COURT FILE NO.: 537/16
DATE: 2022/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fatima-Ezzahra El Ouazzani
Applicant
– and –
Noureddine Chabini
Respondent
Eve Theriault, for the Applicant
Gonen Snir, for the Respondent
HEARD: September 26, 27, 28, 29, October 3, 4, 5, 6 and 7, 2022
REASONS FOR JUDGMENT
Justice A. Doyle
[1] The court presided on a 9-day trial dealing with the parties’ financial issues arising from their 5-year marriage.
[2] On consent, the parties agreed on the following: parenting issues; that the date of separation is August 9, 2016; and a divorce. An order will be issued as per the consent order.
[3] The parties’ consent parenting agreement provides that the parties’ 9-year-old son, Sidi, will continue to reside with the applicant wife and spend time with the respondent husband on a gradual increasing basis. By March 2023, the husband will be with his son every second weekend.
[4] On February 4, 2020, on a motion for summary judgment, Justice Champagne ordered the following on a final basis:
The wife will have final decision making responsibility;
The wife will have primary residence of the child; and
The husband will pay child support in accordance with the Federal Child Support Guidelines, SOR/97-175. There was no amount specified.
[5] On an ongoing basis, the parties agree that any future s. 7 special and extraordinary expenses incurred by the wife, to which she is requesting contribution from the husband, will require her to consult with the husband to obtain his consent. Furthermore, the parties agree that consent shall not be unreasonably withheld.
[6] The issues for determination are as follows:
What is the equalization payment owing?
How should it be paid?
What are the post-separation adjustments?
What retroactive child support and s. 7 expenses are payable?
Is the wife entitled to ongoing spousal support?
What, if any, retroactive spousal support is owing?
Does the wife owe occupation rent from August 2016 to April 2018?
[7] For the reasons set out below, the court orders the following.
[8] The husband will pay the wife an equalization payment of $16,699.23 by way of a roll-over from his pension and grossed up by the tax payable to the wife when she receives the pension income. The parties are encouraged to agree to the tax rate and obtain assistance from Mr. Martel or another expert.
[9] From the wife’s share of the net proceeds from the sale of the matrimonial home, the wife will pay the following amounts to the husband:
$2,662.81 representing a reimbursement of the payment of the legal aid lien from the sale proceeds from the matrimonial home;
$2,000.00 representing the husband’s share of the balance that the wife withdrew from the joint bank account after the date of separation; and
$1,887.13 representing the amount of $24,843.38 (owed by the wife to the husband for the post-separation adjustments as set out below) minus $22,956.25 (the retroactive spousal support owed by the husband to the wife from the date of separation to December 1, 2017 when he commenced paying spousal support pursuant to Justice Audet’s Order).
[10] From the husband’s share of the net proceeds from the sale of the matrimonial home, the husband will pay the following amounts to the wife:
$1,000.00 in costs payable from the Order of Justice Swartz dated May 26, 2021;
$8,257.00 representing retroactive child support;
$8,861.75 minus tax deductions/credits for daycare;
$613.49 for dental expenses (if not reimbursed by his dental plan);
$1,559.35 for camps minus tax deductions/credits; and
$726.00 for Kumon.
[11] The parties are to discuss and agree on the amount of tax deductions/credits available to the wife for daycare and camps even if she did not claim the same.
[12] Commencing November 1, 2022, the husband will pay ongoing spousal support in the amount of $2,000.00 per month for 18 months. The final payments of spousal support will be May 1, 2024.
[13] The husband’s claim for occupation rent is dismissed.
[14] In the event the parties are unable to agree on tax deductions or tax rates or there is an addition/subtraction error, the parties may request an audience before me, through the trial coordinator’s office.
Background
[15] The parties were married on September 2, 2011, in Morocco. At that time, the husband was residing in Kingston Ontario, and the wife was residing in Safi, Morocco. The parties met through their respective families, with the prospect of marrying each other. The parties married a few days after their initial meeting.
[16] The wife had been previously married and was divorced in April 2011. Her first husband appealed the final decision, and in the fall of 2011, the wife received approximately $1,700.00 CDN from the appeal. The wife’s mother collected the funds to pay the wife’s legal fees.
[17] After their wedding, the husband returned to Canada to resume his work as a college professor at the Royal Military College in Kingston. During the first year of the marriage, the wife remained in Morocco to continue her studies and to work.
[18] The husband visited the wife in Morocco frequently for one to two weeks and the parties spoke regularly on the phone.
[19] The husband sponsored the wife to come to Canada and she moved to Canada in November 2012 after obtaining Canadian permanent residency.
[20] The mother has been working with the Canadian Armed Forces in accounting since July 2022 and is on probation for three months. Her income is $20.00 per hour which translates to approximately $36,000.00 per annum.
[21] After the separation, the wife remained in the matrimonial home located at 1722 Reginald Bart Drive, Kingston until December 2017. The matrimonial home was sold in April 2018 and the real estate lawyer currently holds approximately $74,000.00.
[22] In September 2016, the husband commenced paying child support and paid the majority of the carrying costs of the matrimonial home until it was sold in April 2018.
[23] In December 2016, the wife commenced this court application.
[24] Justice Audet’s Order of November 30, 2017, provided for, among other things, the following:
Commencing December 1, 2017, the father will pay child support in the amount of $1,092.00 per month;
Commencing December 1, 2017, the father will pay spousal support in the amount of $2,715.00 per month;
The wife was entitled to proceed with the sale of the matrimonial home and if the husband failed to co-operate, the wife could proceed with the sale without his consent; and
The wife was permitted to amend her application to include a divorce.
Issue #1 What is the equalization payment?
[25] The parties originally filed a Net Family Property Statement Comparison setting out the highlighted areas of disputed figures.
[26] The original areas of dispute included the value of the husband’s properties in Morocco, treatment of the husband’s pension, and the value of household items.
[27] Once the evidence was completed, the parties confirmed that they were agreeable to how the husband’s pension was to be treated and were not far apart in the values for the various Moroccan properties. However, the parties disagree on treatment of other assets and debts.
[28] At trial, the wife’s final position was that the husband owes her an equalization payment of $24,935.14, and it should be paid from his share of the matrimonial home sale proceeds.
