $757.53;

219There is a document, unsigned and undated, with no letterhead or any indication as to where it came from, that says “Stone countertop in kitchen & island (London ? First Street) ̴ $4,900.” This appears to be an estimate not an invoice, and I have no idea who it is from. The respondent testified that he paid for a stone countertop, but also testified that he did not have a stone countertop before the flood. There is no evidence as to what the respondent paid for this item. The quality of this document is virtually nil as proof, and I am not prepared to allow it, quite apart from the issue of betterment.

220In addition, the respondent testified that he incurred other expenses, for which he does not have receipts or invoices. In his Closing Submissions he states that he paid $16,000 in plumbing bills, although I have no notes to that effect from his testimony. He rented bins for removal of the debris at a cost of “several thousand dollars, 5 to 10 thousand”. There was a team of people who came to clean up the mess whom he paid for their work. He did much of the work himself on the second floor, where planks in the wood floor had buckled, as well as refinishing areas around the window. He estimates that he spent at least three months, over time, working on this project. The dining room table and chairs came apart and he was unable to fix them. Other furniture had to be disposed of, and some was able to be cleaned and salvaged.

221The quality of this evidence is obviously deficient, and the respondent recognizes this. He argues that, in view of the fact that the total project was estimated to cost $200,000, a damages figure of $150,000 would be reasonable. In my view, while he may well have spent that much repairing his house, he has failed to prove it with reliable evidence. If he failed to keep invoices or records of the expenses he incurred at the time, there is no reason why he could not have produced cancelled cheques or records of cash withdrawals as some evidence of what he spent.

222The invoices he has produced, other than the document relating to the stone countertop, total $89,054.81. I accept his evidence that he spent considerably more than that to complete the restoration, and for that reason I am prepared to top up his damages award, but not to the extent he seeks. I fix his damages at $120,000. He shall be credited in that amount as against the equalization payment he owes to the applicant.

DAMAGE TO COMPUTER EQUIPMENT:

Damage to Computer Equipment

223The respondent was arrested on August 21, 2012 and held overnight in jail. Two assistants remained at the premises when he was taken away. As stated in his Closing Submissions, “it is unclear whether the Applicant was at the business at the time but there is no issue as to the fact that she did have a key for the premises.”

224When the respondent returned to his office the next day after being released, the computers were not working. He contacted a computer technician, Drew Mannen, who attended on site. The respondent testified that Drew Mannen told him that the malfunction had occurred because wires and connections had been switched/changed among various components in the system, and that the hard drives were empty. The respondent wrote out a statement to this effect, dated August 30, 2012, and it was signed by Mr. Mannen. It was filed as an exhibit.

225Mr. Mannen testified at trial, and completely contradicted the contents of that statement. He testified that there was no sign of intentional damage. The computers were old, running Windows XP, and were slow and hard to function. He said there was no physical damage or software damage, “they were just old”. He identified another letter dated November 21, 2021, which he signed, and which has also been filed as an exhibit, where he said “I would like to retract my statement from the letter dated August 30, 3012 which I signed for Dr. Liwanpo.” That letter stated that he looked at the computers and determined that they were very slow, which was related to them being very old and outdated. The machines showed no signs of intentional damage. They both functioned but were not usable because of their age.

226This claim must fail. First of all, there is no proof that the applicant was even at the premises at the relevant time and in a position where she could damage the computer equipment and software. In contrast to the flood at the matrimonial home, where it was clear on the evidence that the applicant had exclusive possession and control of the house at the material time, and that the cessation of gas consumption coincided with her leaving, the respondent here is able to prove nothing more than that the applicant had a key to the premises. That falls far short of proving that she damaged his equipment, if indeed it was damaged at all. In that regard, Mr. Mannen’s recantation of the statement he signed in August 2012 undermines the respondent’s case on this issue, to the point where he has failed to meet the burden of proof.

227This claim is dismissed.

