ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michael Scheibler
Peter Howie, for the Applicant
Applicant
- and -
Betty Scheibler
Alnaz Jiwa, for the Respondent
Respondent
HEARD: December 13, 14 and 15, 2021 and by Written Final Submissions at Kenora, Ontario via Zoom
Mr. Justice J.S. Fregeau
Reasons for Judgement
INTRODUCTION
1The Applicant (“Mr. Scheibler”) and the Respondent (“Ms. Scheibler”) were married in Abbotsford, B.C. on August 2, 2000. This was a third marriage for each of the parties. On the date of marriage, Mr. Scheibler was 48 years of age and Ms. Scheibler was 45 years of age. The parties did not have children together nor did any children from previous relationships reside with them during the marriage.
2The parties separated on December 31, 2013. On the date of separation, Mr. Scheibler was 61 years of age and Ms. Scheibler was 58 years of age. This Application was issued on February 16, 2017.
3The issues to be determined are as follows:
Mr. Scheibler’s claim for spousal support, retroactive and ongoing, either by way of a lump sum payment or periodic payments;
Ms. Scheibler’s claim that Mr. Scheibler is intentionally underemployed or unemployed such that a reasonable income should be imputed to him;
The equalization of the parties’ Net Family Properties;
Mr. Scheibler’s claim for exclusive possession of the jointly owned matrimonial home and contents;
Ms. Scheibler’s claim that Mr. Scheibler pay occupation rent on account of his exclusive occupation of the jointly owned matrimonial home since the date of separation;
Ms. Scheibler’s claim for the repayment of expenses she has paid toward the jointly owned matrimonial home since the date of separation; and
Ms. Scheibler’s claim that she is the sole beneficial owner of the jointly owned matrimonial home.
BACKGROUND
4Counsel filed a lengthy and comprehensive Agreed Statement of Fact. My summary of the relevant, agreed facts is as follows:
Mr. Scheibler was employed as a truck driver when the parties met. Approximately two weeks before the parties married, he was injured in a motor vehicle accident. As a result of this accident, Mr. Scheibler stopped working as a truck driver.
Mr. Scheibler applied for Worker’s Compensation benefits in Alberta. His claim was initially allowed about two months after the date of marriage and then terminated approximately one year later. Mr. Scheibler successfully appealed the termination and received retroactive benefits. Approximately one year later, his benefits were permanently terminated.
The parties’ respective incomes for the years 2014 – 2020 were as follows:
The Applicant’s income tax returns and Notice of Assessment show:
| Year | Emply. Inc. Line 101 | Old Age Line 113 | CPP Line 114 | Self-Emply Inc. Line 162 gross | Self-Emply Inc. Line 135 net | Total Inc. Line 150 |
|---|---|---|---|---|---|---|
| 2014 | 840.00 | 0.00 | 2,220.00 | 4,816.00 | 4,816.00 | 7,876.00 |
| 2015 | 0.00 | 0.00 | 2,194.56 | 6,348.00 | 6,348.00 | 8,542.56 |
| 2016 | 0.00 | 0.00 | 2,220.84 | 6,750.00 | 6,750.00 | 8,970.84 |
| 2017 | 0.00 | 7,121.31 | 2,615.88 | 2,270.00 | 2,252.00 | 18,593.51 |
| 2018 | 0.00 | 7,121.31 | 2,615.88 | 2,270.00 | 2,252.00 | 18,593.051 |
| 2019 | 0.00 | 7,271.96 + 7,152.66 Line 147 | 2,474.52 | 0.00 | 0.00 | 16,899.15 |
| 2020 | 0.00 | 7,364.19 + 8,761.29 Line 147 | 2,521.56 | 0.00 | 0.00 | 18,647.16 |
The Respondents Notice of Assessment shows:
| Year | Emply. Inc. Line 101 | Old Age Line 113 | CPP Line 114 | Total Inc. |
|---|---|---|---|---|
| 2014 | 59,908.00 | 0.00 | 0.00 | 59,908.00 |
| 2015 | 64,012.00 | 0.00 | 0.00 | 64,012.00 |
| 2016 | 69,652.00 | 0.00 | 0.00 | 69,652.00 |
| 2017 | 60,222.00 | 0.00 | 0.00 | 60,222.00 |
| 2018 | 65,173.00 | 0.00 | 0.00 | 65,173.00 |
| 2019 | 59,758.00 | 0.00 | 7,640.00 | 67,398.00 |
| 2020 | 60,090.84 | 6,137.313 | 8,133.96 | 65,758.00 |
The matrimonial home is located at 203 Elliot Road, Emo, Ontario. It is comprised of three parcels, namely PCL 9977, PCL 10509 and PCL 15467.
Parcels 9977 and 10509 were purchased on November 15, 2000, for $89,000.00, including mortgage proceeds of $66,750.00. This mortgage was paid off after separation. PCL 15467, an adjacent lot, was purchased on April 30, 2003 for $12,000.00.
Mr. Scheibler has exclusively occupied the matrimonial home and adjacent property since the date of separation.
On July 10, 2012, Ms. Scheibler purchased real property located at 210 Elliot Road in Chapple, Ontario (“210 Elliot Road”). This property was registered in her name alone. The parties never resided in 210 Elliot Road. It was rented to third parties until 2015 and sold on May 6, 2016.
Since the date of separation, Ms. Scheibler has made the following payments in regard to the matrimonial home:
$16,738.29 for hydro, cable, internet and telephone in the years 2013, 2014, 2015 and 2016;
$56,124.86 for mortgage principal, interest and insurance;
$11,508.05 for real property taxes.
Since separation, Ms. Scheibler has paid $2,115.00 towards Mr. Scheibler’s automobile insurance.
Mr. Scheibler has operated the “Isaiah Wildlife Sanctuary” (the “Sanctuary”), including a small gift shop, on the premises of the matrimonial home since 2003. He has, over the years, advertised to rent rooms for nominal rates and to rent space for smaller camper trailers.
The Sanctuary’s website states, among other things, that Mr. Scheibler has nursed and released over 200 animals and birds in the years that it has been operational and that approximately 11,000 guests have visited the Sanctuary. Guests are encouraged to donate money to contribute to operational costs.
