COURT FILE NO.: FS-19-9498-00 (Toronto)
DATE: 20220915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Koblah Dosu
Applicant
– and –
Lydia Fifame Dosu
Respondent
Guy Hunter, for the Applicant
CJ A. Khanlarbig, for the Respondent
HEARD: May 9, 10, 11, 12, 13 and June 14, 2022, by video conference; written closing submissions July 29 to August 17, 2022
R. A. Lococo J.
REASONS FOR JUDGMENT
I. Introduction
[1] The applicant John Dosu and the respondent Lydia Dosu separated in 2018 after being married for 27 years. They have an adopted son (referred to in these Reasons as the parties’ “son” or “child”), who is now 13 years old.
[2] Lydia and the parties’ son continue to reside in the former matrimonial home, a three-bedroom condominium townhouse that the parties jointly own. John resides in a rented three-bedroom apartment with his daughter from an extra-marital relationship (referred to in these Reasons as John’s “dependent daughter”), who is 17 years old.
[3] John and Lydia were both born in Africa and continue to have extended family in Ghana and elsewhere in west Africa. Lydia has family in Benin, where her mother resided until her death in 2009. In addition to their former matrimonial home in Toronto, the parties have interests (or claim an interest) in real property in Ghana and (in Lydia’s case) Benin. The African properties are the subject of litigation that Lydia brought in Ghana, referred to further below.
[4] John is 77 years old. He says (without supporting evidence) that he has health issues, including type 2 diabetes requiring medication. He immigrated to Canada as a young man. Starting in 1973, he was employed full time by Pepsi and predecessor soft-drink companies. He retired in 2015, when he turned 70. John has two independent adult children and four grandchildren, all of whom reside in Canada.
[5] After immigrating to Canada, John travelled to Ghana periodically. On one of his visits, he was introduced to Lydia. They married in Ghana in 1991. John returned to Canada and sponsored Lydia for immigration. She joined him in Canada in 1992. In 1998, they purchased the former matrimonial home in Toronto, where they resided together until their separation.
[6] Lydia is 57 years old. Since 1998, she has been a full-time employee of York University, currently as a bilingual (French/English) department secretary. The parties’ adopted son is her only child.
[7] Since about 1994, John has owned a residential property in Accra, Ghana, where he stays when visiting Ghana. John also has an interest in commercial property in Ghana, the nature of his interest being a matter of dispute. Lydia also claims an interest in those Ghanaian properties.
[8] On one of John’s visits to Ghana, he met and started a relationship with Matilda, local woman. Their daughter was born in 2005. Lydia became aware of John’s daughter in approximately 2007. John provided funds to Matilda for their daughter’s support, including her private school fees in Ghana. In January 2021, their daughter moved to Toronto to live with John and attend high school. Her mother remains in Ghana, where she lives (with other members of her extended family) in the house that John owns.
[9] The parties’ son was born in Benin in 2009, the same year that Lydia’s mother died. Lydia travelled to Benin for her mother’s funeral and learned that the child was available for adoption. After returning to Canada, Lydia made the necessary arrangements (and provided the funding) for the child’s adoption, with the assistance of legal counsel and family in Africa. She travelled to Benin in 2013 to pick up the child and returned to Canada with him.
[10] In December 2017, John travelled to Ghana without Lydia. Lydia’s initial position (which John disputed) was that the parties separated at that time. Lydia decided that she would also travel to Ghana, with the intention of starting legal proceedings against John in Ghana. Lydia’s evidence was that she commenced proceedings against him in Ghana in January 2018 before returning to Canada but was unable at that time to serve John, who was evading service. Lydia maintains that her Ghanaian counsel was later granted permission to serve John by posting the originating documents at the gate of John’s residence in Accra. Lydia attests that in February 2019, John was served by this method with “official divorce pleadings” (to quote her affidavit dated October 4, 2021 – trial exhibit 34). She also testified that the Ghanaian litigation related to the African properties, without confirming (or denying) that she was seeking a divorce in Ghana or placing in evidence the pleadings for that litigation.
[11] In April 2018, there was a fire in the kitchen in the parties’ former matrimonial home in Toronto. Lydia arranged for repairs but then learned that the home insurance coverage had lapsed because the premiums had not been paid while John was in Africa.
[12] In May 2018, John returned to Canada and on May 11, 2018, attempted to enter the former matrimonial home. Lydia called the police. John was arrested and charged with assault. One of the conditions of his release was that he reside with his adult daughter. John maintained that the parties separated on that date. The criminal case against John was withdrawn in the summer of 2019. John rented a three-bedroom apartment, where he resides with his dependent daughter as well as another adult who shares the rent.
[13] On April 23, 2019, John commenced his application in this court, seeking a divorce and corollary relief that included custody of and access to their son, child support, spousal support, equalization, sale of the former matrimonial home and occupation rent. In her Answer dated July 29, 2019, Lydia disputed John’s financial claims and made her own claims for relief that included a divorce, custody of their son, child support, spousal support, equalization, unequal division of marital assets, and exclusive possession of the former matrimonial home.
[14] After at least two case conferences and a contested motion, John was granted in-person unsupervised access to the parties’ son on an interim interim basis, as set out in Kristjanson J.’s endorsement dated December 5, 2019. On consent, he was also ordered to pay interim child support to Lydia in the amount of $435 per month, based on his 2018 (Line 150) income of $46,878. By endorsement dated April 15, 2020, following written submissions, Kristjanson J. awarded full indemnity costs to John in the amount of $5,841.85, citing the unreasonableness of Lydia’s actions relating to the parenting time motion.
[15] At the (fourth) case conference on March 10, 2021, with the assistance of counsel from the Office of the Children’s Lawyer, the parties settled the parenting issues on a final basis, as set out in draft minutes of settlement appended to Faieta J.’s case conference endorsement. The minutes of settlement provide Lydia with primary parenting and decision-making responsibility for the parties’ son and set a schedule for the parties’ parenting time with him. Faieta J.’s endorsement authorized the issuance of a final order in accordance with the minutes of settlement. To my knowledge, a formal order to that effect has not yet been taken out. Noting that this matter needed to move to trial at the earliest reasonable time, Faieta J. also set a trial date in June 2021 and ordered that no further motions may be filed by either party. As well, Faieta J. ordered that John’s child support arrears of at least $5,565 (accrued since Kristjanson J.’s December 2019 endorsement) be offset against Lydia’s unpaid costs of the parenting time motion.
[16] At the first trial management conference on May 14, 2021, Faieta J. determined on a final basis (on consent) that the parties’ date of separation was May 11, 2018. He also postponed the trial until October 2021.
[17] After two further adjournments (because of counsel’s illness), the trial proceeded by video conference for six days in May and June 2022. Written closing submissions were completed in August 2022. The parties provided their own trial evidence by way of affidavit and oral testimony. As their only other witness, each party called a real estate appraiser with respect to the value of the former matrimonial home in Toronto. On consent, the valuation reports they prepared were made trial exhibits.
[18] During the trial, the parties agreed that for purposes of determining the division of marital property (equalization), the parties’ African properties would be omitted from consideration, on the basis that disputes relating to those properties would be more appropriately determined by courts in Africa. However, their agreement does not extend to income derived from African properties with respect to determination of the parties’ income for support purposes.
[19] The remaining matters to be determined are outlined below:
a. Divorce: John seeks a divorce. Lydia says that the divorce claim should be stayed until the litigation in Ghana is determined, to avoid prejudicing her rights and entitlement relating to properties in Africa.
b. Imputation of income for support purposes: Lydia says that John’s income for support purposes should include imputed income relating to his African properties, relying in part on his failure to provide required disclosure relating to those properties. John disputes there is any evidentiary basis for imputing income to him. He also refers to Lydia’s failure to provide required disclosure relating to her property in Benin, submitting that if income is imputed to him, fairness would require income to be imputed to her as well.
c. Spousal support: Each of the parties claims spousal support from the other and denies the other’s entitlement to spousal support. Among other things, the parties’ income for support purposes remains in dispute.
d. Child support and s. 7 expenses: There is no dispute that (i) John has an obligation to pay child support to Lydia for the parties’ son, and (ii) the parties should share special or extraordinary expenses (“s. 7 expenses”) in proportion to their respective incomes in accordance with s. 7 of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”). The amounts payable remain to be determined.
e. Equalization: John seeks equalization of the parties’ net family properties. Lydia disputes (among other things) John’s proposed “date of marriage” deductions and seeks an unequal division of marital assets as well as certain post-separation adjustments.
f. Matrimonial home: John seeks the sale of the Toronto matrimonial home. He also seeks occupation rent relating to Lydia’s occupation of in the Toronto matrimonial home since the parties’ separation. Lydia disagrees and seeks a vesting order in her favour with respect to John’s 50 per cent interest in the matrimonial home.
[20] In the balance of these Reasons for Judgment, I address the above matters in turn.
[21] As explained below, the final order will grant the parties a divorce. No income is being imputed to either party relating to their African properties. Therefore, John’s child support obligation and the parties’ sharing of s. 7 expenses will be determined by reference to the parties’ income from Canadian sources. Each party’s claim for spousal support from the other is being dismissed. The parties’ net family properties will be equalized, substantially as set out in Lydia’s proposed Net Family Statement. Lydia’s claim for unequal division of the parties’ net family properties and post-separation adjustments are being dismissed, as is John’s claim for occupation rent. The matrimonial home is ordered sold and the net proceeds divided between the parties, subject to certain deductions from John’s share for amounts owing to Lydia under the final order.
II. Divorce
[22] In their pleadings, both parties request a divorce. Neither party sought to amend their pleadings to withdraw that claim.
[23] John continues to seek a divorce order. He wishes to marry Matilda, his long-time love and the mother of their dependent daughter. He testified that he wants to sponsor Matilda for immigration to Canada, to assist in caring for their daughter as well as caring for him in the years he has left.
[24] Lydia’s position is that the divorce claim should be stayed until determination of the litigation she commenced in Ghana. She maintains that her rights and entitlement to any property claim she has in Africa will be affected if a divorce is granted in Canada before the Ghana litigation is determined.
[25] In particular, in her affidavit dated October 4, 2021 (trial exhibit 34), Lydia states that “being [Ghanaian] and being legally represented in our family proceedings in Ghana, [I am] well informed of the governing matrimonial laws and real estate laws of the country. According to the said laws, if our marriage is terminated and we are divorced, I, as a wife, will lose my rights to any assets accumulated during the marriage.” To support that position, she appended to her affidavit a letter from her Ghanaian legal representative dated September 29, 2021, with the subject line: RE: DOSU V. DOSU, CANADIAN DIVORCE IMPLICATIONS. (By its terms, that letter responds to a letter from Lydia’s Canadian counsel dated September 27, 2021, which was not tendered in evidence.)