THE CLAIM FOR PUNITIVE/EXEMPLARY DAMAGES:

The Claim for Punitive/Exemplary Damages

228The respondent claims $50,000 in punitive and/or exemplary damages from the applicant, by reason of the many egregious acts she committed around the time of separation and during the course of this litigation, including failing to answer reasonable questions, withdrawing substantial sums from the joint accounts immediately preceding the separation, overpayment of wages to herself, using the criminal justice system to gain a tactical advantage and fabricating evidence. He cites no authority whatsoever in his Closing Submissions for the proposition that behaviour of this sort gives rise to an entitlement to punitive or exemplary damages.

229I agree that bad behaviour in the conduct of the litigation warrants the censure of the court, but that is normally done through an award of costs. Bad, even egregious, behaviour is, unfortunately, an all too common feature in matrimonial litigation, yet I am unaware that it has ever given rise to an award of punitive or exemplary damages. The fact that the respondent has cited no authority where such an award was made leads me to infer that there aren’t any.

230This claim is dismissed.

MISCELLANEOUS ISSUES:

Miscellaneous Issues

231Toward the end of his written submissions, the respondent raises a number of minor issues with respect to which he seeks relief.

232The first relates to various costs orders that he has previously obtained against the applicant. There are four in total, amounting to $15,000:

• September 18, 2015, per Aston J., where $2,000 in costs was ordered, to be offset against the applicant’s equalization payment;

• February 28, 2020, per Leach J., for $5,000, to be taken into account upon final resolution;

• November 15, 2021, per Nicholson J., for $5,000, which remains unpaid; and,

• November 22, 2021, per Mitchell J., for $3,000, which remains unpaid.

233An order will go that the respondent is entitled to a credit toward the equalization payment due to the applicant in the amount of $15,000.

234The respondent is also seeking a costs order with respect to 50% of the costs of mediation by Janet Whitehead, which occurred in the weeks leading up to the trial. Costs of the mediation were to be equally divided. The respondent has paid his half, in the amount of $3,757.25, but the applicant has not. The respondent is entitled to a credit in this amount, and he will be responsible for paying this amount to the mediator.

235There are other credits claimed by the respondent in his written submissions, beginning at pg. 74, that, in the context of the money involved in this case, barely merit the attention of the court, but I will briefly deal with them. The applicant did not provide any response to these claims in her Reply Submissions:

• On August 21, 2012, the applicant charged a purchase at Coward Pharmacy on the respondent’s account, in the total amount of $774.74, for gift cards and other items for herself. Given that this charge was incurred on the very day of the separation, I am satisfied that it was improper, and the respondent is entitled to a credit in that amount;

• Similarly, on that same date the applicant charged a purchase at Shopper’s Drug Mart on the respondent’s account, in the total amount of $1,488.09, for gift cards and cosmetics. The respondent is entitled to a credit in that amount;

• The respondent claims reimbursement for data charges on the applicant’s cell phone with Rogers, some of which occurred prior to the separation and some shortly after. The respondent is not entitled to a credit for the amount incurred prior to the separation, and the amount incurred after is so small as not to merit the court’s attention;

• On March 12, 2013, the applicant charged, to the respondent’s Bell Canada account, the amount of $953.23, relating to her office phone at the Hamilton Road property. The respondent is entitled to a credit in this amount;

• On December 12, 2012, the respondent paid $1,939.11 to pay off a Desjaradins credit card account that was in his name and that of the applicant, but that he was unaware of. All of the charges on that card were incurred by the applicant. The respondent is entitled to a credit in this amount;

• On August 22, 2012, the applicant incurred charges of $1,200 on a BMO Mastercard in the respondent’s name, with an account number ending in 1427, with respect to which she had a companion card. He claims a credit in that amount. However, he received a credit for the amount owing on that same card of $3,935.48, as at August 28, 2012, as shown on pg. 13 in the “Debts and Other Liabilities” section of the NFP Statement. The process of equalization effectively results in that debt being equally shared by the parties, so I am not allowing a further credit;

• On August 21, 2012, $300 was withdrawn from the joint TD account ending in 258. This account is shown on the NFP Statement with each party having an equal amount, $2,499.92, in this account. There is no evidence as to how or when this money was subsequently divided. As of the date in question, the applicant had the right to withdraw money from this joint account, up to the amount of her equal share. This withdrawal was less than that. The respondent is not entitled to a credit for this withdrawal;