Mr. Scheibler does not keep records of revenue received from the operation of the Sanctuary as he was told by CRA that this was non-taxable income and that he did not have to maintain records.
Mr. Scheibler has chosen to work full time at the Sanctuary since separation and admitted in questioning that he works 14 hours a day/seven days a week at the operation.
Mr. Scheibler has never paid any rent to Ms. Scheibler during the time he has occupied the premises of the matrimonial home, either for his occupation of the home itself or for the use of the property for the Sanctuary.
In June 2018, Mr. Scheibler purchased a 2018 Dodge Grand Caravan for the Sanctuary operation. To do so, he obtained a bank loan in the amount of $43,682.33, on which he is required to pay $612.48/month. Mr. Scheibler has refused to disclose the related loan application.
Mr. Scheibler, in an affidavit dated October 1, 2020, deposed that “at the time of my marriage to [Ms. Scheibler] and for the duration of our marriage, up to the date of separation, I have never held employment or received employment income”.
Mr. Scheibler has advertised his personal landscaping business – “Landscaping by Visionscapes, The Sign of Excellence” – by placing signs adjacent to the highway that runs through Emo.
With the funds that he received after successfully appealing the termination of his Worker’s Compensation benefits, Mr. Scheibler expanded his landscaping business, including purchasing an excavator for $28,000.00 cash, a bulldozer, a bigger tractor and a cultivator disc.
In the second or third year of marriage, Mr. Scheibler purchased a tractor for $11,000.00 cash. In approximately 2005 or 2006, Mr. Scheibler purchased an all-terrain vehicle for $10,000.00 cash. At some point during the marriage, he also purchased “two dump trucks” for cash.
Mr. Scheibler is able to work at landscaping jobs, lawn mowing, welding work, mechanical work, heavy equipment operation repairs and maintenance and carpentry. He describes himself as a “jack of all trades”.
During the marriage, Mr. Scheibler also built and operated a motocross course. A used firetruck was purchased to water the track. The operation was sold during the marriage.
Mr. Scheibler has refused to disclose documents pertaining to his sponsorship of his fiancée from the Philippines, stating that “other people are helping with the expense”.
SUMMARY OF VIVA VOCE EVIDENCE
The Applicant’s Case
Mr. Scheibler
5Prior to the date of marriage, Mr. Scheibler was employed on a full-time basis as a driver and training driver for H & R Transport, earning an annual income of approximately $62,000 to $65,000/year, depending on miles driven in any particular year. He testified that prior to being involved in the motor vehicle accident in 2000, he had planned to retire “in a couple of years” but that “retirement came earlier than I expected because of the accident”.
6Mr. Scheibler testified that he contributed “at least one-half” of the funds for the $22,250 down payment for the November 15, 2020 purchase of the matrimonial home, with the sources of his share being a tax refund of approximately $9,000, Worker’s Compensation benefits of approximately $1,800 and funds from his bank account of approximately $2,000 to $3,000.
7The parties had discussed cutting and selling cordwood from the matrimonial home property to assist with mortgage payments, with the understanding being that Ms. Scheibler would continue with her employment and Mr. Scheibler being responsible for housework and “fieldwork”. PCL 15467, the lot adjacent to the matrimonial home property, which was purchased in 2003 for $12,000, was paid for with wood harvested from PCLs 10509 and 9977 and sold, according to Mr. Scheibler.
8Mr. Scheibler testified that he contributed significantly to renovations of the matrimonial home prior to separation, including changing carpets, redesigning the kitchen, replacing the bathroom and garage floors and building seven outbuildings.
9Mr. Scheibler testified that the concept of a wildlife sanctuary evolved from a passionate pastime of his to the established Sanctuary in the years immediately following the parties’ marriage. Apparently bears frequented the property which people came to view. People also began to bring him orphaned or injured animals to nurse, including raccoons, swans, bear cubs, birds, eagles and owls. Gradually, buildings to house the animals were built and visitors would attend and help care for and feed the animals. According to Mr. Scheibler, Ms. Scheibler assisted with some aspects of the operation and never expressed any concerns with it or the associated costs.
10Vehicle gas, vet bills and the purchase of special food for some of the animals were the most significant costs in the operation of the Sanctuary. Mr. Scheibler testified that the Sanctuary averaged about 1000 visitors per summer and that visitors generally make cash donations, averaging about $1,000/year, and in-kind donations to help meet expenses. Mr. Scheibler would also contribute to expenses from his self-employment income.
11According to Mr. Scheibler, he had previously been a “professional landscaper” when he resided in British Columbia. After marrying the respondent and moving to Emo, he had plans to start a nursery. However, Mr. Scheibler soon realized that he was unable to compete with existing nurseries and therefore did not proceed with this project.
12Mr. Scheibler also did what he described as “preliminary work” for a “10-hole golf course”. However, he was apparently unable to afford the special grass required for greens and this project did not proceed.
13Next, Mr. Scheibler developed a motocross track on what he described as “the third property”, which was purchased in 2004 “with wood money”. He testified that he hired a designer, purchased equipment and that the track became operational in July 2006. However, any revenue generated apparently simply covered the cost of insurance. The track ceased operation in 2009. Mr. Scheibler testified that he did not have enough time to devote to this enterprise, the Sanctuary and his landscaping business.
14The property at 210 Elliot Road is located across the road from the matrimonial home. According to Mr. Scheibler, he and the previous owners agreed on a price of $70,000 which was paid by way of “70 piles of $1,000”. He testified that he was “surprised” to learn that he was not on title to this property, suggesting that Ms. Scheibler provided instructions to their lawyer without his “OK” while he was working on a landscaping job.
15Mr. Scheibler’s knees and left foot were injured in the 2000 motor vehicle accident. He did not suffer any broken bones. He testified that he can no longer drive due to stress secondary to the accident. He provided no medical evidence of an inability to drive and did not suggest that he is unable to undertake other types of employment.
16Mr. Scheibler testified that he refused to attend re-training as suggested by Alberta’s Worker’s Compensation. He chose instead to “reclaim” the matrimonial home property for a nursery and/or to work as a landscaper because “[he] did it previously very successfully”. According to Mr. Scheibler, he started his local landscaping business in the summer of 2001 and operated it seasonally since then, except for the 2020 and 2021 seasons, due to the pandemic and the border closure. His work included lawn mowing, tree cutting and trimming and building retaining walls and patios.