[29] The husband’s final position at trial was that he owes the wife an equalization payment of $10,125.39, and it should be paid by way of a roll over from his pension.
Discussion
Real Properties
[30] The Ontario Legal Aid lien was repaid from the proceeds from the sale of the matrimonial home. It has been placed on the matrimonial home as a result of the wife’s retainer of her lawyer through the Ontario Legal Aid Plan.
[31] The parties agree that the wife is fully responsible for the payment of this lien.
[32] Therefore, the wife owes the husband one half of the amount of the legal aid lien of $2662.81 which was paid from the husband’s share of net sale proceeds from the sale of the matrimonial home.
[33] Regarding the husband’s Moroccan properties, the evidence establishes that his father died when he was four years old (in 1977). His mother passed away in August 2010.
[34] The husband’s five brothers and four sisters inherited some of the properties. In addition, he and his brothers purchased other properties.
[35] When his brother, Mohammed, passed away in 2012, his widow and children were beneficiaries of his estate. As set out below, the husband bought out part of Mohammed’s interest in certain properties.
[36] Originally, in her testimony, the wife provided estimates of the six Moroccan properties owned by the husband based on her observations. The court will not accept the values that she placed on the various properties because:
She is not an expert;
She did not review the court registry documents;
She is not familiar with values of properties as she has no expertise in this area;
She relied on hearsay from conversations she heard between the husband’s siblings; and
She was guessing at the values.
[37] The husband’s expert, Abdellatif Aissi, gave evidence regarding the values of five of the properties. He was qualified as an expert in property values in Morocco due to his vast experience in this field for 30 years. He had provided expert evidence on numerous occasions and is well educated and very experienced in this field.
[38] The parties’ evidence aligns in some aspects, as they agree that all the Moroccan properties were owned by the husband at the date of marriage, that the husband’s brother Mohammed died in 2009 and that the husband bought out some of Mohammed’s share in 2012.
[39] The parties also agree on the general description of the properties, their location and that the husband owns the properties with other individuals, specifically his siblings. In her final submissions, the wife’s Net Family Property statement reflected some of the values set out by the expert.
[40] The parties also agree on the appropriate exchange rate to be applied to the values that were provided in Moroccan dirhams to Canadian dollars at the date of marriage and date of separation.
Decision
[41] The following is my decision on the values to be attributed to the parties’ various assets/debts at the date of separation and date of marriage.
Asset/Debt
Description
Comments
Applicant Wife
Respondent Husband
Matrimonial Home
1722 Reginald Bart Drive
sold in April 2018
Sale proceeds in trust
$5325.63/2 amount deducted to pay the wife’s legal aid lien
The wife owes the husband ½ of the lien amount that was paid out of the husband’s share from the sale proceeds
$37,347.38
$37,347.38
Property #1
House in Morocco – Quartier Djerifates, Safi
2 levels
husband owned it before marriage with 6 brothers
after his brother Mohammed passed away, he bought a portion of his interest from Mohammed’s beneficiaries (his wife and children and husband’s mother).
Husband’s interest is 29.5%
(632 parts of 2352)
Dispute exists on title regarding the husband’s brother (Mohammed)’s children.
I accept the expert’s value.
There has been ongoing litigation on this property commencing 2016. The expert indicated that these issues can take years to resolve.
The husband argues that he cannot sell or use this property for security and hence this value should not be included for the purposes of equalization of net family property. The wife indicates that the issue is likely to be resolved as it involves family matters.
The court notes that the family to date have been able to work out agreements, e.g. the husband buying out part of the Mohammed’s interest in the home.
The court has not heard the exact details of the issue outstanding. It only heard evidence in a general nature from the husband and the expert. No documentation was filed to set out the details of the issue, who in particular is involved, the details of the Moroccan legal and registry system as to how these issues are resolved, the strength of the claim and the defence. The court did not hear from a Moroccan lawyer regarding the chances of success in this litigation nor whether it is a frivolous claim or a claim with merit.
The court permitted the parties to provide submissions as to whether the value should be discounted for the contingencies if the husband’s share in this property is devalued or eliminated.
No evidence was led as to how the court should quantify this discount for contingencies.
Given the above, the court will include this value of the property at the date of separation and it will not be discounted.
$23,520.35
Property #2
Property in Morocco (Quartier Mestari, Safi)
2 levels
4 owners
inherited from his mother’s estate
0.52%
Husband owns 0.52% according to the expert.
I accept the expert’s value as presented in the Husband’s NFP statement.
The court heard that there were issues that again arose in 2016 on this property. For the reasons articulated above regarding property #1, the court will include the full value of this property in the husband’s Net Family Property.
$414.60
Property #3
Property in Morocco – Quartier Rbat, rue Fquih Draoui, Safi
Husband owns it with brothers and sisters (used monies from mother’s estate)
9.09% interest
Total 11 owners
According to the expert, the husband owns 9.09%
I accept the expert’s value as set out in the Husband’s NFP statement.
According to the expert, property is old.
$1,340.00
Property #4
Property in Morocco
Land for construction at Douar Daijate, Jemaat Sehaim
Owned it before marriage
Bought by husband and siblings
Total 7 co-owners
After his brother Mohammed’s death, he bought a share of his interest from his wife and children and his mother
Note that he indicates that an individual is claiming an interest in this land
His ownership is 20.91%
I accept the expert’s value as set out in the Husband’s NFP statement.
Property is in litigation as another individual claims he bought the property as well.
Dispute is in the land registry office and will likely end up in the court system. It may take years to resolve.
However, this dispute arose in 2020 after the separation and does not affect the value of the property at the date of separation in 2016.
$1667.15
Property #5
This is agricultural land owned before marriage.
The husband owns 12.8% according to the expert and 28.93% according to the husband.
15 owners
Based on the evidence of the expert and the calculations to Canadian dollars the value is $3750.63
$3,750.63
#6 property
This is agricultural land inherited from the husband’s mother but not in his name yet.
The husband states that the value is $3618.
The wife concedes that since title has not been transferred to the husband then no value should be attributed to the husband.
No value is attributed to this asset.
Household furnishings
Wife states in her financial statement dated August 2022 that furniture is valued at $5,000.00 but in her NFP statement, she states it is worth $2,000.00
The husband submits that it is valued at $5,000.