[26] The letter from the Ghanaian law firm does not confirm Lydia’s oral evidence. The operative part of the letter provides the following advice:
a. In light of the reciprocal enforcement of judgments, the two countries Ghana and Canada being common law countries, the orders can only have an effect after they have been adopted and registered under the High Court civil procedure Rules.
b. Similarly, Canadian Court orders cannot have any effect unless they are adopted and registered under the Ghana High Court rules before they can be enforced. [Citation omitted.]
[27] Lydia has no legal training. Even though Lydia has local legal representation in the Ghanaian proceedings, there was no explanation as to why independent evidence was not provided to confirm Lydia’s position that she would lose all rights to her African properties if a divorce were granted in Canada. In all the circumstances, I am not persuaded that John’s divorce claim should be stayed on that basis.
[28] The parties, who have been separated for over four years, have grounds for divorce: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8(2)(a). It is clear from their evidence and conduct that there is no possibility of reconciliation: s. 10. John has been required to pay interim child support to Lydia for the parties’ son since December 2019, and the final order will provide for child support on a final basis, addressing the statutory requirements in s. 11(1)(b). The Certificate of Marriage was made a trial exhibit and the required clearance certificate has been obtained. In these circumstances, I see no impediment to proceeding with a divorce without further delay.
[29] Accordingly, the final order will grant a divorce, to take effect in 31 days from the date of these Reasons for Judgment.
III. Imputation of Income for Support Purposes
[30] Lydia seeks child support from John, as well as his proportionate share of s. 7 expenses. John does not dispute his obligation to pay child support and share s. 7 expenses. As well, each party claims spousal support from the other. It is therefore necessary to determine the parties’ respective incomes for support purposes.
[31] The principal area of dispute with respect to the parties’ income relates to their interests in real property in Africa. By agreement between the parties, those properties are being excluded from consideration when determining the division of marital property (equalization). However, that agreement does not extend to income derived from African properties with respect to determination of their income for support purposes.
[32] Putting aside that issue, determining each party’s income for support purposes should be relatively straight forward. Lydia is a salaried employee, whose income varies within a narrow band year to year. Being retired, John has pension income from his previous employment with Pepsi and collects Canada Pension Plan (CPP) and Old Age Security (OAS) benefits. The parties’ Canadian income tax returns do not disclose significant income from other sources, apart from withdrawals from registered plans. Neither party has declared any income from African properties on their Canadian income tax returns, as they would be required to do if they had any such income.
[33] The properties in question include the following:
a. A two-story residential property at Adjirigano, Accra, Ghana. The property was purchased in 1994, in John’s sole name. John says he purchased the property with funds he inherited from his father (which Lydia disputes). Lydia says she is a joint owner of the property, which they purchased to build a future retirement home for the parties (which John denies). The residence is currently occupied (rent free) by Matilda, the mother of John’s dependent daughter, along with members of her extended family. Their dependent daughter also lived there with her mother until 2021, when their daughter came to Canada to live with her father and attend high school.
b. A commercial property with ten units or stalls at Ogbojo, Madina, Accra, Ghana. This property is occupied by a tenant, who apparently uses it as a warehouse for coffee. John says any income generated from this property is used for its upkeep and maintenance. Lydia says she jointly owns this property with John (which John denies).
c. A residential property in Cotonou, Benin. Lydia’s mother resided at this property prior to her death in 2009. Lydia says she purchased the property in 1988, jointly with her mother (which John disputes), and is now the sole owner. The property is currently occupied (rent free) by Lydia’s sister and cousin.[^1]
[34] Lydia submits that income should be imputed to John relating to the properties in Ghana. She says that the Accra residence could reasonably be utilized to generate income by renting it to paying tenants, rather than allowing Matilda and her extended family to live there rent free. She provided her own estimate of US$2,000 per month as the rental value of the property.
[35] In cross examination, John denied that the Accra residence, if rented out, would generate anywhere near that amount in rent. He also disputes that it is reasonable to expect that the property be rented out, noting that he stays there when he is in Ghana and expects that his daughter (when on school break) will stay there when visiting her mother. He also notes that Lydia’s sister and cousin similarly live rent free in Lydia’s residence in Benin, consistent with family practice in Africa.
[36] Lydia also submits that income should also be imputed to John with respect to rent from the Ogbojo commercial property. The only evidence of the property’s rental value she was able to provide was a 2009 lease agreement, which she found among John’s belongings in the matrimonial home (which Lydia “ransacked” after he left for Ghana, according to John’s counsel). That agreement relates to the rental of two (out of ten) units or stalls in the Ogbojo property, for a period of six years. The rental amount was expressed in local Ghanaian currency (cedi). In Lydia’s counsel’s closing submissions, she provided calculations of estimated rental income for the whole property (ten units), based on various alternative interpretations of the lease agreement. These calculations included conversion of local currency amounts to Canadian dollars and adjusting for local inflation (using publicly available data) and multiplying by five to extrapolate to ten rental units. Depending on the calculation approach taken, the estimated rent for the ten units (in Canadian dollars) would be in the range of $32,000 to $175,000.
[37] John disputes that those calculations, noting (among other things) that they fail to take into account a significant devaluation of the Ghanaian currency (converting from “old” cedi to “new’ cedi), with the result that Lydia’s amounts are vastly exaggerated. He also says that any rental amount generated was used for property upkeep and maintenance, although he did not provide any documentary evidence to support that position. In a Request for Information, Lydia requested disclosure of various documents relating to the Ogbojo property, including any rental agreements and proof of rent payments. John did not provide those documents. He described the disclosure requests as “over the top”, “unnecessary” and “unfair”, and also alleged that Lydia has provided incomplete disclosure relating to her property in Benin.
[38] The starting point for calculation of a spouse’s income for support purposes is the payor’s “total income” (as set out in Line 150 of the spouse’s income tax return), subject to certain adjustments: Guidelines, ss. 15-20. Under s. 19 of the Guidelines, the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including the following:
a. The spouse’s property is not reasonably utilized to generate income: s. 19(1)(c); and
b. The spouse has failed to provide income information when under a legal obligation to do so: s. 19(1)(d)
[39] Lydia relies on both those considerations to support her request for imputation of income to John relating to the African properties. With respect to failure to provide income disclosure, she also relies on Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L (7th) 6, at paras. 11-13. In that decision, the Court of Appeal upheld the striking of the appellant husband’s Answer for failure to provide fundamental financial disclosure to the other side after repeated court orders extending the time for doing so. In that context, the Court of Appeal described the duty to disclose financial information as the “most basic obligation in family law” that is “automatic” and not dependant on “court orders…to obtain production.”
[40] Lydia’s counsel rejected as irrelevant John’s allegations of incomplete disclosure about Lydia’s Benin property, arguing that John was barred from seeking to impute income to Lydia because he failed to raise that claim in his pleadings. In response, John’s counsel notes that Lydia was not taken by surprise by that claim, relying on conference endorsements (and at least one disclosure order) relating to both parties’ ownership of (and income from) their African properties.
[41] As explained further below, I have decided not to impute any income to either party relating to properties in Africa.
[42] In order to impute income to a party for support purposes, it is necessary for the court to have “some evidentiary basis for imputation…. The amount to be imputed must still be grounded in the evidence” and “reasonable in the circumstances”: see Michaud v. Kasali, 2016 ONSC 443, 74 R.F.L. (7th) 119, at paras. 48-49.
[43] There is no evidence of any rental income generated to date from the Accra residence. To the extent it is relevant, the same is true of Lydia’s residential property in Benin. As well, there is no reliable evidence relating to the rental income that could be generated from those properties. We only have Lydia’s testimony as to what she believes the Accra property would rent for, which John disputes. There is no evidence that the parties, who have lived in Canada for decades, have any expertise relating to the Accra residential rental market. In those circumstances, without taking into account the parties’ other submissions, I would not impute any income to the parties relating to the failure to utilize those residential properties to generate income.
[44] I have reached the same conclusion with respect to the Ogbojo commercial property in Accra. The only basis I have for determining rental income for that property would be the highly speculative calculations in the written submissions of respondent’s counsel, (referred to previously). I am not satisfied that the evidence justifies imputing any income to John from the Ogbojo property on that basis.
[45] In making those determinations, I should not be taken as minimizing the importance of fulsome financial disclosure in the family law context. However, in this case (unlike in Roberts), it appears that extensive disclosure has been provided by both parties at least with respect to their financial circumstances in Canada, including their Canadian income, assets and bank account transactions. In my view, that disclosure is generally consistent with the parties’ relatively modest living circumstances in Canada and does not indicate an unexplained supplementary source of income for either party. Both parties have also provided financial disclosure relating to properties in Africa, albeit with some evident gaps in the information. In all the circumstances, those information gaps do not justify imputing income to either party in relation to the African properties.
IV. Spousal Support
A. Legal Principles
[46] Upon application, the court may make an order requiring a spouse to pay a lump-sum or periodic sums for the support of the other spouse: Divorce Act, s. 15.2(1). In making a spousal support order, the court is required to consider 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: s. 15.2(4).
[47] The objectives of a spousal support order include the following:
a. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown: s. 15.2(6)(a);
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: s. 15.2(6)(b);
c. Relieve any economic hardship of the spouses arising from the breakdown of the marriage: s. 15.2(6)(c); and
d. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: s. 15.2(6)(d).
[48] The law recognizes three conceptual grounds for entitlement to spousal support: (i) compensatory; (ii) non-compensatory; and (iii) contractual: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 15. The theoretical bases for compensatory and non-compensatory support are provided by competing models of marriage and marriage breakdown (as described further below). Both grounds/models permit individual variation by contract, providing the third (contractual) basis for support entitlement: Bracklow, at para. 25.
[49] Compensatory spousal support is generally intended to provide the recipient spouse with compensation for the loss of economic opportunity arising from the marriage or its breakdown, including the roles adopted during the marriage. Compensatory support is based on an “independent” or “clean-break” model of marriage and marriage breakdown, which stresses the independence of each party to the union. Each spouse is an autonomous actor who retains their economic independence throughout marriage. Upon the marriage’s termination, the spouses move on with their lives, after compensating (or receiving compensation from) the other spouse for any economic costs of the marriage or its breakdown: see Bracklow, at paras. 24, 25, 27. Under this theory, “it is the duty of dependent spouses to strive to free themselves from their dependencies and to assume full self-sufficiency, thereby mitigating the need for continued compensation”: Bracklow, at para. 29.