17Mr. Scheibler has only a Grade 10 education, but is trained in welding, mechanics, woodworking and carpentry. However, he holds no formal certificates in any of these trades.
18Mr. Scheibler’s most recent Financial Statement is dated November 25, 2021. He testified that his primary income sources since separation have been CPP and OAS in the total amount of $1,813/month. This financial statement does not disclose any self-employment income, yet Mr. Scheibler testified that his pension income is supplemented with “some self-employment income”. He confirmed current monthly expenses of $2,768.
19The value of $1,000 placed on household items retained by Mr. Scheibler represents his “best estimate” of the value of “old and used” contents. The 1998 GMC, valued at $1,000 on the valuation date, is Mr. Scheibler’s estimate of its value, based on his disposal of it for $100 as scrap after separation. Mr. Scheibler values his 1996 Chevrolet at $3,500 on the valuation date, based on a purchase price of $3,500 in 2013. Tools, valued at $2,000 on the valuation date, were purchased second hand at yard sales and auctions. The tractor and “6-wheel ATV”, valued at $3,000 and $1,500 respectively on the financial statement, were purchased for $11,000 in 2002 or 2003 and $10,000 in 2005 or 2006, respectively. The valuation date values are Mr. Scheibler’s estimates of market value.
20Mr. Scheibler’s valuation date debts total $5,470. He lists current debts at $57,584, including a loan for the Dodge Caravan of with approximately $32,000 still outstanding as of September 24, 2021.
21In the November 25, 2021 financial statement, Mr. Scheibler deposes that he was owed $8,943 from the CRA on the date of marriage as a result of re-filing 10 years of tax returns improperly prepared by H&R Block. This entry is essentially corroborated by Mr. Scheibler’s May 25, 2001 Notice of Assessment for the tax year 2000, although the actual amount of the refund owing is shown to be $8,339.43. According to Mr. Scheibler, this tax refund, and/or retroactive benefits from Worker’s Compensation, funded his $10,000 purchase of the tractor.
22Mr. Scheibler testified that he and the respondent had well-defined roles during the marriage. Ms. Scheibler worked at Cloverleaf Family Grocers four days per week, in six-hour shifts, during the early years of the marriage. Her hours gradually increased to the point where she was working seven days per week, in addition to cleaning homes on the side, according to Mr. Scheibler. Mr. Scheibler testified that he “worked the properties” and was responsible for “95%” of meal preparation, as well as housekeeping. Mr. Scheibler insisted that the respondent never asked him to look for employment prior to separation and that after separation she never asked him to contribute to bills and the expenses of the matrimonial home, or to move out and/or sell the home, despite the fact that he lived there exclusively after separation.
23On cross-examination, Mr. Scheibler stated that he was led to believe that he was “rescuing [Ms. Scheibler] from a bad situation” by marrying her. He furthered testified that he “thought [he and Ms. Scheibler] were a team”, with Ms. Scheibler earning employment income and him working at his landscaping business and other pursuits seven days a week, 14 hours a day. When asked about his employability in light of this comment, Mr. Scheibler stated that he is able to work but prefers to control his own schedule.
24When asked why his financial disclosure did not provide any information about revenue or donations received by the Sanctuary, Mr. Scheibler suggested that there is really no “money coming in” at the operation. Mr. Scheibler was not able to explain why his various financial statements failed to disclose any significant self-employment income, despite describing himself as self-employed in the statements.
25When asked about the significant ($57,500) debts that he has accumulated since separation, Mr. Scheibler explained that the debt was primarily a result of expenses for the Sanctuary, but for $5,000 he borrowed for a vacation. His explanation for his refusal to disclose the loan application for the June 2018 $43,682 car loan was that his bank, Canadian Imperial Bank of Commerce (“CIBC”), had not provided it to him.
26Mr. Scheibler was referred to para. 8 of his October 1, 2020 affidavit, in which he deposed that he “ceased [his] self-employment activity in 2019” because he was fired by a client “in 2017” and that he believed the respondent was complicit in his being fired. He was unable to explain why he had earlier testified that he terminated his landscaping business due to the pandemic and the border closure.
27Mr. Scheibler confirmed that a $3,500.00 debt he allegedly owed to Barb and Paul Kyro on the valuation date has been forgiven.
28Mr. Scheibler was referred to a series of photographs of chattels at the matrimonial home. He confirmed that he owned the following chattels on the valuation date:
Brush hog
Finishing mower
Wood splitter
Post hole auger
Yanmar tractor
Big Country side-by-side ATV
Dual axle trailer
Grinder and cut off saw
Chainsaw
Hand saw and table saw
Snowblower, air compressor, drill press, welder
Seed spreader
29Mr. Scheibler agreed that not all of the above were listed on his November 25, 2021 Financial Statement and that values set out in that financial statement were his estimates of value.
30When questioned about property owned by Ms. Scheibler on the date of marriage, Mr. Scheibler did not dispute that she had:
$4,500 in a chequing account
$4,900 in an RRSP
$7,500 in a GIC
31He also agreed that Ms. Scheibler owed $8,000 for the 1995 Nissan Pathfinder on the date of marriage.
32When cross examined on the issue of spousal support, Mr. Scheibler acknowledged that he had various jobs both before and after the valuation date. He maintained that Ms. Scheibler should pay him spousal support so that he can carry on work at the Sanctuary.
Debra Morriseau
33Ms. Morriseau is Ms. Scheibler’s sister. Ms. Morrisseau was called by Mr. Scheibler. Ms. Morrisseau agreed that she is not currently on “friendly terms” with her sister. However, Ms. Morrisseau maintained that she was on friendly terms with Ms. Scheibler during her sister’s marriage to Mr. Scheibler. She described Mr. Scheibler as “an acquaintance”.
34Ms. Morriseau testified that Ms. Scheibler was not concerned about the fact that Mr. Scheibler was not employed during the marriage and that Ms. Scheibler preferred that he not be employed because it was nice for her to come home from work with all the housework done and supper ready.
35On cross examination, Ms. Morriseau acknowledged that she and the respondent are adversaries in litigation respecting their father’s estate, that she visited the parties’ home on only two occasions while they were together and that the parties have never visited her home.