I find that the household items are valued at $5,000.00 which is the original value placed by the wife and in accordance with the husband’s evidence of what was purchased during the marriage including appliances and furniture, and that it remained in the home after the separation with the wife.
$5000
Vehicle
Jewellery
Wife sold a vehicle after the date of separation as she required funds to purchase an airline ticket for herself, son, and mother to Canada. She sold it under value and admitted under oath that it is worth more than what she sold it for.
The wife states that the jewellery was sold after separation to assist her in the purchase of the airline tickets to Canada at the date of separation.
The parties agree on this value.
No valuation was provided nor receipts from the sale
$6,700.00
$9,270.00
Mercedes 190 (in Morocco)
Both parties agree that the value of the Husband’s vehicle is $8,677.60 but in his final NFP he indicates $8,661.00
The court has placed the value of this vehicle as indicated by the parties’ original NFP statements as they had agreed on this value
$8,677.60
2007 Nissan Versa
Both parties agree that the value of the husband’s vehicle is $7,697.00
The court has placed the value of this vehicle as indicated by the parties’ original NFP statements as they had agreed on this value.
$7,697.00
Bank accounts and investments
The parties agree on the balances on the parties’ accounts and investments
The husband wishes a return of ½ of the balance owing on the joint bank account that existed at the date of separation. Immediately after separation the wife removed $4,000.00 from the parties’ joint account.
The monies in that joint bank account were deposits from the Canada Tax benefit for the child.
Regardless of the source of the funds in the bank, it is a joint account, and each party is entitled to ½ of the value as at separation date. Therefore, the wife owes the husband $2,000.00 from this joint account.
$2,018.81
$14,211.59
Husband’s Public Service Plan
The Family Law Act, R.S.O. 1990, c. F.3 provides that the net family property is created by listing the assets/debts in each parties’ names. The decision of how the equalization payment is to be made, whether by roll over or other means, is decided after the equalization payment is calculated.
As per Guy Martel’s actuarial report dated October 2022
$213,288.00
Money owed by the husband to Canada Revenue Agency for the RRSP used at the time of purchase of the matrimonial home as a first-time home buyer
The husband borrowed $25,000 from his RRSP for the down payment on the purchase of the matrimonial home.
At the time of separation, he had $21,636.00 still owing.
The wife was unclear how she calculated $200.00 per month for several years.
The court accepts the husband’s evidence on what is owing. The husband’ evidence is compelling as he produced his notice of assessment for 2016 showing the amount owing. I accept the husband’s figures as set out in his notices of assessment.
The remaining issue is whether the husband can declare this balance owing as a debt as he will have an RRSP after he completes the balance owing which is as of 2021 $13,184.00.
The court agrees with B. (J.) v. M. (D.), 2014 ONSC 7410 at paras. 138-140 which indicate that it is not a debt because it represents both a debt and an account receivable on an RRSP. Therefore, the husband is not entitled to a deduction.
Debts
The parties agree on the balance owing on the husband’s credit cards and line of credit with the Royal Bank of Canada.
The husband is responsible for the A/E card, its interest, and balance owing as it is in his sole name even though the wife was a secondary card holder.
$16,758.93
Contingent taxes for RRSP
The husband is entitled to deduct contingent taxes estimated by Guy Martel at 23%
$48,826.84
Property at the date of marriage:
Moroccan land
The court accepts the expert’s valuation of these lands at the date of marriage. The court accepts the figures presented by the husband which rely on the expert’s values and testimony and the exchange rate from Dirhams to Canadian dollars as agreed by the parties
$24,588.56
Property at the date of marriage
Wife says the husband’s value of property including 2 vehicles is $24,085.59 (which includes $13,101 for the Mercedes and $10,984.59 for the Nissan Versa)
The husband says it is $24,676
The values of these 2 vehicles is $24,085.59.
$24,085.59
Property at marriage
Bank accounts and savings
Originally, the wife submitted that the husband had $95,542.30 in bank accounts and the husband indicated $99,490.17.
In her final NFP statement she indicates $95,630.28 and the husband maintains that he had $99,490.17 in his final NFP statement.
Given there was no evidence led on these assets and it is the husband’s responsibility to prove values of assets. No exhibits were filed confirming the value of his bank accounts at the date of marriage. The court will accept the wife’s value.
$95,630.28
Household items at the date of marriage
I accept the husband’s testimony that he had an apartment full of furniture at the date of marriage.
However, I am not prepared to accept it had a value of $2,000.00 as the description included minimum furniture for a one-bedroom apartment
The value is $1000.
$1,000.00
Wife’s jewellery
I accept that wife had jewellery at the date of marriage and the value of the jewellery did not increase during the marriage
$9,270.00
Debt to lawyer on first marriage
The wife admitted that she owed the lawyer for the appeal by her first husband.
($1,700.00)
[42] The wife’s NFP is $52,766.19 and the husband’s NFP is $101,024.10.
[43] Therefore, the husband owes the wife an equalization payment of $24,128.96.
How should the equalization payment be paid?
[44] The wife is requesting that the equalization payment be paid from the husband’s share of proceeds from the sale of the matrimonial home. The husband states that he is in a precarious financial situation, and that he has incurred substantial debt, including increased balance owing on his line of credit and credit card.
[45] He is requesting that the equalization payment be paid via a rollover from his pension plan.
[46] Section 9(1) of the Family Law Act, R.S.O. 1990, c. F.3 sets out the court’s powers when dealing with the form of payment:
In an application under section 7, the court may order,
a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;
b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;
c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and
d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1); 2009, c. 11, s. 25.
[47] However, the court has discretion in how the payment should be made if it meets the criteria set out in s. 10.1(4) of the Family Law Act which reads:
(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:
The nature of the assets available to each spouse at the time of the hearing.
The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
Any contingent tax liabilities in respect of the lump sum that would be transferred.
The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources. 2009, c. 11, s. 26.