[50] Non-compensatory spousal support (sometimes referred to as the “means and needs” approach) is based on the competing “basic social obligation” model of marriage, which stresses the interdependencies (not easily unravelled) that marriage creates: Bracklow, at paras. 27, 30. Upon marriage breakdown, primary responsibility falls on the spouse with the “means” to do so to provide for the spouse who “needs” support: Bracklow, at paras. 23, 25. For example, a need-based support award may be appropriate where the recipient spouse is unable to become self-sufficient by reason of illness or disability, but a non-compensatory award is not restricted to such situations: Bracklow, at paras. 44-45. Depending on the circumstances, the obligation to pay “just support” may “arise out of the marriage relationship itself” as a “fundamental martial obligation” rather than being compensatory or contractual: Bracklow, at para. 49.
[51] As discussed in Bracklow, at para. 32, the spousal support provisions of the Divorce Act require the court to consider compensatory and non-compensatory (as well as contractual) grounds for entitlement, even though they are based on divergent models of marriage that raise competing policy considerations. In these circumstances, when determining spousal support, “It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.”
B. Parties’ Positions
[52] Each of the parties claims spousal support from the other. Both parties justify their entitlement on both compensatory and non-compensatory (need-based) grounds.
(a) John’s spousal support claim
[53] John submits that he is entitled to compensatory spousal support in light of the benefits he conferred on Lydia throughout the marriage. He says that, among other things: (i) he paid the majority of the mortgage payments and other household expenses, for their joint benefit, while Lydia retained most of her income for her own needs or to support her relatives in Benin; (ii) he sponsored Lydia’s immigration to Canada and supported her in upgrading her English and secretarial skills, which enabled her to obtain the well-paid, unionized work she has today and afforded her “a better living and a better lifestyle”; (iii) Lydia at 57, has the opportunity to continue to work and enhance her pension entitlement upon retirement, whereas John at 77, has no further opportunity to do so; (iv) John postponed his retirement to age 70, to the family’s financial benefit; and (v) although their son was born in 2009, Lydia’s contribution relating to his care only started in 2013 after his adoption.
[54] John also argues that he is entitled to spousal support on non-compensatory (need-based) grounds, noting the disparity between his income and that of Lydia in each year since their separation in 2018. The amounts of the Line 150 “total income” for each of them, as set out in their respective income tax returns (or notices of assessment), were as follows:
a. In 2018, $46,787 for John, $55,821 for Lydia;
b. In 2019, $41,709 for John, $71,102 for Lydia (including a RRSP withdrawal of $12,971); and
c. In 2020, $42,119 for John, $59,886 for Lydia.
[55] Going forward, John says that his annual income will fall to about $36,500, since he will no longer have funds available for withdrawal from registered funds, whereas Lydia’s expected annual income would be $60,000 or more.
(b) Lydia’s position
[56] Lydia seeks a lump sum spousal support award from John, arguing there is a high risk he would default in paying periodic support.
[57] Lydia says that she is entitled upon separation to spousal support on a compensatory basis because of her loss of economic autonomy that she gained during the parties’ 27-year marriage. After paying the expenses for their son’s adoption in 2013, Lydia took a one-year maternity leave and assumed the role of primary caregiver, continuing in that role after returning to full-time employment in 2014. Since 1998, the parties had a dual income, with John making substantially more than Lydia, allowing them to enjoy a comfortable lifestyle. Without the dual income, Lydia has been unable to enjoy the same standard of living that she did during their marriage and had to make withdrawals from her RRSP and line of credit to meet expenses.
[58] During their marriage, John paid substantially all the mortgage payments and related expenses until December 2017, when Lydia began making the mortgage payments while John was in Ghana. John resumed paying the mortgage in June 2018 until November 2019, when the parties agreed that he would start paying interim child support and pay only half of the mortgage payments. He continued to pay half of the mortgage until July 2021, when he unilaterally ceased doing so. Lydia was left to pay all household and child-related expenses herself with no assistance from John.
[59] Lydia also argues that her ability to be employed after separation should not preclude her entitlement to spousal support on a compensatory basis: see Chutter v. Chutter, 2008 BCCA 507, 86 B.C.L.R. (4th) 233, at para. 71; Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 882.
[60] Lydia also submits that she is entitled to spousal support on non-compensatory or need-based grounds. To establish her “needs” and John’s “means”, she relies on the disparity in income between John and her that she says would exist after imputing income to John from his African properties.
C. Analysis and Conclusion
[61] For the reasons below, I have decided that neither party has established their entitlement to spousal support on either a compensatory or non-compensatory basis.
(a) Compensatory spousal support
[62] John’s submissions relating to his entitlement to compensatory support place significant reliance on the fact that John disproportionately bore the household financial burden during the marriage, including the mortgage payments. I would consider that to be the expected outcome when one spouse earns significantly more than the other, which was the case before John retired. The other spouse’s non-financial contributions also need to be considered, including household responsibilities and those relating to the care of the parties’ son, which fell primarily on Lydia. To the extent that John relies on the prospective disparity relating to the parties’ opportunity to earn employment income and accumulate pension entitlement, that disparity is the result of John’s age and retirement status, rather than being related to the marriage or its breakdown.
[63] Taking those considerations into account, I do not see any reasonable basis for John’s claim for compensatory spousal support.
[64] Turning to Lydia’s claim for compensatory spousal support, she also refers to the financial benefits provided by John’s superior income during the marriage, which provided her with a comfortable lifestyle, contrasted with her more limited means since separation. However, if the parties had not separated, John’s employment income would no longer be available to the parties to support their previous lifestyle, given his age and retired status. Therefore, the extent to which Lydia has suffered a loss of economic advantage related to the marriage or its breakdown is in serious issue.
[65] When considering Lydia’s entitlement to compensatory spousal support, it is also relevant that John sponsored Lydia for immigration to Canada and supported her while she retrained, which enhanced her employment opportunities. While I agree with Lydia that her continued employment does not preclude her from claiming compensatory support, one of the objectives of a spousal support order remains to promote the “economic self-sufficiency of each spouse within a reasonable time” (Divorce Act, s. 15.2(6)(d)), consistent with the “independent” or “clean break” model of marriage and marriage breakdown that underlies the compensatory theory of support. Arguably, Lydia is in a better position to support herself independently as a result of her marriage, which should be weighed against the economic challenges resulting from the marriage’s breakdown.
[66] Taking the forgoing considerations into account, I am not satisfied that either party has established their entitlement to spousal support on a compensatory basis.
(b) Non-compensatory spousal support
[67] Turning now to the parties’ claims for non-compensatory spousal support, the evidence indicates that, Lydia will continue to earn employment income, while John will be dependent on limited pension income. Lydia’s income is therefore expected to be higher than John’s income as long as Lydia continues to be employed. As well, as indicated further below, both parties will have access to the proceeds of the sale of the matrimonial home, which would provide a source of funds for future accommodation and other living expenses. In Lydia’s case, she will continue to have primary responsibility for the care of the parties’ son (now 13), while John will be responsible for the care of his dependent daughter (who is 17).
[68] In all the circumstances, including my decision not to impute any income for support purposes to John from African properties, I am not satisfied that Lydia has established that she “needs” spousal support from John that he has the “means” to provide. As well, I do not consider any disparity between Lydia’s “means” and John’s “needs” to be sufficient to justify a spousal support order in John’s favour.
[69] Taking the forgoing considerations into account, I am not satisfied that either party has established their entitlement to spousal support on a non-compensatory basis.
[70] Accordingly, I am dismissing each party’s claim for spousal support against the other.
V. Child Support and s. 7 Expenses
[71] There is no dispute that John has an obligation to pay child support to Lydia for the parties’ son. As well, the parties agree in principle that they should share s. 7 expenses in proportion to their respective incomes.
A. Child Support Payments
[72] Pursuant to Kristjanson J.’s endorsement dated December 5, 2019, John is required to pay interim child support to Lydia in the amount of $435 per month based on his 2018 (Line 150) income of $46,878. Prior to that order, John did not make any child support payments to Lydia.
[73] In John’s affidavit sworn October 3, 2021 (trial exhibit 8), he acknowledged his obligation to pay child support from the date of separation (along with his share of any s. 7 expenses), proposing to do so out of the proceeds of sale of the Toronto matrimonial home by way of an advance payment of two to three years of support. The amounts that John says have been paid (or should be payable) in relation to child support (to Lydia) and spousal support (to John) are set out in a chart in John’s initial written closing submissions. In that chart, John acknowledges that he owes child support to Lydia for seven months in 2018, that is, commencing June 1, 2018, the first of the month following the date of separation. I agree that this date is the appropriate commencement date for the payment of child support for the parties’ son.
[74] As explained further below, the final order will require John to pay child support to Lydia for the parties’ son on the first of each month. The commencement dates and amounts are set out below. Any interim child support payments John made pursuant to Kristjanson J.’s endorsement dated December 5, 2019, are to be credited against those amounts.
a. Commencing June 1, 2018, $435 per month is payable, based on John’s 2018 income of $46,878,
b. Commencing January 1, 2019, $378 per month is payable, based on John’s 2019 income of $41,709,
c. Commencing January 1, 2020, $382 per month is payable, based on John’s 2020 income of $42,119,
d. Commencing January 1, 2021, $484 per month is payable, based on John’s 2021 income of $52,547, and
e. Commencing January 1, 2022, $347 per month is payable, based on John’s estimated 2022 income of $39,000.
[75] Child support payable for each of 2018, 2019 and 2020 is based on John’s income for the relevant year, as set out in Line 150 “total income” in the notice of assessment or reassessment for the relevant year.
[76] Child support for 2021 is based on John’s 2021 income of $52,547, determined by adding together the amounts set out in his T4 income information slips to be attached to his 2021 income tax return, which had not yet been filed when he provided his evidence. John’s T4 information slips related to RRIF withdrawals ($15,097.68), his Pepsi (Teamster’s) pension ($14,737.92), CPP ($14,725.44), OAS ($7,486.71) and COVID benefits ($500).
[77] Child support for 2022 is based on John’s estimated 2022 income of $39,000. John’s evidence was that his capacity to make further withdrawals from registered funds was nearly exhausted, since only $1,975 remained in RRIFs and locked-in funds as of early 2022. His remaining sources of income after 2022 were therefore limited almost entirely to his Pepsi (Teamsters) pension, CPP and OAS.
[78] Lydia’s counsel argued that John’s child support obligation should be secured by a life insurance policy payable to Lydia for their child’s benefit in the event of that John dies while subject to the obligation to support his son. In circumstances in which a payor parent is employed, the parent is often required to obtain life insurance for this purpose as may be available as part of their employee benefits. In this case, John is 77 years old, retired and says he has ongoing health issues. Therefore, there is an issue as to his insurability, at least at a reasonable price.
[79] In these circumstances and taking into account John’s financial position, I have decided not to require him to obtain a life insurance policy to secure his child support obligation. However, to provide at least a modest degree of assurance relating to payment of child support, the final order will adopt a form of John’s proposal for prepayment of child support for a period of time out of the net proceeds upon sale of the matrimonial home, as set out later in these Reasons for Judgment.