Barbara Kyro
36Ms. Kyro is a board member of the Sanctuary. She also assists with animal rescues, care and rehabilitation. She has known the parties since approximately 2009.
37Ms. Kyrotestified that she has provided financial support, by way of gifts, to Mr. Scheibler, beginning with the gift of a second-hand truck worth about $3,500, in 2013. She explained that she did not want to see Mr. Scheibler without a vehicle which was needed for Sanctuary work. In addition to other miscellaneous financial support, Ms. Kyro also provided $4,500 to or on behalf of Mr. Scheibler for the sponsorship of his fiancé from the Philippines.
38Ms. Kyro has never had any financial concerns regarding the Sanctuary. She testified that there has never been any significant money received by way of donations.
The Respondent’s Case
Ms. Scheibler (aka Westover)
39Ms. Scheibler is 66 years old and has worked at Clover Leaf Grocers in Emo for 32 years. She currently works four days/week, nine to ten hours/day. Previously, she worked six days/week but she reduced her hours at the grocery store when she started working at the local gold mine in 2011. Beginning in 2011, she worked three days/week, eight hours/day at the gold mine but has since reduced that to four-eight hours/week.
40When married in 2000 and in the years following, Ms. Scheibler was working full time at the grocery store, five to six days/week and nine to ten hours/day. Currently, she is hoping to reduce her overall work commitment by about 50% and draw CPP and OAS to supplement her employment income.
41Ms. Scheibler testified that despite having been injured in the 2000 motor vehicle accident, Mr. Scheibler drove them to and from Abbotsford, B.C. for their wedding.
42According to Ms. Scheibler, Mr. Scheibler began his landscaping business in 2001 or 2002 while still receiving Worker’s Compensation benefits. This work continued, on a periodic basis, to the end of their relationship. In addition, Mr. Scheibler cut and sold pulp and firewood from their property and built and ran the motocross track. Mr. Scheibler was never physically unable to work at any time throughout their relationship, according to Ms. Scheibler.
43Ms. Scheibler explained that she grew up in a rural area with abundant wildlife, regularly feeding bears and deer and that the Sanctuary was essentially Mr. Scheibler’s advancement of this informal hobby or pastime.
44Ms. Scheibler testified that she asked Mr. Scheibler to look for salaried employment in the years following their marriage because she was working full time and paying all the bills. She further testified that he declined to find employment, did not contribute to household expenses and that he did not do any meaningful household work, but for cooking her supper infrequently. She disputed her sister’s evidence on this point and insisted that she never discussed any aspect of her marriage with her sister.
45According to Ms. Scheibler, she and the applicant stopped sharing a bedroom around 2008 and lived separate lives within the matrimonial home after that time. She did not leave the home at that time because she was the one paying the mortgage and all other bills and she therefore could not afford to live elsewhere. She eventually left the matrimonial home on the valuation date because her father had become very ill and asked her to move into his home to assist in his care.
46Ms. Scheibler testified that the previous owners of 210 Elliot Road, who were elderly, had talked to her and the respondent about selling their home. According to Ms. Scheibler, “we didn’t want the hunters to get it”, so she accumulated savings to be in a position to purchase it when it became available. She assumed that Mr. Scheibler was doing the same.
47Ms. Scheibler explained that the negotiations with the previous owners were a long, drawn-out process in which Mr. Scheibler was involved. They eventually agreed to sell for $62,000 and “I [Ms. Scheibler] was $10,000 short so [she] took out a $10,000 line of credit”. Ms. Scheibler insisted that she paid the entire purchase price for this property from her own funds.
48Ms. Scheibler testified that she rented out 210 Elliot Road after purchasing it, but that Mr. Scheibler collected and retained most of the rent. After she moved in with her father, the tenants moved out and Mr. Scheibler assumed possession and used the home as an Arts and Craft store. Ms. Scheibler testified, “that was about the end of it, I had had it with him and decided to sell”. It was sold for the same price she paid for it.
49Ms. Scheibler testified that she initially put Mr. Scheibler’s name on her bank account soon after marriage but that “he drained it” so she opened a new account and maintained separate accounts for the balance of their relationship. According to Ms. Scheibler, she “never saw any” of the money received from the sale of wood, from Mr. Scheibler’s Worker’s Compensation benefits or his income tax returns.
50Ms. Scheibler maintained that Mr. Scheibler did not contribute to the down payment for the matrimonial home, despite his promises to do so. He also paid nothing toward the mortgage, property taxes or utilities, according to Ms. Scheibler. Ms. Scheibler acknowledged that Mr. Scheibler did do some repairs and minor renovations to the matrimonial home.
51Ms. Scheibler was referred to her November 26, 2021 Financial Statement. She confirmed that her 2021 income was $74,362.00 and that her current income from employment was $4,123/month plus CPP and OAS in the amount of $1,180/month resulting in a total, current annual income of $63,636.00.
52Ms. Scheibler testified that, on the date of marriage, she had $4,500 in a CIBC chequing account, a $7,500 CIBC GIC, a $4,900 CIBC RRSP and $17,500 “received from Tracy Nielson, daughter, pursuant to separation”. Ms. Scheibler also testified that she owned a 1995 Nissan Pathfinder on the date of marriage, which she valued at $27,000.00.
53Ms. Scheibler agreed that title to the matrimonial home is in the joint names of her and Mr. Scheibler and that the mortgage was in both their names. She insisted, however, that she alone contributed to the down payment and that she could have qualified for the mortgage without the respondent.
54On cross examination, Ms. Scheibler agreed that approximately $19,000 of the purchase price for the Nissan Pathfinder was financed and represented a debt owing on the date of marriage.
55The parties agreed that the estimated fair market value of the matrimonial home as of September 26, 2001 was $297,000.00.
Mr. D. Holland
56Mr. Holland was qualified as an expert and entitled to testify as to his opinion of the market value of the matrimonial home and as to the fair market value for rent for the matrimonial home since the date of separation.
57Mr. Holland estimated that the fair market value of the matrimonial home on the valuation date was between $140,000 and $150,000.
58Mr. Holland opined that the fair market value rent for the matrimonial home in 2013 would have been in the $600 - $700/month range. According to Mr. Holland, this would have increased beginning around 2015 - 2016 with the opening of the gold mine, to approximately $1100 - $1200/month. Mr. Holland opined that the average fair market value rent over the period 2013 - 2021 was around $850 - $950/month.