[48] The court will order the equalization payment to be paid by way of a rollover from the husband’s pension because:
− The husband’s pension comprises a large portion of the parties’ NFP;
− A lump sum is available under the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II;
− This will ensure resources are available to the parties to meet their needs in retirement;
− It is desirable for both parties to maintain some financial resources;
− If the husband pays the equalization payment from his share of the sale proceeds, he will have less funds available for his debts; (The court acknowledges that the wife has also accumulated debts from her student loans to support her educational pursuits);
− From his share of the net proceeds, he will be required to pay retroactive child support and s. 7 expenses;
− The husband also has a debt owing to CRA for his home buyers loan from the RRSP (which requires payment otherwise it is added to income and taxed);
− From this decision, he will continue to be obliged to pay both spousal support and child support;
− His rental accommodations since separation have been modest and it was only recently that he moved into a two-bedroom apartment to accommodate visits with Sidi;
− Although the equalization payment is not significant, a payment from the sale proceeds will work some financial hardship on the husband; and
− The wife is 38 years old and has not established any pension plan. A payment by way of a rollover will permit her to commence her own pension fund which she can contribute to in the future if she so chooses.
[49] Accordingly, the equalization payment owed by the husband will be paid by way of a rollover in the amount of $24,128.96 plus a gross up for tax purposes as the wife will ultimately have to pay tax when she receives the pension income. The court directs that the parties discuss the appropriate tax rate for the gross up and request an estimate from Mr. Martel if they cannot agree.
Ongoing Child Support
[50] A final order for child support was rendered by Justice Champagne. At the time, the court did not have the husband’s complete tax returns and paystubs.
[51] Ongoing child support will be payable based on the husband’s annual income of $138,000.00. Therefore, commencing November 1, 2022, the husband will pay to the wife child support in the amount of $1,209.00 per month.
[52] There will be an annual adjustment after the parties exchange their most recent income tax return and notice of assessment from the previous year. The documents will be provided by June 1st of each year and the adjustment is effective June 1st.
Retroactive Child Support
[53] The wife has requested a retroactive adjustment of child support for each year based on the husband’s Line 150 income. The husband did not communicate an objection to the figures provided by the wife.
[54] The court accepts the wife’s figure of $8,457.00 owing by the husband for retroactive child support calculated as follows:
− 2016: $123,187 and the table amount of $1,061 per month was payable;
− 2017 $126,326 and the table amount of $1,087 per month was payable;
− 2018: $151,369 and the table amount of $1,309 per month was payable;
− 2019 $142,736 and the table amount of $1,245 per month was payable;
− 2020 $125,882 and the table amount of $1,114 per month was payable;
− 2021: $146,513 and the table amount of $1,274 per month was payable; and
− 2022: estimated income of $138,000 and the table amount of $1,209 per month was payable.
Section 7 expenses
[55] The wife admits that she did not consult nor obtain consent from the husband before incurring any of the s. 7 expenses. Some of these expenses were incurred years ago.
[56] There was correspondence from her lawyer forwarding some of the receipts from daycare.
[57] Justice Champagne noted in her summary judgment decision that the husband has made it clear that he wanted no communication from the wife.
[58] The wife did not instruct her solicitor to forward information regarding these s. 7 expenses or obtain his position. Receipts were sent regarding daycare expenses and were brought forward at the motion before Justice Champagne who declined to deal with this issue on a summary judgment motion and determined that it should be adjourned to the trial as there was a genuine issue to be tried.
[59] The wife is requesting $19,372.12 in retroactive s. 7 special and extraordinary expenses.
[60] For the reasons that follow, the court orders the husband to pay his proportionate share of the net daycare expenses, dental costs, Kumon costs, and certain summer camps.
Legal Principles
[61] An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, (Toronto: Irwin Law, 2009), p. 227, 231:
Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K. 2012 BCSC 435, [2012] B.C.J. 593 (SCJ).
The framework is as follows:
Does the expense fall within the listed special or extraordinary expenses?
Is the expense necessary in relation to the child’s best interests?
Is the expense reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?
Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?
[62] As stated in Titova v. Titov, 2012 ONCA 864, 29 R.F.L. (7th) at para. 23:
In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
[63] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See Park v. Thompson (2005) 77 O.R. (3d) (ON CA).
[64] As stated in Douglas v. Mitchell, 2009 42451 (Ont. S.C.):
A parent’s decision to incur expenses, whether extraordinary or otherwise, is part of the responsibility that parenthood entails. The court must not permit control of the payment of special expenses to become a trophy in the parents’ battle with each other for power in relation to their child. The responsibility that custody entails carries with it the right to incur necessary and reasonable expenses on behalf of the child. As desirable as it is for a custodial parent to consult the non-custodial parent and engage him or her in negotiations on the issue of special expenses before incurring them and applying to the court for an order compelling the other parent to contribute, there are too many factors that may militate against such engagement for the court to make it a pre-requisite for obtaining an order. The failure of a claimant spouse to make any effort to consult the other and engage him or her in negotiation before applying to the court for an order may well be a factor for the court to consider in exercising its discretion as to whether to order the other spouse to contribute.
The payor should be notified of the activity and the cost. Romeo v. Naidoo, 2006 ONCJ 302. A custodial parent does not have carte blanche to enroll a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs: Forrester v. Forrester 1997 15466 (ON SC), [1997] O.J. No. 3437 (Ont. Fam. Ct.), para 4; Zimmerman v. Doe, 2007 28755 (ON SC), 2007 CarswellOnt 4721, (Sup. Ct.), para. 11.
Discussion
General comments
[65] The wife filed a detailed list of s. 7 expenses categorizing the expenses. Some receipts were provided.
[66] Section 7 expenses do not require prior consultation for allowable expenses, but a failure or refusal by a claiming parent to discuss an expense with the other parent in advance bears on the court’s exercise of its discretion in determining whether it is reasonable. However, where consultation would be meaningless due to chronic default of payor, or attitude of payor, prior consultation should not be required. See: Yeo v. Hutcheson, 2020 ONSC 1256.
[67] In addition, as will be explained below, the court is not retroactively imputing income to the wife and hence the proportionate sharing of those allowable retroactive section 7 expenses will be in accordance with the ratio set out in the wife’s materials presented in the final submissions.
Daycare
[68] The wife is claiming childcare of $10,990.79. She has not provided the net amount of daycare costs which takes into consideration tax credits and deductions.