[80] The final order will also provide that by June 30 each year, each party shall provide the other with the income and other information required by s. 25 of the Guidelines with respect to the previous calendar year, including the party’s complete personal income tax return and every notice of assessment and reassessment, such obligation to remain in effect for as long as the parties’ son is a child within the meaning of the Guidelines. This income disclosure is intended to permit the updating as of July 1 each year of John’s monthly child support payments (as well as the parties’ proportionate share of s. 7 expenses) based on the parties’ respective incomes for the previous calendar year.
B. Section 7 Expenses
[81] A child support order may provide for the payment of all or any portion of special or extraordinary expenses relating to the child, taking into account the expense’s necessity in relation to the child’s best interests and its reasonableness in relation to the spouses’ and child’s means and the family’s spending pattern prior to the separation: Guidelines, s. 7(1). The guiding principle in determining the amount of an expense is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense any contribution from the child: s. 7(2).
[82] Consistent with s. 7(2), the final order will require the parties to share s. 7 expenses relating to their son in proportion to their respective incomes, as noted further below. While the parties do not dispute in principle that such an order is appropriate on a prospective basis, their closing submissions express divergent views relating to s. 7 expenses incurred to date.
[83] Lydia’s closing submissions state that she incurs $4,000 to $5,000 per year in s. 7 expenses for their son, which would include $2,000 in annual fees for their son’s soccer program. Her closing submissions also state that the total amount incurred since the parties’ separation was $11,225, consisting of $4,500 for soccer, $1,400 for math tutoring and $5,325 for UCMAS fees (an extra-curricular child development program). However, contrary to usual practice, her closing submissions do not direct the reader to specific documents in the trial exhibits that support the incurring of such expenses. Upon examining references to s. 7 expenses in the trial exhibits, I was left with more questions than answers.
[84] Among the few supporting documents relating to Section 7 expenses in the trial exhibits are Lydia’s Form 22: Request to Admit dated September 14, 2021 (trial exhibit 48) and John’s Form 22A: Response to Request to Admit dated September 24, 2021 (trial exhibit 46). Paragraph 49 of Lydia’s Request to Admit states that John owes Lydia $1,928 for s. 7 expenses incurred since separation, consisting of $1,500 for UCMAS fees and $428 for childcare. In his Response relating to that item, John states that Lydia’s statement was “possibly true” but expresses doubt as to whether those expenses were incurred. He goes on to state that he will “pay his proportionate share of these expenses based on the parties’ relative income if they were in fact incurred.” John also states that his son asked him to pay for the child’s soccer league, which John says he is “willing to do.”
[85] Section 7 expenses were also referred to in Lydia’s Form 13.1 Financial Statement sworn January 31, 2022 (trial exhibit 39). In the initial sworn portion of the Financial Statement, Lydia indicates that the monthly amount being incurred for “Children’s activities” (identified as “swimming and soccer”) was $210 (which translates to $2,520 yearly), as part of Lydia’s total monthly living expenses of $6,172 (which translates to $74,070 yearly, more than her disclosed gross income). As part of that exhibit, the only documentary support she provides for expenses for children’s activities is an e-mail dated October 5, 2021, from Future Soccer Academy (addressed to “Dear Parents”), which indicates that the total indoor fees for the fall and winter season (October 2021 to April 2022) were $1,695 for the competitive program (training and games) and $1,243 for the non-competitive program (training only).
[86] Also attached to the sworn portion of the Financial Statement is a “Proposed Budget”, which includes (in Schedule B) proposed annual expenditures for “Special or Extraordinary Expenses for the Child(ren)”, stated to be $335, consisting of (i) $210 for “Soccer”, (ii) $125 for “Math Tutoring”, and (iii) nil for “Swimming (on hold due to closures)”. The budgeted amount of $210 for soccer appears to correspond to the amount for that activity stated in the sworn financial statement, except that the figures in the proposed budget are supposed to be yearly figures, rather than monthly. A yearly budget of $335 for s. 7 expenses (including $125 for math tutoring) translates into negligible monthly amount of $27.92 for all activities.
[87] In his written reply submissions, John’s counsel seizes on Lydia’s obvious error in the unsworn proposed budget, describing (inaccurately) the budgeted $335 amount as the annual amount “that the Respondent swore she was paying for [the child’s] expenses”. Counsel goes on to state that John was prepared to pay his proportionate share of s. 7 expenses of $335 per year to the date of trial (totalling approximately $1,350 for the period since separation), without supporting receipts. Perhaps realizing that this concession may be considered less than magnanimous, counsel alternatively states that John is willing to pay his proportionate share of his son’s s. 7 expenses retrospectively to the date of separation, but only if (a) the expenses were actually incurred, (b) receipts are provided, and (c) the amounts are reasonable. While he does not dispute the types of expenses that Lydia says she had incurred, he submits that the amounts claimed should not be reimbursed in the absence of actual receipts, noting that the soccer academy’s e-mail was not proof that the fees were paid. He also questioned whether the indicated amounts were reasonable given the parties’ financial circumstances. Counsel also suggests that John is willing to give Lydia 30 days to provide receipts for expenses incurred since separation, and then have a calculation made. He does not suggest a procedure for determining whether the expenses were reasonable.
[88] If John’s counsel is suggesting that the trial evidence should be reopened to allow Lydia to submit further documentation to support her claim for past s. 7 expenses, I am not prepared to do that. Judges of this court have been addressing this application through multiple conferences and other proceedings for some time prior to the trial, with both parties being represented by counsel. The parties have had ample opportunity to provide documentary evidence in the extensive trial exhibits already before the court. To pick up on Faieta J.’s observation in his March 2022 endorsement, this matter needs to be brought to a conclusion without further delay.
[89] Consistent with John’s counsel’s submissions, I agree that best practices relating to s. 7 expenses would include providing a receipt or other documentary evidence of an expense that a party seeks to have reimbursed. That is the procedure being put in place prospectively for the sharing of s. 7 expenses. In the absence of receipts or other documentary proof of past expenses, I would be left with the claimant’s oral evidence to support the claim. I am cautious about relying exclusively or primarily on either party’s unsupported evidence to determine contested issues in this case. Each of them has made serious allegations against the other that often appear to be detached from reality. In my view, the history of extreme animosity between the parties undermines the credibility and reliability of both parties’ evidence in this case.
[90] Even though Lydia has not provided receipts for past s. 7 expenses, the trial exhibits already referred to provide some corroboration that Lydia has incurred s. 7 expenses for the benefit of the parties’ son during the four-year period since the parties’ separation. John does not categorically deny that she incurred s. 7 expenses, conceding that it is “possibly true” that she did. I am prepared find to that Lydia has incurred s. 7 expenses in at least a modest amount during that time. In fairness, John should pay his proportionate share of those expenses. There is no evidence that John has himself incurred such expenses for his son’s benefit, despite his apparently sincere protestations that he is willing to pay his proportionate share of expenses reasonably incurred, including specifically the child’s soccer fees. Based on the limited evidence before me and taking into account the requirement that the amounts be reasonable in the parties’ financial circumstances, I am fixing the amount of s. 7 expenses incurred on or before June 30, 2022 at $4,000. John’s proportionate share of that amount would be $1,600, being 40 per cent of that amount.
[91] For s. 7 expenses incurred after June 30, 2022, John shall be responsible for paying 39 per cent and Lydia shall be responsible for paying 61 per cent, based on the parties’ respective estimated 2022 incomes. The proportion of s. 7 expenses payable by the parties shall be subject to prospective adjustment after June 30, 2023, based on the parties’ respective incomes for the previous calendar year. The party incurring an expense may claim reimbursement of the other party’s proportionate share by providing the other party with a receipt or other documentary proof that the expense was incurred. The other party shall respond to the request for payment within 15 days. To the extent practical, a party proposing to seek reimbursement for an expense shall consult with the other party prior to incurring the expense. The other party shall promptly respond to the first party’s proposal to incur the expense.
V. Equalization
[92] John seeks equalization of the parties’ net family properties. Lydia disputes (among other things) John’s proposed “date of marriage” deductions and seeks an unequal division of marital assets as well as certain post-separation adjustments.
A. Legal Principles
[93] Part 1 of the Family Law Act, R.S.O 1990, c. F.3, sets out the statutory regime for division of family property upon the termination of a marriage. Either spouse may enforce their entitlement by way of court application: Family Law Act, s. 7.
[94] To determine a spouse’s entitlement, the first step is to calculate each spouse’s net family property (“NFP”), defined as the value of all property that the spouse owns on the valuation date (in this case, the date of separation), net of the spouse’s liabilities and certain other deductions and exclusions: s. 4(1), NFP definition. Those deductions include the net value of property (other than a matrimonial home) that the spouse owned at the date of marriage: s. 4(1), NFP definition, clause (b). The onus of proving a deduction or exclusion is on the person claiming it: s. 4(3).
[95] The general rule is that upon a marriage’s termination, the spouses’ NFPs are equalized, that is, “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them”: Family Law Act, s. 5(1). By way of exception, the court may award a spouse a greater or lesser amount “if the court is of the opinion that equalizing the net family properties would be unconscionable”: s. 5(6).
[96] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal held that when determining whether an equal division of marital assets would be unconscionable, the threshold of unconscionability is “exceptionally high”, that is, an equal division must “shock the conscience of the court”: Serra, at para. 47. The Court of Appeal found that interpretation to be consistent with “the essential characteristic of present-day family law legislation in Ontario, namely, the promotion of certainty, predictability and finality in the determination of support obligations and property division and the removal of judicial discretion in those areas to the extent possible”: Serra, at para. 39.
B. Analysis
[97] In support of their claims relating to property division, each of the parties has provided a NFP Statement, which calculates the amount they say they would be entitled to receive from the other upon equalization of their NFPs. John says that Lydia should be ordered to pay him $91,963.25. Lydia says that to equalize their NFPs, John would be required to pay $11,646.90 to Lydia. Lydia also submits that John should be ordered to pay additional amounts to her upon the unequal division of marital assets, as discussed further below.
(a) “Date of marriage” Deductions
[98] In monetary terms, the most significant difference between the parties’ calculations in the parties’ NFP Statements relates to John’s proposed “date of marriage” deductions totalling $136,500. That amount relates to assets that John says he owned at the date of marriage (May 11, 1991), as set out in Part 6 his NFP Statement, broken down as follows:
a. $65,000 for “Pre-Teamsters pension”
b. $50,000 for RRSPs
c. $10,000 for his bank balance
d. $11,250 for “General Household items and vehicles”, including a 1989 Buick Regal.
[99] When calculating his NFP, John proposes to deduct those amounts as “date of marriage” deductions. The challenge that he faces is the paucity (or in some instances, absence) of supporting documentary evidence relating to his ownership of the assets or their valuation, given the passage of time since the date of marriage in 1991.