THE POSITIONS OF THE PARTIES
Mr. Scheibler
Spousal Support
59Mr. Scheibler submits that he is entitled to spousal support on both a compensatory and non-compensatory basis.
60In support of his claim for spousal support on a compensatory basis, Mr. Scheibler notes that he relocated from British Columbia to Emo immediately after marrying Ms. Scheibler, that he ended his employment as a long-haul trucker shortly prior to marriage and that he was not employed during the marriage relationship.
61Mr. Scheibler submits that during the marriage, he assumed the role of homemaker while Ms. Scheibler worked outside of the home on a full-time basis. He further submits that Ms. Scheibler accepted his role without complaint and, in fact, appreciated coming home from work and having the housework completed and supper prepared by Mr. Scheibler. Mr. Scheibler submits that the evidence of Debra Morriseau, Ms. Scheibler’s sister, corroborates his evidence on this issue.
62Mr. Scheibler contends that in addition to assuming the role of homemaker during the marriage, he worked to improve the matrimonial home and adjacent property. He also devoted time and energy to starting business enterprises, such as a nursery, a golf course and the motocross track. While unsuccessful, Mr. Scheibler contends that it was his intention that the income generated from these enterprises would contribute to supporting he and Ms. Scheibler, alleviating the need for Ms. Scheibler to continue to work outside of the home.
63In support of his claim for spousal support on a non-compensatory basis, Mr. Scheibler submits that Ms. Scheibler was the primary income earner during their relationship and that the large income disparity which existed during marriage has continued since separation. The parties agree that Ms. Scheibler paid all of the household bills and expenses during the marriage from her employment income.
64Mr. Scheibler contends that his standard of living has declined significantly since separation and that his very modest annual income, from CPP, OAS and other government benefits, does not meet the expenses of his very modest budget, such that he is in need of spousal support. Ms. Scheibler’s income, almost three times more than his, significantly exceeds her expenses such that she has the ability to pay spousal support, according to Mr. Scheibler.
65Mr. Scheibler notes that he has not saved any money since separation and that he has accumulated debt of approximately $57,500 while Ms. Scheibler has been able to contribute significantly to an RRSP in the same time period.
66Mr. Scheibler submits that he was financially dependent on Ms. Scheibler throughout their 13-year marriage as a result of the parties’ disparity in income and that, after separation, he is unable to meet his own financial needs. Ms. Scheibler therefore has the ability to pay spousal support.
67Mr. Scheibler submits that he is entitled to spousal support at the high end of the range set out in the Spousal Support Advisory Guidelines (“SSAG”) for an indefinite period of time. Mr. Scheibler further contends that this is an appropriate case for a lump sum spousal support award.
Equalization of Net Family Property
68Mr. Scheibler contends that, but for his joint interest in the matrimonial home and his contents, he owned little property of any value on the valuation date. Other assets owned on the valuation date include:
1998 GMC
1996 Chevrolet 1500
Tools and machinery
Tractor and 6-wheeler ATV
69Mr. Scheibler submits that his valuation of the contents of the matrimonial home which he retained ($1,000) is unchallenged and that Ms. Scheibler has accepted the values he has provided for the 1998 GMC and the 1996 Chevrolet 1500 ($1,000 and $3,500 respectively).
70Mr. Scheibler values tools and machinery owned by him on the valuation date at $2,000. Neither party provided any third-party evidence on this issue and he submits Ms. Scheibler essentially accepted this valuation on cross-examination.
71Mr. Scheibler submits that his evidence as to the values of the tractor and 6-wheeler that he owned on the valuation date ($3,000 and $1,500 respectively) were not seriously challenged on cross-examination or by any evidence of Ms. Scheibler.
72Mr. Scheibler submits that he had debts in the amount of $5,470 on the valuation date, including the loan of $3,500 from Mr. and Ms. Kyro that was later forgiven.
73Mr. Scheibler contends that on the date of marriage he owned a 1978 Chevrolet truck worth $1,000 and that he had an outstanding income tax refund due to him in the amount of $9,000. The latter was corroborated by Mr. Scheibler’s 2000 Income Tax Return which established a refund of $8,339 owing to him. Mr. Scheibler also testified that he had savings of between $2,000 and $3,000 on the date of marriage.
74In addressing Ms. Scheibler’s net family property, Mr. Scheibler submits that 210 Elliot Road was worth more on the valuation date than the $62,000 suggested by Ms. Scheibler. Mr. Scheibler contends that Ms. Scheibler’s suggestion that she had no household contents or furniture on the valuation date is not realistic. He suggests that the court impute a $1,000 value to her for such items, consistent with the value acknowledged by him for such items. The parties agree that Ms. Scheibler’s 2004 Chevrolet Trailblazer was worth $3,000 on the valuation date.
75Mr. Scheibler submits that it is also not in dispute that Ms. Scheibler owned the following on the valuation date:
$4,377 in a CIBC chequing account
$2,552 in a CIBC savings account
$5,242 in a CIBC RRSP
76Ms. Scheibler’s only debt on the valuation date was the mortgage on the matrimonial home.
77Ms. Scheibler’s date of marriage assets are set out in her November 26, 2021 Financial Statement. Mr. Scheibler submits that there is “no air of reality” to Ms. Scheibler’s claim that she owned $2,000 worth of household goods and furnishings and $2,000 worth of jewelry and heirlooms on the date marriage but had none of these chattels on the valuation date.
78Mr. Scheibler submits that his evidence as to the purchase price and date of marriage value for Ms. Scheibler’s 1995 Nissan Pathfinder should be preferred over Ms. Scheibler’s. Mr. Scheibler contends that this vehicle was purchased in Steinbach shortly before marriage for $10,000 and by way of a $500 trade-in of Ms. Scheibler’s previous vehicle, a $2,000 down payment and an $8,000 vehicle loan. Mr. Scheibler submits that the net value of this vehicle on the date of marriage was therefore $2,000.