[69] The mother’s claim for daycare is based on her being able to pursue her studies since separation and since July 2022, when she commenced working.
[70] The court finds that the wife’s daycare costs were reasonable and necessary.
[71] The husband was not communicating with the wife and admitted that he was told by his Moroccan lawyer not to communicate with the wife.
[72] At the critical time of incurring of this expense, he was not prepared to communicate with her and hence no arrangement was made for him to pick up the child from school.
[73] The court will consider only the daycare costs for the receipts that were provided which amount to $8,861.75 (which include receipts from the YMCA from 2017 to 2021 and Tiny Hoppers receipts from 2018 to 2019).
[74] The husband will be responsible for this amount after all tax credits and deductions available to the wife regardless of whether she claimed the same. Within 30 days from release of this decision, the wife’s counsel will provide the husband’s counsel with her calculation using the Divorce mate calculations based on the incomes of the parties for the relevant years.
Dental expenses
[75] The wife recently incurred dental costs for Sidi and is requesting that the husband pay his proportionate share in the amount of $613.49.
[76] I find that these dental bills were necessary and in the best interests of Sidi. The lack of consultation with the husband will not be a bar to this expense.
[77] In my view, meeting the child’s dental needs is a mutual obligation of both parents. The child’s health should not be sacrificed due to the lack of communication between the parties.
[78] Dental expenses are necessary and in Sidi’s best interests. It is an expense that ought to be paid by the husband if his dental plan will not reimburse the amount.
[79] The husband is prepared to submit these claims to his insurer to determine if they will honour them and agrees to reimburse the mother for the amount, if any, reimbursed by his insurer.
[80] Otherwise, the husband will pay for his share of $613.49.
Activities
[81] A general comment about sports: Section 7 requires that for activities to be qualified as a section 7, it must be extraordinary. Consideration must be made as to the level of child support being paid by the payor.
[82] The court disallows reimbursement for the following expenses for expenses claimed by the wife.
Martial Arts
[83] In total, the wife is requesting $1,412.52 for karate and Tae Kwon Do, i.e.:
− Karate for 2021: $107 US per month (after $95 sign-up fee) and Tae Kwon Do $80 for 3 months.
Skating
[84] The wife has regularly enrolled the child in skating lessons. She claims $343.67 for 2021-2022. Again, this is not an extraordinary expense and will not be reimbursed.
[85] In my view, these expenses should have been discussed with the husband. These expenses are not essential and do not rise to the level of daycare and dental expenses; they are an extra expense.
Camps
[86] The wife is claiming for camps. Again, she did not consult the husband.
[87] However, these expenses were incurred at times in lieu of daycare in 2022. In addition, the wife believed that Sidi would benefit from camps that provide physical activity and social opportunities. They include:
− Trampoline: $1,163.13 (Trampoline camp PD Day $45 per day), and
− Science camp: $396.22.
[88] These are necessary expenses and in Sidi’s best interests. The husband's income is such that he should contribute to these camps.
[89] The husband will be responsible for the amount of $1,559.35 (after tax) if camps are permitted to be deducted for tax purposes. Within 30 days, the wife will provide the calculation.
Arabic
[90] Regarding language lessons, the wife is claiming $3,559.50 in Arabic lessons.
[91] Again, the wife does not have all the receipts. She has provided an undated payment receipt for $62 and another receipt for $941.22 for April 2018.
[92] The wife submits that Arabic is her mother tongue and if the parties had still been together, both parties would have wanted Sidi to learn the language.
[93] The wife argues that the opportunities for Sidi to speak Arabic in Kingston are limited and it is part of his culture and heritage.
[94] The husband objects as he was not consulted, and he denies the mother’s assertion that this topic was discussed in 2021. In addition, Egyptian Arabic is different from the Arabic spoken in Morocco.
[95] In my view, although this expense is an educational expense, the wife should have consulted with the husband as to which Arabic lessons were available to meet Sidi’s particular needs and what was affordable to the family.
[96] Therefore, the court does not permit this claim.
Kumon
[97] There was no educational report filed that stated the child was required to pursue tutoring course for four years in 2018.
[98] She is requesting $833.76.
[99] However, I accept that the wife was advised by the school that Sidi was lagging behind in reading. I find that she acted in the child’s best interests to obtain tutoring assistance for Sidi, especially as English is herthird language. She also decided to supplement this tutoring with math assistance.
[100] Therefore, the court finds the Kumon lessons were necessary, in the child’s best interests, and within the financial means of the parties, who both hold education to be of the utmost importance. The father has post-doctoral degrees and the wife herself has a number of diplomas/degrees.
[101] The receipt produced for Kumon is $726 and the husband will be responsible for this amount which represents his proportionate share.
Spousal support
[102] The starting point for spousal support is s.15.2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which sets out the court’s jurisdiction to make a final spousal support order:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
[103] Subsection 15.2(4) directs the court to take into consideration the “condition, means, needs and other circumstances of each spouse”. It reads as follows:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[104] These statutory objectives must be considered when the court considers entitlement, quantum, and duration of spousal support.
[105] In the leading Supreme Court of Canada decisions Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.
[106] In Bracklow, at para. 23, the court emphasized the needs based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.
[107] On the other hand, the compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution of the economic consequences of the marriage between the parties Compensatory support recognizes sacrifices, contributions and benefits of the parties during their interconnected economic lives.
[108] Moge and Bracklow set out the following examples of compensatory support:
(a) A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
a. A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;
b. A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;
c. A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;
(b) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
[109] The SSAG set out the following examples of economic disadvantage:
Home with children full-time or part-time
Secondary earner
Primary caregiver of the children after separation
Moving for payor’s career
Support for payor’s education or training
Working in family business
[110] One needs to ask where the recipient would be if he or she continued in the labour market, not where he or she was years ago.
[111] At para. 32 of Bracklow, the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence.” The Court stated that marriage is an “economic partnership” based on mutual support. The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.”
[112] All of the statutory objectives set out in (6) must be considered, as no one objective is paramount. Rather, the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances: see Bracklow and Moge.
Discussion
Background
[113] Some background information regarding the wife is helpful at this point.
[114] This is the wife’s second marriage.