[100] Lydia argues that John has not satisfied his onus of establishing his ownership or the value of those assets: Family Law Act, s. 4(3). In response, John notes that it is often difficult or impossible to obtain documentary evidence from the pre-digital era to establish ownership or value. He also cites his lack of access to the belongings he left in the matrimonial home (which Lydia is alleged to have “ransacked”). In these circumstances, John’s counsel submits that the court should accept John’s affidavit evidence and oral testimony to support his ownership and valuations. In the case of the Pre-Teamsters pension and the 1989 Buick, he also relies on the limited documentary evidence provided, as noted further below.
[101] For reasons that follow, I have concluded that John has not satisfied his onus of establishing his ownership or the value of the “date of marriage” assets set out in his NFP.
Pre-Teamsters Pension
[102] The parties agree that at the date of separation, John’s assets included his Pepsi (Teamsters) pension, a defined contribution pension plan arising from his position as a unionized employee of Pepsi and predecessor companies prior to his retirement in 2015. As set out in each party’s NFP Statement, the value of that asset accrued during the parties’ marriage was $179,202.65 at the date of separation. John also claims that he had a “pre-Teamsters pension” valued at $65,000, for which he claims a date of marriage deduction in that amount. John’s evidence was that his entitlement under that plan arose while employed by Pepsi predecessor companies prior to 1991, before the workforce became unionized.
[103] John’s affidavits and oral evidence provided a confusing narrative relating to the pre-Teamsters pension. While not disclosed in previously sworn financial statements, that asset and its value were included in John’s Financial Statement dated January 22, 2022 (trial exhibit 3). That asset was also referred to in John’s trial affidavit dated September 26, 2021 (trial exhibit 5), prepared in preparation for the previously scheduled October 2021 trial date.[^2] In his September 2021 affidavit, the explanation he provided for late disclosure of the pre-Teamster’s pension was that it only came to mind when he discussed his later Pepsi (Teamsters) pension with his lawyer in preparation for trial.
[104] There is no dispute that as of the date of marriage in May 1991, John was already an employee of a Pepsi predecessor company and had been since the 1970s. As of May 1991, John (as a unionized employee) was already of a member of the Pepsi (Teamsters) pension (its formal name being Teamsters Canadian Pension Plan or TCPP), as confirmed in correspondence with a representative of the pension plan administrator (included in trial exhibit 6). That correspondence confirmed that pension plan contributions in 1991 (which included contributions that year prior to the date of marriage) were prorated, in order that the value of that pension related to the period that commenced on the date of marriage, as required for equalization purposes.
[105] As set out in John’s September 2021 affidavit, John’s evidence was that when he retired from Pepsi in 2015, he received a $65,000 locked-in payment that was “put into mutual funds but … ended up in my LIFs or part of some RSPs.” He said that this payment related to a “pension like” plan he had with a Pepsi predecessor company prior to his marriage to Lydia, before the workforce was unionized. John also said that starting in 2016, he made withdrawals from his RSPs, which have since been all (or nearly all) depleted. He distinguishes his “RSPs” from his “RRSPs” (referred to further below), which he says also relate to the period prior to his marriage in 1991.
[106] In his affidavit, John acknowledged that he does not have documentary evidence that indicates the exact value of the pre-Teamsters pension on the date of marriage but states his belief that when calculating his NFP, he should be allowed to make a date of marriage deduction for that asset of $65,000, that is, the same amount that he says he received after his retirement in 2015.
[107] The only documentary evidence John provides to support the existence (but not the value) of the pre-Teamsters pension-like asset is correspondence with the representative of the Pepsi (Teamsters) pension administrator, who confirmed (in her letter dated April 30, 2021[^3]) that her firm was not the administrator of that pension plan on the relationship start date in May 1991. In his closing submissions, John’s lawyer argues that the representative’s confirmation supports John’s position that any contributions he made prior to 1991 were not administered by her firm and were made to a different entity. The passage his counsel relies on is included in the pension administrator’s representative’s explanation relating to proration of contributions made to the Pepsi (Teamster’s) pension plan during 1991. In fact, that correspondence does not confirm that any prior contributions to another (pension-like) plan were made.
[108] John’s counsel also relies on a further passage in his correspondence with the pension administrator’s representative (in her letter dated September 27, 2022), as follows:
I have also been asked if any cashed in RSPs in 2016 could be possibly related to the TCPP benefit for Mr. Dosu. The TCPP is a defined benefit pension plan and this would not be possible under pension and tax rules; so there is no connection between any RSPs Mr. Dosu has and the TCPP pension.
[109] John’s counsel submits that fact that John cashed in RSPs in 2016 after he retired supports his evidence that the $65,000 payout he received upon his retirement relates to a pre-1991 pension-like plan.
[110] Lydia contests John’s entitlement to a “date of marriage” deduction for a pre-Teamster’s pension. Among other things, her counsel’s closing submissions note that it was open to John to provide recent documentary evidence to support at least part of his narrative, that is, the transfer of $65,000 to him in 2015 relating to that entitlement that “ended up” in one of his registered accounts. No such documentary evidence was provided to support even those relatively recent transactions, let alone the value of such entitlement at the date of marriage.
[111] Having considered John’s testimony and the limited documentary evidence he relies on, I am not satisfied that John has established his entitlement to a pre-Teamsters pension or the value of any such entitlement. There is virtually no documentary evidence to support his position relating to his entitlement or its value. I find the correspondence with the Pepsi (Teamsters) pension plan administrator to be of no real assistance. The pension administrator’s representative provided her understanding of “pension and tax rules” relating to the lack of connection between any “RSPs” John has and his Pepsi (Teamsters) pension. I understand “RSPs” to be a generic term that may refer to RRSPs (registered retirement savings plans) as well as other types of tax-efficient registered plans. Her sworn explanation is general in nature and provides no material support for the position John is taking.
[112] In addition, as Lydia’s counsel notes, John has not provided documentary evidence of recent transactions (starting in 2015) that may have corroborated at least part of his narrative. I find it difficult to accept that there was no further documentary evidence available to support the apparent chain of transactions John described, to the limited extent it may have been helpful.
[113] I am therefore left with unsubstantiated evidence in John’s affidavits and his (often vague and rambling) testimony to support his position relating to his entitlement to and the value of this asset on the date of marriage. I have already mentioned my reluctance to rely primarily on the parties’ unsupported evidence to determine contested issues in this case. With respect to the pre-Teamsters pension, there is even more reason for caution, given the fact that John fortuitously remembered its existence shortly before the previously-scheduled trial date, more the three years after he commenced these proceedings.
[114] Accordingly, in all the circumstances, I am not satisfied that John has established his entitlement to a pre-Teamsters pension or the value of any such entitlement, as he is required to do under s. 4(3) of the Family Law Act.
Other “date of marriage” Deductions
[115] I have reached the same conclusion with respect to the other “date of marriage” deductions John has claimed.
[116] The remaining financial assets for which he claims deductions are $50,000 in RRSPs and a bank balance of $10,000. There is no documentary evidence to support either of those amounts. For the reasons previously stated, I am not prepared to rely on John’s uncorroborated affidavit and oral evidence to establish those deductions.
[117] The other “date of marriage” deductions he claimed in his NFP Statement totalled $11,250 for “General Household items and vehicles”, including a 1989 Buick Regal. In John’s closing submissions and his January 2022 financial statement, he broke down the amount of those deductions as $11,000 for the Buick Regal, $350 for 3 Ghanaian masks, $300 for two leather jackets and $400 for tools, for a total of $12,050 ($800 more than the amount claimed in his NFP Statement).
[118] To support his claimed deduction for the 1989 Buick Regal, John provided the relevant pages from the “Canadian Red Book” dated March 1991 and September 1991, which includes valuations for a 1989 Buick Regal. While there was some issue whether the models listed corresponded exactly to model John said he owned, the indicated values were in the range of $10,000 to $12,000.
[119] While the Canadian Red Book provides some evidence of the value of the vehicle in question, there is no independent evidence that John owned such a vehicle. For the reasons indicated previously, I am not prepared to rely on John’s uncorroborated evidence relating to the vehicle’s ownership.
[120] In John’s reply submissions, his counsel acknowledges that there is no independent evidence of the existence or value of the listed household items apart from the Buick Regal. Noting that the total value claimed for those items was relatively small ($1,050) and did not justify obtaining independent appraisals, counsel submits that I should “simply find the … sums to be reasonable” and accept them as deductions in calculating the value of John’s NFP (citing the legal maxim de minimus non curat lex). Alternatively, he suggests excluding those assets from the NFP calculation, both at the date of separation and the date of marriage. I prefer the latter alternative as being more in keeping with the evidence (or its absence).
[121] Accordingly, I am not allowing John’s proposed “date of marriage” deductions in calculating the value of his NFP.
(b) Table 1: Value of Assets (including the matrimonial home)
[122] Another apparent discrepancy between the parties’ NFP Statements relates to the value of the parties’ former matrimonial home in Toronto, as set out in Table 1: Value of Assets Owned on Valuation Date, under “Part 4(a): Land”. As explained further below, that discrepancy makes no difference to the ultimate amount of the required equalization payment in the circumstances of this case. I will also briefly address other assets referred to in Table 1 under “Part 4(b): General Household Items and Vehicles”, “Part 4(c): Bank Accounts and Savings, Securities and Pensions”, and “Part 4(f): Money owed to you”.
Matrimonial Home
[123] At trial, the matrimonial home’s value was addressed in the evidence of two real estate appraisers, one of whom was called by each party as their only other trial witness. On consent, each of the appraisers was qualified as an expert witness for that purpose. They each prepared an appraisal report, which (on consent) became trial exhibits 1 and 2.
[124] As set out in trial exhibit 1, the appraiser John retained appraised the matrimonial home’s value as $745,000 as of April 12, 2021. As set out in trial exhibit 2, the appraiser Lydia retained appraised its value as $665,000 in June 2021. Their evidence did not address the matrimonial home’s value on the date of separation in May 2018 nor did it address the extent to which the appraisal evidence may be relied on to determine the matrimonial home’s value in May 2018.
[125] To the extent it may be relevant for other purposes, I preferred the evidence of Lydia’s appraiser, supporting a valuation of $665,000 for the matrimonial home in June 2021. Among other things, the appraiser retained by John inappropriately assumed without investigation that certain visible property defects were cosmetic only, leading to an appraised value that was higher than it would otherwise be. In my view, the appraiser that Lydia retained was justified in taking into account the property’s condition when performing the appraisal, consistent with the lower value he determined.