79Mr. Scheibler submits that Ms. Scheibler did not file any supporting documents to corroborate her assertion that she had $4,500 in a CIBC chequing account, $7,500 in a CIBC GIC and $4,900 in a CIBC RRSP on the date of marriage. Mr. Scheibler submits that Ms. Scheibler’s evidence alone is not sufficient to establish the ownership and value of these assets on the date of marriage, given that they were not disclosed on previous financial statements.
Exclusive Possession of the Matrimonial Home
80Mr. Scheibler submits that he is entitled to an order for exclusive possession of the matrimonial home and an order that Ms. Scheibler’s interest in the matrimonial home be transferred to him. According to Mr. Scheibler, he has resided in the matrimonial home since separation without interference from Ms. Scheibler, he has limited means to find alternate accommodation, he is operating a not-for-profit wildlife sanctuary on the property and he has a “spiritual connection” to the property.
81Mr. Scheibler is prepared to purchase Ms. Scheibler’s interest in the matrimonial home based on the current market value of the home and as a set-off against any equalization payment or lump sum spousal support payment found owing to him.
Ms. Scheibler
Spousal Support
82Ms. Scheibler submits that Mr. Scheibler has not established his entitlement to spousal support on either a compensatory or non-compensatory basis.
83In addressing compensatory spousal support, Ms. Scheibler submits that Mr. Scheibler had neither a home nor a job when he moved from British Columbia to Emo to live with her after the date of marriage and that this move therefore did not result in any economic disadvantage to Mr. Scheibler.
84Ms. Scheibler further submits that this is not a case where one spouse’s education, career development or earning potential have been impeded as a result of the marriage. The following material facts are not in dispute, according to Ms. Scheibler:
This was the third marriage for each of the parties;
The parties had no children or childcare responsibilities;
Neither party sacrificed any employment or career opportunities for the other.
85Ms. Scheibler submits Mr. Scheibler did not lead any evidence in support of the suggestion that he sacrificed employment opportunities or his income earning ability because of the marriage. She submits that the contrary is true; Mr. Scheibler did what he wanted when he wanted, including embarking upon a number of business proposals which all ultimately failed. Mr. Scheibler has not established an entitlement to spousal support on a compensatory basis, according to Ms. Scheibler.
86Ms. Scheibler also submits that neither the fact of their marriage or the disparity in their incomes, in and of themselves, establish a basis for non-compensatory spousal support and that Mr. Scheibler has not otherwise established an entitlement to spousal support on a non-compensatory basis.
87Ms. Scheibler submits that she was working at the time of the marriage and has worked continuously since that time. She also submits that Mr. Scheibler received Worker’s Compensation benefits during the first year of marriage and started his landscaping business at approximately the same time. Mr. Scheibler also harvested and sold pulpwood and firewood. She submits that he established, ran and sold the motocross enterprise and purchased numerous pieces of equipment, with substantial cash payments, to expand his landscaping business.
88Ms. Scheibler submits that the parties kept their finances separate during the marriage and that the numerous large cash purchases made by Mr. Scheibler during the marriage, with his own funds, corroborates her submission in this regard.
89Ms. Scheibler submits that Mr. Scheibler acknowledged that he has been self-employed during their marriage and working on a full-time basis at the Sanctuary rather than pursuing salaried employment. It is not disputed that Mr. Scheibler has never, in the years since separation, sought outside employment, according to Ms. Scheibler. Nevertheless, Mr. Scheibler conceded that he has the ability to be employed landscaping, welding, doing mechanical work, heavy equipment operation and repair and carpentry. Mr. Scheibler is a self-described “jack of all trades” capable of earing a reasonable income, according to Ms. Scheibler, yet prefers to direct his time and passion to the Sanctuary while at the same time pursuing financial support from her.
90Ms. Scheibler submits that Mr. Scheibler has not made any effort, let alone a reasonable effort, to become economically self-sufficient following their marriage breakdown. He has been and remains intentionally under-employed or unemployed, such that income should be imputed to him in the amount of $50,000/year at the time of separation and more thereafter, according to Ms. Scheibler.
91Ms. Scheibler notes that Mr. Scheibler borrowed $43,682.33 from CIBC in 2018 for the purchase of a motor vehicle and has failed to disclose the application for this loan. The loan application would obviously include a representation from Mr. Scheibler as to the income that he earned. The income he has disclosed in this proceeding would not support a loan of that amount, according to Ms. Scheibler.
92Ms. Scheibler also submits that Mr. Scheibler has sponsored a fiancé from the Philippines yet refused to disclose the details of that sponsorship, including his representations as to his ability to financially support his future partner.
93If some level of “transitional support” is found owing to Mr. Scheibler, Ms. Scheibler submits that his exclusive possession of the matrimonial home, together with her payment of utilities, taxes and mortgage principal and interest for the matrimonial home following separation, is fair and reasonable transitional support.
Beneficial Ownership of the Matrimonial Home
94Ms. Scheibler submits that the true beneficial ownership of the matrimonial home must be determined before the parties’ net family properties can be equalized. Ms. Scheibler submits that she paid the entire down payment and other closing costs when the matrimonial home was purchased in 2000 and that she paid the entire amount required to buy the adjacent lot in 2003. She also paid all the mortgage payments for the matrimonial home from the date of purchase until the mortgage was paid in full. Ms. Scheibler submits that her evidence on this issue was not seriously challenged, but for Mr. Scheibler giving vague and non-compelling evidence about his alleged contributions toward the down payment for the matrimonial home.
95In these circumstances, Ms. Scheibler submits that there is a presumption that Mr. Scheibler holds his joint interest in the property in trust for her. Where there is a presumption of a resulting trust as a result of one spouse paying for property, the onus is on the party resisting the imposition of a resulting trust to disprove the presumption that his spouse is the beneficial owner of the disputed property.
96Applying that rule of law to the facts, Ms. Scheibler submits that the presumption operates in her favour and that Mr. Scheibler has failed to rebut the presumption. Ms. Scheibler submits that she is therefore entitled to a declaration that she is the sole beneficial owner of the matrimonial home.
Occupation Rent
97Ms. Scheibler submits that Mr. Scheibler has exclusively occupied and engaged in the quasi-commercial use of the matrimonial home and adjacent property in the eight years since separation. During the same period of time, Ms. Scheibler contends that she alone paid the mortgage, utilities and real property taxes. She further submits that the expert evidence of Mr. Holland establishes that the average fair market value rent for the matrimonial home is between $850 and $950 for the period 2013 to 2021.