[115] At the time of the marriage to the husband, the wife was a student at a Moroccan university and was working at Chopinos, a company in Morocco, from 2010 to 2012, completing accounting, bookkeeping, and some human resources tasks.
[116] After she arrived in Canada in August 2012, she became pregnant, and Sidi was born on September 8, 2013.
[117] The wife was a full-time homemaker and cared for the home and child while the husband continued working as a professor at the Royal Military College.
[118] The court finds that as a full-time homemaker, she did the majority of the childcare and housekeeping. The husband would participate at times, organizing laundry and taking the family grocery shopping.
[119] The family had a reasonable lifestyle, purchased a single-family home, and visited Morocco on a regular basis to visit family mostly during the summers, staying months at a time.
[120] During the marriage, the wife did not work. Attempts were made later in the marriage when according to the wife, Sidi was 2 years old (2014), and the wife was encouraged by the husband to work. The wife applied to Tim Hortons and Mary Browns’ in Kingston and received interviews from both employers.
[121] The evidence of the wife is that the parties decided that she not accept the job at Mary Browns’ as, the cost of daycare for Sidi would be prohibitive and not economical. Sidi was only in daycare 2- days per week from 9 a.m. to noon. The husband did not dispute this.
[122] While in Morocco in August 2016, the wife indicated that she could not reach the husband as his phone was off. She was told by his sister that he had returned to Canada without them.
[123] She sold her jewellery and car and used the funds to purchase tickets for herself, son and her mother to return to Canada. From Montreal where they landed, she paid for a cab to return to Kingston to find that the husband was not there.
[124] She found out later that the husband was still in Morocco.
[125] She later learned from her family that the husband had commenced a court action in Morocco requesting an annulment based on deceit. His position is that he was not told by the wife at the time of their marriage that she was previously married.
[126] He returned to Canada and on August 19, 2016, he arranged to pick up his personal items including clothing from the matrimonial home.
[127] In September 2016, he commenced paying her $1,037.00 per month as child support and he paid the mortgage, taxes, insurance, and home phone on the matrimonial home.
[128] She paid her cell phone, internet, and cable.
[129] After separation, the wife was not idle.
[130] She took an English as a second language course at St. Lawrence College and completed the intermediate and advanced levels.
[131] She then took the medical/dental program online based in Montreal and received her certificate in 2017.
[132] After working for H & R Block for tax season in January to April 2018, she applied for the full-time program in St. Lawrence College in the accounting program.
[133] It was a 3-year program, and she took courses in the summer to complete the diploma earlier.
[134] She took human resources courses in the first year but changed to business administration accounting in the second year, and was given credit for her human resources courses.
[135] During her studies, she received OSAP loans/grants.
[136] In 2019, she received a $8,297 grant and a $7,196 loan for a total of $15,493.
[137] She was required to complete an internship when courses were completed.
[138] The student services office helped her with her resume, and she applied for accounting internship positions. She obtained a position with Correction Services.
[139] She completed the course and graduated in June 2020 with a business administration diploma in accounting.
[140] While at school, she worked part-time at H & R Block.
[141] Due to the Covid-19 pandemic and resulting school closures, the wife remained at home with her son and when he returned to in-person learning, she applied for work.
[142] She received a job offer in October 2020, but her friend could not babysit her son, so she declined the job offer.
[143] She then applied for a Bachelor of Business Administration at Laurentian University. It was an on-line course.
[144] She was permitted to apply, as her GPA was over 3.0 at college and she commenced the program in January 2021.
[145] She understood that a degree was required to be able to obtain her accountant’s CPA designation but in cross-examination, she admitted that this may not be the case.
[146] She took 1.5 years to complete the program and completed it in May 2022.
[147] Her OSAP loan/grant was as follows: 2021-22: $2,0241 grant and $8,212 loan for a total of $28,453.
[148] After her graduation, she applied to 19 jobs and received 10 interviews.
[149] She turned down a job that would require her to work until 5:30 p.m. because it would prevent her from picking up her son from daycare at the required pick-up time of 5:00 p.m.
[150] On July 6, 2022, she obtained work with the Canadian Armed Forces for $20.07 per hour at 7.5 hours per day, with benefits to commence after the three month probationary period.
[151] At separation, the wife remained in the matrimonial home until December 2017 and the closing date for the sale was April 2018. She indicated that she wanted to move out earlier than the closing date to ensure her privacy, as the new purchasers wanted regular access to the home.
[152] While the wife and the child resided at the matrimonial home, the husband made payments for the mortgage, realty taxes, home phone, heat hydro, and insurance.
[153] The wife paid her cell phone, TV cable, and internet.
[154] Her resume indicates the following:
− Bachelor of Business Administration Laurentian University 2020-2022;
− St. Lawrence college business administration – advanced accounting diploma 2018-2020;
− Medical dental secretary course 2017-2018;
− ISIMA Technician Computer Development diploma 2007-2008;
− Université poly disciplinaires Économiques Management 2005-2007;
− Kachkat bachelor in Experimental Science 2005; and
− Her previous employment includes H & R block, assisting in the completion of tax returns from 2017 to 2018.
[155] Turning to the husband: The husband is well accomplished and has a very impressive resume which includes a Ph.D. and post-doctoral studies at Princeton. He is in the electrical and computer engineering department at the Royal Military College. As part of his professorship obligations, he researches, and writes and presents papers. He is given research grants to complete his required tasks. These grants are used for expenses, including paying graduate students, travel to conferences, and fees. The evidence indicates that he received the following research grants:
− 2022: $2,000
− 2019-2022: $14,700
− 2016-2019: $22,800
− 2013-2016: $15,000
− 2010-2013: $33,000
[156] Once he incurs an expense, he submits the expense, and he is later reimbursed. The grant is strictly for repayment for research and is not income to the husband.
[157] In summary, this is a marriage of under five years. It is of short cohabitation, but the impact on the wife was significant. The wife left her home country where she was completing her studies and working. She came to Canada and became a full-time homemaker for approximately four years. Since the separation, she has taken extensive courses and successfully found full-time employment in her field.
[158] The husband has been paying spousal support pursuant to the order of Justice Audet since December 1, 2017, and he continued to pay the mortgage, taxes, and carrying costs on the matrimonial home.