[126] In Part 4(a) of John’s NFP Statement relating to the matrimonial home, John referred to the appraised values set out by each of the appraisers in their 2021 appraisal reports and then went on to state his own estimate of the property’s value at the date of separation in May 2018 as $550,000. Since the matrimonial home is jointly owned, he allocated a value of $275,000 for each party’s interest in the property.
[127] In Lydia’s NFP Statement, she acknowledged that the property’s value had been appraised as $665,000 as of June 2021 and went on to accept that amount as the property’s value as of the date of separation, allocating a value of $332,500 for each party’s 50 per cent interest.
[128] As explained elsewhere in these Reasons, I have decided to order the sale of the matrimonial home and divide the net proceeds between the parties. As well, I have rejected Lydia’s submission that there should be an unequal division of marital assets. In these circumstances, the matrimonial home’s value set out in each party’s NFP Statement (being split equally between the parties) makes no difference to the ultimate amount of the required equalization payment. Therefore, it is not necessary for me to determine the matrimonial home’s value on the date of separation. In any case, I do not have the evidentiary basis for doing so, given that the appraisal evidence before me related to the property’s value three years after the date of separation during a period of market volatility.
[129] That being said, for the purpose of calculating the required equalization payment in this case, I am using the matrimonial home value for each party set out in Lydia’s NFP Statement, that is $332,500 for each of them. I do so only as a placeholder for the purpose of that calculation. I am not making a finding of fact as to the matrimonial home’s value on the date of separation.
Other Assets
[130] The other assets listed in Table 1 of each party’s NFP Statement do not raise any further significant issues relevant to calculation of their NFPs.
[131] I accept Lydia’s position that the only assets referred to in “Part 4(b): General Household Items and Vehicles” that affect the calculation of the parties’ NFPs relate to the parties’ respective vehicles on the date of separation. The stated value for those vehicles is the same in each party’s NFP Statement. The other items referred to in Part 4(b) of John’s NFP Statement have been largely addressed in the foregoing analysis relating the “date of marriage” deductions. Consistent with that analysis, the evidence does not support their inclusion when calculating the parties’ NFPs. Therefore, the total “Value of General Household Items and Vehicles” in Part 4(b) of the NFP Statement is $5,000 for John and $30,000 for Lydia, being the values of their respective vehicles on the date of separation.
[132] I also accept as correct the values for the parties’ financial assets set out in Part 4(c) of Lydia’s NFP Statement. Essentially the same assets and valuations appear in Part 4(c) of John’s NFP Statement. Therefore, the total “Value of Accounts and Savings” in Part 4(c) of the NFP Statement is $209,412.12 for John and $184,480.25 for Lydia. The largest single item for each of them is their pension, the value being $179,202.65 for John and $152,899.06 for Lydia.
[133] In “Part 4(f): Money owed to you” of Lydia’s NFP Statement, she included as her asset “Monies owed by the Applicant John Dosu to the Respondent”, with the amount stated to be “TBD”. In Part 4(f) of John’s NFP Statement, he referred to various specific items and amounts that Lydia said John owed Lydia totalling over $65,000, as set out in Part 4(f) of Lydia’s Financial Statement dated April 21, 2021. John contests that he owes Lydia those amounts but submits that if John is found to be indebted to Lydia, the amount of the debt should be included in Lydia’s assets when calculating her NFP. Lydia’s counsel clarified that those issues were instead addressed in her submissions relating to post-separation adjustments and unequal division of marital assets, which are dealt with separately in these Reasons. Therefore, to the extent relevant, I will address those issues in that context, rather than in the context of calculating the parties’ respective NFPs for equalization purposes.
[134] Accordingly, including the placeholder amount for the matrimonial home’s value in Part 4(a) and no amount for “Money owed to you” in Part 4(f), the total “Value of Property Owned on the Valuation Date” set out in Table 1 of the NFP Statement would be $546,912.12 for John and $546,980.25 for Lydia.
(c) Table 2: Value of Debts and Liability on Valuation Date
[135] Table 2 of the parties’ NPF Statements set out the debts and other liabilities to be deducted from the parties’ total assets in order to calculate their NFPs. As was the case with certain assets listed in Table 1, there are certain discrepancies between the items and amounts in the parties’ respective NFP Statements that need to be reconciled.
[136] In Table 2 under “Part 5: Debts and other Liabilities”, both NFP Statements list the same joint mortgages and joint lines of credit that are secured against the matrimonial home. In John’s NFP Statement, the total amount of the debt related to those items was $321,253.34, with each party being allocated debt totalling $160,626.67. In Lydia’s NFP Statement, the total of amount of the debt for those accounts was $422,629.90, with each party being allocated debt totalling $211,314.98. The most significant component of the discrepancy between those amounts related to the date of separation balance for the second mortgage, stated to be about $275,000 in Lydia’s NFP Statement and about $150,000 in John’s NFP Statement. To the extent that there is backup for the amount of that joint debt in the index to the financial brief that Lydia placed in evidence (trial exhibit 43), it supports the balance in John’s NFP Statement rather than Lydia’s. I also note that some of the other figures relating to the joint mortgages and joint lines of credit set out in John’s NFP Statement correspond more closely to the amounts set out in the index to Lydia’s financial brief. Therefore, in calculating the total amount of the parties’ debts and liabilities, I am accepting as correct the amounts set out in John’s NFP Statement (rather than Lydia’s) relating to the joint mortgages and joint lines of credit.
[137] As a result, I find that the total amount of joint debt under the parties’ joint mortgages and joint lines of credit on the date of separation was $321,253.34. On the NFP Statement, each party is being allocated debt totalling $160,626.67. Since the amounts of these joint debts are being split equally in the parties’ NFP Statements, those amounts make no difference to the ultimate amount of the required equalization payment.
[138] The items in the balance of Part 5 of the parties’ NFP Statements are the same in both statements, with minor exceptions.[^4] For the purpose of calculating the parties’ total debts and other liabilities at the date of separation, I am accepting the figures set out in Lydia’s NFP Statement for these items. The amounts total $43,524.41 for John and $66,904.31 for Lydia.
[139] Including each party’s share of the joint mortgages and joint lines of credit, the parties’ total debts and other liabilities on the date of separation would be $204,169.54 for John and $227,530.98 for Lydia.
(d) Net Family Property calculation
[140] Giving effect to the foregoing, the parties’ NFPs at the date of separation would be $342,742.58 for John and $319,449.27 for Lydia, as calculated below.
| John | Lydia | |
|---|---|---|
| Total Value of Property | $ 546,912.12 | $ 546,980.25 |
| Less: Total Debts and Liabilities | 204,169.54 | 227,530.98 |
| Value of Net Family Property | $ 342,742.58 | $ 319,449.27 |
[141] The difference the parties’ NFPs is $23,293.31. Therefore, to equalize the parties’ NFPs, John would be required to pay Lydia $11,646.65, which closely corresponds to the amount set out in Lydia’s NFP Statement.
(e) Post-Separation Adjustments
[142] As noted in Lydia’s closing submissions, Lydia says that there should be various “post-separation adjustments”, which would result in an order that John pay certain amounts to Lydia. As explained below, I have decided not to make any such order.
[143] The most significant of those proposed adjustments relates to the mortgage payments on the matrimonial home (in the amount of $1,136 per month), which Lydia has been paying in full since July 2021. Prior to that time, John had been paying half of the mortgage payments since December 2019, by agreement between the parties. Lydia is claiming half of those mortgage payments as post-separation adjustments, which would total $6,816 for the period ended in July 2022. As discussed further below under “Occupation rent”, I have decided not to make that order in Lydia’s favour.
[144] Lydia also says she is owed $2,900 for a withdrawal that John made from the parties’ joint line of credit to pay for his brother’s funeral, which occurred in Canada in November 2017, prior to John’s departure for Ghana. She notes that John also withdrew $1,000 for his airfare to Ghana. Lydia also says that in February 2018, she paid off John’s credit card debt of $1,337.77, withdrawing that amount from her TFSA to do so.
[145] Except for the mortgage payments, all the other payments referred to above occurred before May 11, 2018, the agreed date of separation. By definition, they are not the proper subject of post-separation adjustments.
[146] In her closing submissions relating to post-separation adjustment, Lydia’s counsel also refers to a house repair bill in the amount of $5,356.54, which was included in John’s Financial Statement dated June 25, 2021 (trial exhibit 32).[^5] Lydia’s counsel states that this bill relates to repairs to the matrimonial home after a kitchen fire in April 2018, when John was in Ghana. These repairs were not covered by insurance since John had failed to pay the required premiums while he was away. Lydia’s position is that John is responsible for payment of expenses relating to that fire.
[147] A debt in that amount is also included in John’s NFP Statement, stated to relate to house repair work in “April 2019” (after the date of separation). The list of debts in Lydia’s NFP Statement does not include that amount, noting that John has not provided an invoice or other supporting documentation for that expense. In his closing submissions, John’s counsel states that this expense related to the kitchen fire in April 2018, while he was in Ghana, blaming the fire on Lydia. He argues that the expense should be split between the parties, contrary to his own NFP Statement, which allocated the debt entirely to John.
[148] Given the uncertainty relating to this expense and the lack of documentary support, I am not including it when calculating the parties’ NFPs for equalization purposes nor am I making a post-separation adjustment relating to that expense.
(f) Unequal Division of Net Family Property
[149] Lydia submits that there should be an unequal division of marital assets in this case, arguing that an equal division would be unconscionable.
[150] In her closing submissions, Lydia’s counsel argues that John deliberately depleted $81,052 from the parties’ joint line of credit from 2012 to 2018 for his own benefit. The total amount Lydia claims is $92,396.75, including $11,396.75 as the cost of borrowing. Included in that amount were withdrawals of as little as $60, sometimes made multiple times in a day. She disputed John’s explanation that such withdrawals were for groceries and household expenses, stating that he did not provide tracing or documentary evidence to substantiate his position. Lydia’s counsel argues that since John earned a comfortable income, there was no reason to be withdrawing funds from the line of credit except that he was doing so for his own benefit.
[151] As previously noted, when determining whether to depart from the general rule that the spouses’ NFPs are equalized on a marriage’s termination, the court must be satisfied that equalizing the NFPs would be unconscionable: Family Law Act, s. 5(6). The circumstances the court may take into account include:
a. the fact that debts claimed in reduction of a spouse’s NFP were incurred recklessly or in bad faith (s. 5(6)(b));
b. a spouse’s intentional or reckless depletion of their NFP (s. 5(6)(d));
c. the fact that one spouse has incurred a disproportionately larger amount of debts (s. 5(6)(f)); and
d. any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)).
[152] The threshold of unconscionability is “exceptionally high”, that is, an equal division must “shock the conscience of the court”: Serra, at para. 47. The onus is on the spouse claiming an unequal division to establish that threshold has been met.