• On November 22, 2021, Mitchell J. made an order to facilitate the disclosure request of the applicant. She also ordered that “the party in who’s favour the disclosure of records in the possession and control of a third party has been ordered is responsible for reimbursing the reasonable costs of the third party.” The respondent requested records from Marcus & Associates from 2012 to 2017 pursuant to that order, and was billed $1,430.58. He is entitled to reimbursement in this amount from the applicant;

• I have already made note of the fact that the applicant paid herself a salary from the medical practice in 2012 totalling $103,142. This was for 8 months’ work, and represents a significant raise from the $80,000 she was paid for the full year in 2011. The respondent claims that he did not agree to the salary increase, and says the applicant should have been paid at the same rate as the previous year. Prorated up to the date of separation, that would amount to about $60,000, so he claims a credit of $43,000. I am not disposed to allow this claim, for three reasons. To begin with, she would have been paid by the professional corporation, not by the respondent personally, and so if any repayment of salary was owed, it would be owed to the corporation. The corporation is not a party to this action, and any claim by it for reimbursement would be statute-barred. I have already taken a similar approach to corporate debts that the applicant is claiming in relation to the Hamilton Road office, in denying her claims. Secondly, the respondent testified that the payment of the applicant’s salary was a very “loose arrangement”, with no written contract or other concrete way of determining what her proper salary should have been. Third, the fact that she was being well-paid for her contribution to the medical practice was already taken into account in denying her any compensatory support.

236The total of the miscellaneous credits that I have allowed is $25,343. The respondent will be allowed a credit toward the equalization payment in this amount.

RESULT:

Result

237For the above reasons, judgment will issue as follows:

1. The respondent shall pay to the applicant an equalization payment in the amount of $1,544,025, subject to the credits outlined below, and in the manner set out below.

2. The respondent shall receive a credit toward the equalization payment in the following amounts:

a) Post v-day adjustments in the amount of $20,000;

b) A credit for interim spousal support paid from March 1, 2020 to the present time, at the rate of $2,178 per month, less a deduction for income tax of 40%, in an amount to be calculated by counsel;

c) Damages for the flood to the matrimonial home in the amount of $120,000;

d) Miscellaneous credits in the amount of $25,343.

3. An order will go that the two jointly-owned Florida properties be listed for sale within 30 days, at a price and upon terms to be agreed by the parties. Failing such agreement, either party is at liberty to apply to this court for directions. The net proceeds of sale shall notionally be divided equally between the parties, but the respondent’s one-half share shall be paid to the applicant, after conversion to Canadian currency, in partial satisfaction of her equalization payment.

4. Following such payments, the respondent shall pay the balance of the equalization payment within 30 days.

5. Postjudgment interest shall begin to accrue on the net equalization payment as of the date of this judgment. There shall be no prejudgment interest awarded to the applicant on the equalization payment.

6. Both parties shall file their 2020 US income tax returns within 60 days, in order to facilitate the release of withholding tax relating to the Balmaha property. Both parties shall file their 2022 US income tax returns at the earliest permissible opportunity, in order to facilitate the release of any withholding tax relating to the two jointly-owned properties that are to be sold.

7. The applicant’s claim for child support with respect to Ryan Ong is dismissed.

8. The applicant’s claim for ongoing spousal support, and for an adjustment of interim spousal support, is dismissed. The obligation of the respondent to pay spousal support is terminated effective February 28, 2020.

9. The respondent’s claim for an adjustment of interim spousal support prior to March 1, 2020 is dismissed.

10. The respondent’s claim for damage to his computer equipment and software is dismissed.

11. The respondent’s claim for punitive or exemplary damages is dismissed.

12. The parties are declared to be the sole owner of any other property in his or her possession and control, free of any claim by the other party.

13. All other claims by either party are dismissed.

238I encourage the parties to resolve the issue of costs. If they are unable to do so, I will accept brief written submissions from the applicant within 20 days, with the respondent’s response to follow within 15 days thereafter, and any reply to follow within 10 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.

239If I have made any mathematical errors in these reasons, counsel are at liberty to bring that to my attention in their submissions as to costs.