Discussion
[159] Firstly, the wife is entitled to spousal support on both a needs and compensatory basis.
[160] Her income is substantially less than the husband and she has ongoing needs for herself and her child who resides with her.
[161] Secondly, there is a strong compensatory element: she gave up her studies and work to immigrate to Canada and become a full-time homemaker. She did gain some advantages as she was able to complete a few diplomas/degrees and learn another language (English).
[162] The court notes that it has now been six years since the separation, and he has been paying spousal support for almost five years.
[163] Since separation, she had full-time care of Sidi.
[164] She admits to some self-sufficiency and intends to continue her studies and perhaps complete a Ph.D. through her employer. She enjoys studying but the court does not oblige the husband to fund her further education.
[165] The wife’s contributions to the husband include taking over the household and childcare duties, which allows the husband to pursue his career as a professor and become an associate professor.
[166] Her ability to work as during the marriage was limited due to daycare issues. She had to turn down a job offer from Mary Browns and after separation, her choice of work was dictated, in part, by the hours of work as she is required to pick up the child from daycare by 5 p.m.
[167] Therefore, although this was a short-term marriage, there is a strong compensatory element to spousal support.
[168] Regarding duration, the court notes that fortunately, she was greatly financially assisted by the husband as he continued to pay a large portion of the carrying costs of the matrimonial home while she resided there. This allowed her to continue with her studies.
[169] He has paid spousal support for five years.
[170] The range under the SSAGs is from three years to 16 years.
[171] The court has considered the objectives under the Divorce Act.
[172] The wife requests either a review or at least 18 to 24 months of spousal support.
[173] A review is inappropriate in accordance with Fisher v. Fisher, 2008 ONCA 11, 288 D.L.R. (4th) 513. It is an exceptional order and should only be ordered if there is an event anticipated in the future requiring another court intervention.
[174] The Court finds that the appropriate duration in this matter is 18 months. She has, in the past several years, obtained extensive education and has now worked in her field.
[175] A further 18 months will mean that the wife will have benefited from approximately eight years of spousal support payments (from the date of separation until May 2024).
Should the wife’s income be imputed?
[176] In determining the quantum of spousal support, the court must determine the wife’s income. The husband alleges that the wife should have worked in 2018 when she completed her medical/dental course or alternatively in 2020 when she completed her diploma at St. Lawrence College.
Legal Framework
[177] The test for imputing income for child support purposes applies equally for spousal support purposes. Rilli v. Rilli, [2006] O.J. No. 2142 (Ont. S.C.); Perino v. Perino 2007 46919 (ON SC), [2007] O.J. No. 4298 (Ont. S.C.).
[178] As stated in Kinsella v. Mills, 2020 ONSC 4785, 44 RFL (8th) 1:
[165] In the spousal support context, the ability to impute income applies equally to the payor and the recipient spouse, since one the objectives of spousal support is to promote the economic self-sufficiency of each spouse within a reasonable time, in so far as practicable (Juvatopolos v. Juvatopolos, 2004 34843 (ON SC), 2004 CarswellOnt 4423, 9 R.F.L. (6th) 147 (S.C.J.), aff’d 2005 35677 (ON CA), 2005 CarswellOnt 4774, 19 R.F.L. (6th) 76 (C.A.)). As the authors of the SSAG emphasize, by focusing on income, including the possibility of imputing income to the recipient spouse, the SSAG encourage “a more sophisticated analysis of "self- sufficiency" on the part of the recipient, rather than some rough-and-ready downward adjustment of the monthly amount of support” (at p. 137).
[179] Imputing income to support recipients is fair. Elmgreen v. Elmgreen, 2016 ONCA 849.
[180] Pursuant to Drygala v Pauli (2002), 2002 41868 (ON CA), 219 D.L.R. (4th) 319 (Ont. C.A.), the court is required to consider the following three questions:
− Is the spouse intentionally under-employed or unemployed? A spouse is intentionally unemployed when she chooses not to work when capable of earning an income. There is a duty to find income if the spouse is healthy.
− If so, is the intentional unemployment required by virtue of her reasonable educational needs?
− If the answer to Question #2 is negative, then what income is appropriately imputed in the circumstances?
Discussion
[181] Firstly, the wife was healthy and had an education and work experience from Morocco. She could have looked for work.
[182] However, the court finds that she had reasonable educational needs because:
− Although the wife was intentionally unemployed, the wife took an appropriate career path in education;
− Her career aspirations were reasonable;
− The length of time for study was not unreasonable;
− She was required to study English to make herself more employable in Kingston;
− The wife had more opportunities by continuing her studies rather than working as a medical/ dental assistant when she completed that program in 2018; and
− The wife could have commenced work after June 2020 when she completed her studies at St. Lawrence College but she is not to be faulted for continuing her studies and obtaining a degree from Laurentian University. Although there was evidence that a degree is not necessary to obtain a CPA designation, the court accepts the wife’s evidence that a degree opens opportunities in her field.
[183] The husband has numerous degrees including a post-doctoral degree from Princeton, and he should not be critical of the wife obtaining multiple degrees/diplomas.
[184] There is no evidence that the wife could have found employment in the IT field and that her Moroccan work experience and her education would qualify her to work in Canada.
[185] Therefore, the court finds that the wife’s income for the purposes of determining the quantum of ongoing spousal support is $36,000 which is her current income.
Quantum
[186] In determining the quantum of spousal support, which shall be $2,000 per month, the court has considered the objectives of the Divorce Act.
[187] Using a figure in the mid-range of the SSAGs using the parties’ current income, is appropriate because:
− The husband has debts including increased line of credit; at the date of separation his debts were $38,000 and his current balance owing is $62,000;
− The husband’s living expenses have remained frugal and he has a reasonable rent payable;
− The wife is now very educated having taken numerous courses after the separation;
− She has employment in her chosen profession;
− Daycare arrangements are in place;
− Her current financial statement shows rent of $2,400 per month;
− The wife’s outstanding student loan is approximately $20,000; and
− The wife admitted that the expenses set out in her financial statement are not always incurred.
− The mid-range of spousal support is $2,000 per month.