98In these circumstances, Ms. Scheibler submits that it is reasonable and equitable that Mr. Scheibler be required to pay to her occupation rent in the amount of $950/month, beginning January 1, 2014. Ms. Scheibler contends that the fair market value rent should not be divided in half when determining occupation rent because she is the sole beneficial owner of the property and Mr. Scheibler has occupied and utilized the entire property since separation.
Post-Separation Expenses Paid by Ms. Scheibler
99Ms. Scheibler submits that the Agreed Statement of Fact confirms the following:
Ms. Scheibler has paid a total of $16,738.29 for hydro, cable, internet and telephone at the matrimonial home since separation, including $582.82 for December 2013, the month of separation;
Ms. Scheibler has paid a total of $56,124.86 for mortgage interest, principal and insurance since separation;
Ms. Scheibler has paid $11,508.05 toward the property taxes for the matrimonial home since separation; and
Ms. Scheibler has paid $2,115.00 for Mr. Scheibler’s automobile insurance since separation.
100Ms. Scheibler submits that these after-separation payments made by her are proper adjustments for the court to make, subject to a determination of the true beneficial ownership of the matrimonial home and the issue of occupation rent.
101If she is declared to be the beneficial owner of the matrimonial home and if Mr. Scheibler is ordered to pay occupation rent, Ms. Scheibler concedes that she should be responsible for all mortgage costs and the property taxes since separation.
Equalization of Net Family Property
102Ms. Scheibler submits that Mr. Scheibler has willfully failed to comply with his disclosure obligations, both in regard to the existence of assets in his possession on the valuation date and the fair market value of assets which he has disclosed. Ms. Scheibler submits that Mr. Scheibler’s claim should be dismissed as a result of his non-disclosure.
103In the alternative, Ms. Scheibler submits that the court should find that the value of Mr. Scheibler’s undisclosed assets is equal to the value of the assets he chose to disclose and order an equalization of the parties’ net family properties on that basis.
Exclusive Possession of the Matrimonial Home
104Ms. Scheibler submits that there is no basis in law or fact that supports Mr. Scheibler’s claim for a final order granting him exclusive possession of the matrimonial home.
Divorce
105Both parties have requested a divorce order.
Discussion
106In my view, three of the issues can be disposed of summarily.
107First, a divorce order shall issue, as requested by the parties.
108Second, I reject Ms. Scheibler’s submission that she be declared the sole beneficial owner of the matrimonial home. Parcels 9977 and 10509 were purchased on November 15, 2000 for $89,000.00, with a CIBC mortgage taken out in the amount of $66,750.00. Title to the matrimonial home was registered in the name of both parties as joint tenants. The mortgage was in the name of both parties. Parcel 15467, an adjacent lot, was purchased on April 30, 2003 for $12,000.00. Once again, title was registered to the parties as joint tenants.
109Section 14(a) of the Family Law Act, R.S.O. 1990, c. F.3, as am., (the “FLA”) provides as follows:
- PRESUMPTIONS – the rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that the property is held in the name of the spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants.
110In this case, the parties took title to the first two parcels purchased as joint tenants. Two and one-half years later, title to the adjacent lot was also registered to the parties as joint tenants. This is proof, in the absence of evidence to the contrary, that the parties intended to own the matrimonial home property as joint tenants. As a result, Ms. Scheibler bears the burden of establishing a resulting trust in her favour.
111There is no evidence as to the intention of the parties when title to the matrimonial home was taken jointly. There is conflicting evidence as to whether Mr. Scheibler contributed to the down payment at the time of the purchase of the first two parcels and in regard to how the purchase price for the adjacent lot was paid in 2003. In contrast, I note that title to 210 Elliot Road was registered in the name of Ms. Scheibler alone when this property was acquired in 2012.
112This is not the case of a “gratuitous transfer” of property in which Ms. Scheibler owned the property in her name alone and thereafter transferred the property into the parties’ joint names. In this case, three months after marriage, the parties purchased a residence and put title in both their names. Three years later they did the same thing when an adjacent lot was purchased.
113Ms. Scheibler has not presented any evidence as to her intentions at the time of acquisition in support of her claim for a resulting trust, other than contested evidence as to the parties’ respective contributions to the initial down payment. Mr. Scheibler does not dispute that Ms. Scheibler paid the mortgage, taxes, utilities and other expenses for the matrimonial home, both before and after separation.
114Ms. Scheibler has failed to rebut the presumption of joint tenancy that arises when spouses hold real property as joint tenants. Her request for a declaration that she is the sole beneficial owner of the matrimonial home is therefore dismissed.
115Third, I reject Mr. Scheibler’s claim for a final order for exclusive possession of the matrimonial home and contents.
Possession of the Matrimonial Home
116Section 24(1)(b) and (d) of the FLA provide a court with jurisdiction to grant one spouse exclusive possession of a matrimonial home and contents. Section 24(3) of the FLA sets out the criteria that a court must consider in determining whether to make an order for exclusive possession. The criteria are:
(a) The best interests of the children affected;
(b) Any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) The financial position of both spouses;
(d) Any written agreement between the parties;
(e) The availability of other suitable and affordable accommodation; and
(f) Any violence committed by a spouse against the other spouse or the children.
117In this case, the only relevant factor is the financial position of the parties. There are no children or existing property or support orders and no evidence relating to the availability of other accommodation or family violence.
118In my opinion, there is no basis in fact or law for Mr. Scheibler’s claim for exclusive possession of the matrimonial home and contents. He has had 10 years following separation in which to obtain remunerative employment, re-organize his financial affairs and address his need for accommodation in light of the breakdown of the marriage and his inability to purchase Ms. Scheiber’s interest in the matrimonial home.
119Rather than doing so, he has continued to pursue a non-remunerative pastime as operator of a not-for-profit wildlife sanctuary on the premises of the matrimonial home property, jointly owned by Ms. Scheibler and paid for almost exclusively by her post separation. Mr. Scheibler fails to explain why Ms. Scheibler should continue to subsidize his chosen lifestyle by way of an order for exclusive possession of the jointly owned matrimonial home.