[153] Lydia has not come anywhere close to meeting that threshold.
[154] The considerations set out in s. 5(6) of the Family Law Act provide context for making that determination. The withdrawals that Lydia relies on took place over several years, in amounts that would not be inconsistent with day-to-day transactions. Especially given the high threshold that must be met (and the onus being on Lydia), the evidence does not support a finding that John engaged in the intentional, reckless or bad faith depletion of marital assets or other behaviour that would support a finding of unconscionability.
VII. Matrimonial Home
[155] John seeks the sale of the matrimonial home. He also seeks occupation rent relating to Lydia’s residence in the matrimonial home since the parties’ separation. Lydia disagrees and seeks a vesting order in her favour with respect to John’s 50 per cent interest in the matrimonial home, citing the risk that he will leave the jurisdiction to avoid his child support and equalization obligations.
A. Legal Principles
(a) Partition or Sale
[156] A person may apply to the court to determine a question between spouses as to a property’s ownership or possession: Family Law Act, s. 10(1). The court may (among other things) order the property to be partitioned or sold: s. 10(1)(c). The court may also order property’s partition or sale to satisfy an obligation under an order for division of marital property: s. 9(1)(d)(ii). As well, under s. 3(1) of the Partition Act, R.S.O. 1990, c. P.4, a person with a shared interest in land may make an application for the land’s partition or sale under s. 2 of that Act. Section 2 provides that a person with a shared interest in land “may be compelled to make or suffer partition or sale of the land”.
[157] When deciding whether to order the partition or sale of land, the court has the discretion to refuse to grant the order, given the use of the word “may” in the statutory provisions: see Hutcheson v. Hutcheson, 1950 CanLII 93 (ON CA), [1950] O.R. 265 (C.A.). Despite the legislation’s permissive wording, “[t]here continues to be a prima facie right of a joint tenant to partition or sale of lands”: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23, at p. 29. Subsequent case law limited the discretion to refuse the order to “cases where the applicant had behaved maliciously, oppressively or with a vexatious intent toward the respondent”: see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 441, referred to further below.
[158] In Marchese v. Marchese, 2017 ONSC 6815, at para. 18, Faieta J. summarized the criteria for determining whether a matrimonial home should be ordered sold, as follows:
The determination of whether a matrimonial home should be ordered to be sold is governed by the [Partition] Act, R.S.O. 1990, c. P.4 and the principles articulated by the Ontario Divisional Court in Kaphalakos v. Dayal, 2016 ONSC 3559 (Div. Ct.), at paras. 16-17:
i. a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant;
ii. a court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made;
iii. the party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order; and
iv. the malicious, vexatious or oppressive conduct must relate to the partition and sale issue itself and not to the general conduct of the person bringing the motion.
[159] In Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.), at para. 2, the Court of Appeal provided the following guidance relating to the circumstances in which the conduct of the moving party may be considered oppressive:
In our view, "oppression" properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.
[160] In Kaphalakos, at paras. 31-33, the Divisional Court, relying on Greenbanktree, found that bringing a motion for the partition or sale of the co-tenants’ jointly-owned property was capable of being oppressive in circumstances in which there is evidence that the opposing co-tenant is physically and mentally impaired and has no place else to live. In Kaphalakos, the opposing co-tenant was critically injured following an attack with a hammer by the moving party.
[161] The court’s jurisdiction under the Partition Act and the Family Law Act relating to the sale of jointly-owned property was also considered by the Court of Appeal in Silva. In that case, the Court of Appeal dismissed the appellant husband’s appeal from an order for the sale of the parties’ jointly-owned matrimonial home, granted on the respondent wife’s motion pending trial. The appellant husband argued against permitting the sale to proceed until the issue of division of the parties’ net family properties was resolved on a final basis: Silva, at p. 439. In that context, the Court of Appeal, at p. 445, considered whether “the F.L.A. [Family Law Act] ousts the jurisdiction of the Partition Act when dealing with jointly owned spousal property.” The Court of Appeal answered that the court’s jurisdiction under the Partition Act was not ousted, with the following caveat:
The two statutes are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.
(b) Occupation Rent
[162] When someone occupies a property and by doing so excludes another party with an interest in the property, occupation rent is an equitable remedy that is available to the court in appropriate circumstances to achieve fairness between the parties. That remedy developed in the commercial context and has long been recognized by Ontario courts: see Dagarsho Holdings Ltd. v. Bluestone (2004), 2004 CanLII 11271 (ON SC), 23 R.P.R. (4th) 80 (Ont. S.C.), aff’d (2005), 37 R.P.R. (4th) 53 (Ont. C.A.). That case involved a dispute between a mother and her son that arose when the mother’s company terminated the son’s retainer as a property manager. After his termination, the son continued to occupy a company-owned property without paying rent. Among other things, the company claimed occupation rent as damages for trespass and unjust enrichment.
[163] In Dagarsho, the trial judge found the overholding occupant liable for trespass and unjust enrichment. In finding that unjust enrichment was established, the court applied the following test: “Unjust enrichment is an equitable remedy. There must be enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment”: Dagarsho, S.C., at para. 15. The court ordered, among other things, that the occupant pay occupation rent as the measure of damages for trespass and unjust enrichment: Dagarsho, S.C., at para. 95.
[164] Occupation rent may also be awarded in matrimonial cases where one party continues to occupy the family home to the exclusion of the other party after the breakdown of the parties’ relationship. The case law recognizes the court’s authority to award occupational rent in a matrimonial case if it is “reasonable and equitable to do so”: Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (C.A.), at para. 49; see also Irrsack v. Irrsack (1978), 1978 CanLII 2158 (ON SC), 22 O.R. (2d) 245 (H.C.), at p. 249, aff’d (1979), 1979 CanLII 1647 (ON CA), 27 O.R. (2d) 478 (C.A.), leave to appeal to SCC refused, [1980] 1 S.C.R. viii, 27 O.R. (2d) 478n. Other decisions caution that awarding occupation rent in matrimonial cases should not be considered “routine” or should be limited to "exceptional cases": see Saroli v. Saroli, 2021 ONSC 4450, at para. 310; Foffano v. Foffano (1996), 1996 CanLII 8097 (ON SC), 24 R.F.L (4th) 398, at p. 407; Casey v. Casey, 2013 SKCA 58, 417 Sask. R. 34, at para. 42.
[165] In the matrimonial context, rather than using trespass or unjust enrichment analysis, the case law has generally emphasized the discretionary, case-specific nature of the occupation rent remedy, setting out various factors that it would be appropriate to consider when determining whether to order its payment: see Griffiths, at paras. 49-50; Saroli, at para. 312. In Saroli, the court comprehensively lists the common factors as follows:
a. the timing of the non-resident spouse's claim for occupation rent;
b. the circumstances under which the non-resident spouse left the home;
c. the duration of the exclusive occupancy;
d. whether the non-occupying spouse moved for the sale of the home;
e. the inability of the non-resident spouse to realize on their equity in the property;
f. any financial hardship experienced by the non-resident spouse as a result of being deprived of their equity in the property;
g. any reasonable credits to be set off against occupation rent for expenses associated with the home;
h. the conduct of both spouses, including any failure to pay support;
i. whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid child support;
j. whether the occupying spouse has increased or decreased the selling value of the property; and
k. any other competing financial claims in the litigation.
(c) Vesting Order
[166] The court has broad jurisdiction to make an order vesting in any person an interest in real or personal property: Courts of Justice Act, R.S.O 1990, c. C.43, s. 100. A vesting order may be made to satisfy an obligation under a child support order or an order for the division of marital property: Family Law Act, ss. 34(1)(c), 9(1)(d)(ii).
[167] In Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 84, the Court of Appeal, at paras. 31-32, addressed the rationale for the court’s vesting power, its flexible nature, and the burden of proof borne by the party seeking the order:
The rationale for the vesting power … is to permit the court to direct the parties to deal with property in accordance with the judgment of the court. The jurisdiction is quite elastic. Nothing in the language of either section 100 of the Courts of Justice Act or section 34(1)(c) of the Family Law Act operates to constrain the flexible discretionary nature of the power….
The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case…. [T]he onus is on the person seeking such an order to establish that it is appropriate. As a vesting order -- in the family law context, at least -- is in the nature of an enforcement order, the court will need to be satisfied … that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions …. [Citations omitted.]
B. Parties’ Positions
[168] John seeks the sale of the matrimonial home. He also seeks occupation rent relating to Lydia’s residence in the matrimonial home since the parties’ separation.
[169] In particular, John seeks an order that the matrimonial home be sold and the net proceeds split equally between Lydia and him, after deducting from his share any outstanding amounts for child support from the date of separation. He also proposes that two to three years of child support be deducted from his share of the net proceeds and paid to Lydia as an advance payment of his child support obligation. He denies he has any intention of leaving Canada where he has lived for most of his life, stating his intention to live out his days in Canada with Matilda and their daughter, close to his other children and grandchildren, while continuing to pay child support for the parties’ son. John’s counsel also cites John’s payment of child support to Lydia since being ordered to do so on an interim basis as being indicative of his willingness to continue to do so.
[170] John says that he needs the matrimonial home net proceeds to support himself, given his reduced financial circumstances as a retiree, his obligation to pay child support for the parties’ son, and his support obligation for his dependent daughter. In his closing submissions, John’s counsel argues that in all the circumstances, Lydia has not satisfied her onus of establishing malicious, vexatious or oppressive conduct that would defeat his prima facie entitlement to the sale of the matrimonial home and division of the net proceeds.
[171] John also claims occupation rent from Lydia for a period of 38 months commencing in May 2018 until July 2021, when Lydia began paying the entire the monthly mortgage payments. Based on his own research, John argues that he should receive $750 per month, for a total of $28,000.
[172] In support of John’s claim for occupation rent, his counsel submits that Lydia had the benefit of living in the matrimonial home rent-free during that period, while John had to pay for more expensive accommodations (for most of that period). He also made the entire mortgage payments on the matrimonial home from the date of separation until November 2019 and half of the mortgage payments until June 2021. According to John, Lydia in fairness should be required to pay occupation rent to him during that time. His counsel also argued that John was unable to bring an interim motion for sale of the matrimonial home during that period (which would have ended Lydia’s rent-free occupation) because he was prohibited from doing so by court order since December 2019.
[173] Lydia does not agree that the matrimonial home should be sold, arguing that it would be in the best interest of the parties’ son to continue to reside in the matrimonial home with his mother. In her closing submissions, Lydia’s counsel also notes that the costs of alternative living accommodation would be more than Lydia’s carrying costs to continue to live in the matrimonial home.
[174] As explained below, Lydia also disputes that she should be ordered to pay occupation rent. She seeks a post-separation adjustment in her favour with respect to the mortgage payments she has made since July 2021, when John unilaterally ceased paying half the mortgage payments on the matrimonial home.