− This is an appropriate figure which takes into account the wife’s compensatory basis for spousal support and her needs as set out in her financial statement. It is less than what she is currently receiving but she is now working full-time, and she admitted that she is self-sufficient. Despite this admission, the court finds that pursuant to the SSAGs she is entitled to ongoing support for another 18 months.
[188] I refer to Fisher v. Fisher, 2008 ONCA 11, 288 D.L.R. (4th) 513, where the Court of Appeal stated that when dealing with the Divorce Act, which states as one of its objective is to promote self-sufficiency:
[52] Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is "practicable" to do so and where the objective can be realized "within a reasonable period of time". [page256]
[53] Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1, [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization [See Note 13 below] of their property), the duration of their cohabitation and any other relevant factors.
[54] Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower- income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.
[55] In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties' merger of economic lifestyles creates a joint standard of living that the lower- income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self- sufficiency because it is an objective that simply cannot be attained. See Linton at p. 27 O.R.
Retroactive spousal support
Legal Principles
[189] In Kerr v. Baranow, [2011] SCC 10, the Supreme Court set out the following principles for retroactive spousal support:
D.B.S. factors apply as modified for spousal support (circumstances of the spouse are relevant as opposed to circumstances of the child).
Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.
The failure to bring a temporary motion should not be penalize a recipient and the court should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case where the claimant moves the matter quickly to trial after obtaining disclosure.
At para. 208 the court states: “Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support”.
At para. 212, the court states that “D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.”
[190] Regarding tax issues, the court must discount the award based on the payor’s inability to deduct it.
[191] In Charron v. Carrière, 2016 ONSC 7523, 86 R.F.L. (7th) 108, the court netted down the retroactive support award by the mid-point of the parties’ respective tax rates.
Decision
[192] It is appropriate that there be a retroactive adjustment of spousal support from September 2016 to November 2017 for the following reasons:
i. The husband had formal notice of the spousal support claim since the commencement of the action in 2016 when the wife commenced this action;
ii. He was aware of his support obligations;
iii. It would not be a hardship to him, as it can be made payable in a manner that does not impose a burden to him;
iv. The wife was in need during that period of time; and
v. He had a substantial income.
[193] The wife has set out the quantum of spousal support based on the respective incomes of the parties in 2016. The husband’s income was $123,187 and the wife had no income. The calculation according to the wife’s SSAG calculations amounts to 20 months of retroactive support at the net amount of $22,956.25. This is using the midpoint of $2,682 per month using the SSAGs presented by the wife.
[194] This is an appropriate level of support which takes into account the wife’s situation that she found herself after the separation, i.e. no job, no income and being solely responsible for her son.
Occupation rent
Legal principles
[195] Claims for occupation rent are frequently seen in the family law context because many spouses share ownership of real estate, such as a matrimonial home. In those cases, a claim to occupation rent may arise as part of broader claims under family law legislation. For example, the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) grants the matrimonial home a privileged position among all property owned or possessed by spouses. While both spouses have a presumptive equal right to possession of the matrimonial home (FLA, s. 19(1)), a court may grant one spouse exclusive possession of the matrimonial home (s. 24(1)(b)). Under s. 24(1)(c), the court may order “periodic payments” to an ousted spouse when the other spouse is granted exclusive possession of a matrimonial home. While s. 24(1)(c) is not dependant on property ownership by either party, and does not refer to “occupation rent,” the right to exclusive possession has been used as the justification for ordering the payment of occupation rent.
[196] In Foffano v. Foffano (1996), 1996 8097 (ON SC), 24 R.F.L. (4th) 398 (Ont. S.C.), Steinberg J. stated at para. 24, that claims for occupation rent made by one spouse against the other spouse in regard to a matrimonial home “[w]ill be granted only in the exceptional case” (see also Withers v. Withers, 2013 ONSC 1665, 4 C.C.P.B. (2nd) 272 at para. 76). Steinberg J. expressed the policy reasons for that view in para. 22, which remain valid today within the family law context, as follows:
If, as the present law seems to be, no ouster need be proved for a joint tenant not in possession of the matrimonial home to claim occupational rent, that opens the door to such claims solely to counter legitimate claims for spousal and child support and equalization of net family properties. That was alluded to by Justice Casey Hill in McColl v. McColl, supra, at page 456. It makes little sense, in the vast majority of cases, that a non-dependent spouse or parent should be entitled to occupation rent simply because he or she left the matrimonial home and allowed his or her dependent spouse and children to occupy it. The right to occupation rent arose from the equitable remedy granted to a co-tenant not in possession to obtain an accounting from the tenant in possession, and at least one court considered that the use of the property in the affairs of "the whole family" did not give rise to the payment of occupation rent.
Discussion
[197] The husband is claiming the amount of $19,000 in occupation rent. His market rent appraisal indicated that half the monthly market rent would be $950. At 20 months for the wife’s occupation of the matrimonial home, this would amount to $950 for 20 months, equal to $19,000.
[198] This is not a case for an award of occupation rent and the court declines to exercise its discretion to award this equitable remedy because:
− The husband was not ousted from the home;
− He chose not to return to the matrimonial home;
− There was no evidence that the wife denied the husband access to the home;
− The wife did not delay the sale of the home but rather brought a motion for the sale and ultimately sold the home without the husband as he failed to cooperate and comply with Justice Audet’s Order;
− The husband delayed in bringing this claim in a prompt fashion as he filed the claim in his amended answer dated June 2021; and
− Given that the court has held the wife responsible for half of the carrying costs on the matrimonial home, then it would be double accounting to also expect her to pay occupation rent.
[199] Therefore, this claim is dismissed.
[200] There has been divided success. The court is not inclined to order costs. However, if the parties cannot resolve the issue of costs, then the wife may provide her two (2) page costs submissions along with any offers to settle and bill of costs by November 14, 2022, and the husband may provide his two (2) page costs submission along with any offers to settle and bill of costs by November 28, 2022. The wife may file a one (1) page reply by December 5, 2022.
Justice A. Doyle
Released: November 1, 2022
COURT FILE NO.: 537/16
DATE: 2022/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fatima-Ezzahra El Ouazzani
Applicant
– and –
Noureddine Chabini
Respondent
REASONS FOR JUDGMENT
Doyle J.
Released: November 1, 2022