[175] Lydia contests John’s position that as a matter of fairness she should be required to pay occupation rent for 38 months from May 2018 until July 2021. Since the parties’ separation, Lydia has continued to reside in the matrimonial home along with their son, who was and continues to be in her primary care. It is common ground that until John departed for Ghana in December 2017, he made the entire mortgage payments for the matrimonial home. However, without notice to Lydia, he stopped making mortgage payments at that time, which required Lydia to assume that responsibility. When John returned to Canada in May 2018, he resumed making the monthly mortgage payments, but did not pay Lydia any amount for child support or contribute to their son’s s. 7 expenses. Once John was ordered (on consent) to pay child support in December 2019, the parties began to split the mortgage payments, but John unilaterally ceased during so in July 2021, again leaving Lydia to pay the entire amount. It is only fair that John should continue to share the mortgage payments, as he did prior to July 2021.
[176] Lydia also disputed John’s submission that he was precluded by court order from bringing a motion for the sale of the matrimonial home, arguing that he was free to seek leave to bring a motion for the property’s sale but did not do so.
[177] Lydia also seeks a vesting order in her favour with respect to John’s 50 per cent interest in the matrimonial home. Her counsel argues that a vesting order is required in this case to secure John’s obligation to pay retroactive and prospective child support, his share of their son’s s. 7 expenses, and his equalization payment to Lydia. Her counsel submits that a vesting order is necessary, given John’s past conduct, including his failure to pay child support until ordered to do so in December 2019, and even then, not making any payments until 2021. She also cites the risk that he will leave the jurisdiction to avoid his child support and equalization obligations, given his residential base in Ghana and past pattern of frequent travel to Africa.
C. Analysis and Conclusion
[178] As explained below, I have decided to order the sale of the matrimonial home and (except as noted below) equal division of the net sale proceeds between the parties. Instead of a vesting order, I am ordering certain payments in Lydia’s favour out of John’s share of the net sale proceeds. I am also dismissing John’s claim for occupation rent as well as Lydia’s claim for a post-separation adjustment for mortgage payments Lydia has made since July 2021.
(a) Partition or Sale
[179] As a joint owner of the matrimonial home, John has a prima facie entitlement to an order for the property’s partition or sale. While it is in the court’s discretion whether to grant such an order, the discretion is limited to cases where the moving party has behaved in a malicious, vexatious or oppressive manner toward the respondent: Silva, at p. 441. The onus was on Lydia to demonstrate that was the case. She has not satisfied that onus.
[180] John says that he seeks sale of the matrimonial home to fund his living expenses and other financial obligations (including his child support obligation to the parties’ son), given his reduced financial circumstances as a retiree who has depleted the registered savings he accumulated over his working life. While the unknown extent of his property and financial resources in Africa may provide some suspicion about the extent of his impecuniosity, I see no evidence that he acts out of malice or vexation in seeking to enforce his rights as a joint tenant.
[181] As well, the evidence does not support the conclusion that John has engaged in oppressive conduct. After the parties’ separation, he did not move precipitously to have the property sold, which permitted Lydia and their son to continue to live in the matrimonial home. Post separation, he also resumed making mortgage payments (after a few months of not doing so), in whole or in part, until July 2021. I have no doubt that it will be disruptive for Lydia and the parties’ son to move to alternate accommodations upon the property’s sale. However, in all the circumstances, Lydia has not demonstrated that she (or their son) would suffer oppression as a result of John’s conduct in seeking the property’s sale.
(b) Occupation Rent
[182] The court has a discretion in matrimonial cases to order occupation rent when it is reasonable and equitable to do so: Griffiths, para. 49. I have decided not to exercise that discretion in John’s favour. I have also decided not to make a post-separation adjustment in Lydia’s favour with respect to mortgage payments Lydia has made since July 2021, when John stopped paying half of those amounts.
[183] John has not resided in the matrimonial home since the parties’ separation in May 2018. During that time, Lydia had the benefit of doing so to John’s exclusion, but the matrimonial home was also the residence of the parties’ son, who remains in Lydia’s primary care. While the expenses and upkeep of the matrimonial home generally fell to Lydia, John paid all or (from December 2019) half of the mortgage payments until July 2021, when he unilaterally ceased doing so, leaving it to Lydia to pick up the slack. As well, John did not reach into his pocket and pay anything toward their son’s support until sometime in 2021, despite being ordered to do so on an interim basis (on consent) in December 2019.
[184] Weighing the foregoing considerations, I do not consider it to be reasonable or equitable to order Lydia to pay occupation rent to John. As well, I see no reasonable basis for awarding a post-separation adjustment in Lydia’s favour relating to mortgage payments she has made since July 2021.
(c) Vesting Order
[185] Since I am granting John’s motion for sale of the matrimonial home, I see no compelling reason to impose a vesting order relating to John’s joint interest. Instead, I am ordering certain payments in Lydia’s favour out of John’s equal share of the net sale proceeds. Those payments will include (i) any amounts due to Lydia under the final order as of the sale’s closing date, and (ii) interest on those amounts at the statutory post-judgment rate.
[186] As well, consistent with the proposal in John’s closing submissions, the amount paid to Lydia from John’s share of the net sale proceeds shall also include an advance payment of child support in the amount of $12,000 (about 2.9 years of child support at the current monthly rate), to be credited against monthly child support payments due to Lydia following the sale’s closing date. Since John’s obligation to pay child support is not required to be secured by life insurance, the final order will also provide (for greater certainty) that no amount of the advance child support payment shall be recoverable from Lydia by reason of John’s death.
VIII. Disposition
[187] Accordingly, a final order will issue as follows:
a. The parties are granted a divorce, to take effect in 31 days from the date of these Reasons for Judgment.
b. John shall pay child support to Lydia for the parties’ son, calculated as follows:
i. Commencing June 1, 2018, $435 per month is payable, based on John’s 2018 income of $46,878,
ii. Commencing January 1, 2019, $378 per month is payable, based on John’s 2019 income of $41,709,
iii. Commencing January 1, 2020, $382 per month is payable, based on John’s 2020 income of $42,119,
iv. Commencing January 1, 2021, $484 per month is payable, based on John’s 2021 income of $52,547,
v. Commencing January 1, 2022, $347 per month is payable, based on John’s estimated 2022 income of $39,000, and
vi. Any interim child support payments John made pursuant to Kristjanson J.’s endorsement dated December 5, 2019, are to be credited against those amounts.
c. The parties shall be responsible for payment of s. 7 expenses relating to their son in proportion to the parties’ respective incomes.
d. John’s share of s. 7 expenses that Lydia incurred on or before June 30, 2022 is fixed at $1,600, payable by John to Lydia within 60 days.
e. For s. 7 expenses incurred after June 30, 2022, John shall be responsible for paying 39 per cent and Lydia shall be responsible for paying 61 per cent. The proportion of s. 7 expenses payable by the parties shall be subject to prospective adjustment after June 30, 2023, based on the parties’ respective incomes for the previous calendar year. The party incurring an expense may claim reimbursement of the other party’s proportionate share by providing the other party with a receipt or other documentary proof that the expense was incurred. The other party shall respond to the request for payment within 15 days. To the extent practical, a party proposing to seek reimbursement for an expense shall consult with the other party prior to incurring the expense. The other party shall promptly respond to the first party’s proposal to incur the expense.
f. By June 30 each year, each party shall provide the other with the income and other information required by s. 25 of the Federal Child Support Guidelines with respect to the previous calendar year, including the party’s complete personal income tax return and every notice of assessment and reassessment. That obligation shall remain in effect for as long as the parties’ son is a child within the meaning of the Guidelines. That income disclosure is intended to permit the updating as of July 1 each year of John’s monthly child support payments (as well as the parties’ proportionate share of s. 7 expenses) based on the parties’ respective incomes for the previous calendar year.
g. Within 60 days, John shall pay $11,646.65 to Lydia to equalize the parties’ net family properties as of May 11, 2018. On consent, the parties’ African properties were not included in the equalization calculation.
h. The matrimonial home shall be sold and the net proceeds divided equally between the parties, except as provided below. Within 45 days, the matrimonial home shall be listed for sale with a real estate agent to be chosen by Lydia, after consultation with John. The parties shall sign any required documents and otherwise co-operate in the property’s sale. The parties shall share equally the cost of any home repairs that the listing agent recommends to list the property.
i. The following amounts shall be deducted from John’s equal share of the net sale proceeds and paid to Lydia: (i) unpaid amounts due to Lydia under the final order as of the sale’s closing date; (ii) interest on those amounts at the statutory post-judgment rate, and (iii) an advance payment to Lydia of child support in the amount to $12,000, to be credited against monthly chid support payments due to Lydia following the sale’s closing date. For greater certainty, no amount of the advance child support payment shall be recoverable from Lydia by reason of John’s death.
j. Support deduction order to issue.
k. Each party’s claim for spousal support from the other is dismissed.
l. Unless settled between the parties, costs will be determined based on written submissions.
m. Any other claims advanced by the parties that were not otherwise addressed on a final basis in this order or in Faieta J.’s endorsements dated March 10, 2021 and May 14, 2021 are dismissed.
[188] If the parties cannot agree on costs, each party may serve and file brief written submissions (not to exceed three pages) together with a bill of costs and any relevant offers to settle within 21 days. Each party may respond by brief written submissions within 14 days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.
R. A. Lococo J.
Released: September 15, 2022
COURT FILE NO.: FS-19-9498-00 (Toronto)
DATE: 20220915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Koblah Dosu
Applicant
– and –
Lydia Fifame Dosu
Respondent
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Released: September 15, 2022
[^1]: There were other property transactions (or proposed transactions) in Ghana and Benin that are the subject of dispute between the parties. I am not making further reference to those properties since they do not appear to have any significant bearing on the issue of income imputation.
[^2]: John’s claim that he owned that asset at the date of marriage was also discussed in court when counsel appeared before Kimmel J. in October 2021 on the previously scheduled trial date. In her endorsement adjourning the trial dated October 13, 2021, Kimmel J. included a direction that each party deliver an updated financial statement, noting “for clarity” that “it is anticipated that the applicant’s updated financial statement will include a deduction for the value of his “pre-teemster’s” (sic) pension at the date of marriage.”
[^3]: The letters from the representative of the administrator of the Pepsi (Teamsters) pension plan are included in trial exhibit 6.
[^4]: One exception is a debt of $5,356.54 for “House Repair Bill”, included in John’s NFP Statement. As explained below under “Post-separation adjustments”, I am not including that expense when calculating the parties’ NFPs for equalization purposes.
[^5]: In her closing submissions, Lydia’s counsel erroneously states the amount as $3,080.09, which was the amount of an adjacent item in John’s Financial Statement.