120In my opinion, any past or current financial inability on the part of Mr. Scheibler to obtain alternate accommodation is entirely self-inflicted. In any event, there is considerable equity in the jointly owned matrimonial home. It is reasonable to assume that Mr. Scheibler’s ability to afford alternate accommodation will be alleviated upon an equalization of the parties’ net family properties.
121Mr. Scheibler’s claim for exclusive possession of the matrimonial home and contents is dismissed.
Spousal Support
122Section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am., (the “Divorce Act”) requires a court, when considering a request for spousal support, to 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.
123Section 15.2(6) of the Divorce Act establishes the objectives of a spousal support order. A spousal support order should:
(a) recognize any economic advantage or disadvantage 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;
(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.
124The law as to the compensatory basis for spousal support is well established. The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the spouses of the economic consequences of the marriage. Compensatory support recognizes sacrifices, contributions and benefits of the parties during their interconnected economic lives.
125The most common situations leading to an award of spousal support on a compensatory basis are those where one spouse compromises his/her education, training, career development or earning potential to raise children of the marriage or does so to support the education, training or career of the other. Other examples include marriages in which a spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these same opportunities.
126Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420, remains a leading authority on the non-compensatory basis for spousal support. The fundamental principles set out in Bracklow were concisely summarized by Chappel, J. in Fyfe v. Jouppien, 2011 ONSC 5462, at para. 48:
The presumption in marriage is that spouses owe each other a mutual duty of support. This presumption of mutual support is rebuttable. Parties to a marriage may alter this presumption, either through explicit contracting or through the structuring of their daily affairs, to show disavowal of financial interweaving.
When a marriage breaks down, the presumption of mutual support no longer applies.
Marriage does not, in and of itself, automatically entitle a spouse to support. It is not the bare fact of marriage so much as the relationship that is established and the expectations that may reasonably flow from it that give rise to the obligation of spousal support under the statutes.
In Bracklow, the Court emphasized the importance of analyzing the nature of the parties’ relationship during the marriage to determine whether there was any evidence as of the separation date to rebut the presumption of mutuality and interdependence in the parties’ relationship. This analysis must start with a presumption of interdependence between the parties.
127In Lazare v. Heitner, 2018 ONSC 3604, at paragraphs 27 and 28, McGee, J. observed that the nature of a spousal relationship may shift or alternate over the course of marriage. If a spouse is financially dependent when the marriage ends, the Divorce Act requires that spouse to make reasonable efforts to return to independence, or if independence is no longer possible, the highest measure available. Non-compensatory support primarily addresses the financial need of a dependent, lower income earning spouse by asking what amount within the means of the higher earning spouse over what period of time, ought to be paid to support the journey towards financial independence. In other words, what amount, paid over what period of time will recognize the nature of the failed relationship, relieve resulting economic hardship and promote self-sufficiency?
128In Gray v. Gray, 2014 ONCA 659, at para. 27, the Court stated that need, in the context of relieving economic hardship, should be assessed through the lens of viewing marriage as an economic partnership. In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which he/she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support himself/herself, in light of his/her income and reasonable expenses.
129I reject the submission that Mr. Scheibler is entitled to spousal support on a compensatory basis.
130There is scant evidence as to Mr. Scheibler’s circumstances at the date of marriage, namely August 2, 2000. What evidence there is indicates that he terminated his employment as a truck driver shortly prior to marriage as a result of being involved in a motor vehicle accident. After marriage, he moved to Emo, Ontario to reside with Ms. Scheibler. They purchased the matrimonial home in November 2000.
131Mr. Scheibler was 48 years old when he married Ms. Scheibler and moved to Emo. He had been injured in the motor vehicle accident but there is no medical evidence that he was physically unable to work. In fact, he started a landscaping business soon after he relocated to Emo and carried on this business for the better part of 20 years. Over this time period, he also initiated several other business ventures, all of which were ultimately unsuccessful.
132Mr. Scheibler testified that he and Ms. Scheibler had well-defined roles within their marriage – he was a full-time homemaker, responsible for meal preparation and all other household tasks, in addition to “working the properties” and maintaining and renovating the matrimonial home. It is not in dispute that Ms. Scheibler worked outside of the home on a full-time basis. According to Mr. Scheibler, Ms. Scheibler was thankful to come home to a clean house, with the laundry done and supper prepared. This evidence was contradicted by Ms. Scheibler, who testified that Mr. Scheibler rarely performed household tasks.
133I find that Mr. Scheibler’s evidence on this issue is embellished and self-contradictory. On the one hand, he would have this court believe that he was occupied full-time with household tasks. On the other hand, he testified that he worked outside of the home, at his landscaping business, the Sanctuary and other pursuits, “seven days a week, 14 hours a day”. Obviously, both cannot be true.
134Mr. Scheibler testified that, in addition to having been a “very successful professional landscaper” in B.C. prior to marriage, he had also been a photographer and a “jack of all trades” skilled in welding, mechanical work, woodworking and carpentry. During the marriage, in addition to his landscaping business, Mr. Scheibler engaged in cutting and selling pulpwood and firewood, developed a golf course, a moto cross course and the Sanctuary. When questioned about his employability generally, Mr. Scheibler testified that he is able to work but prefers to control his own schedule. That evidence appears to me to be accurate.
135In my view, Mr. Scheibler did not sacrifice or compromise a career, employment or earning potential as a result of moving to and residing in Emo, Ontario after marrying Ms. Scheibler. He had terminated his employment as a trucker prior to marriage. After marriage, at 48 years of age, he was free to pursue employment of his choice, either as a paid employee or on a self-employed basis. He chose the latter and engaged in various enterprises as set out above. He was in no way constrained from pursuing whatever type of self-employment he chose and in fact did exactly that throughout the marriage. There is no evidence to suggest that Mr. Scheibler sought employment after separation. He essentially admitted that he had not.
136I accept that Mr. Scheibler contributed to household responsibilities. In fact, Ms. Scheibler acknowledged that he contributed by way of household maintenance, renovations and, to a much lesser extent, domestic chores. However, the role adopted by Mr. Scheibler during the marriage did not in any way inhibit his ability to pursue outside employment. His claim for spousal support on a compensatory basis is dismissed.
137Mr. Scheibler’s claim for spousal support on a non-compensatory basis must be analyzed differently and, in doing so, I accept the submission that this claim has a stronger foundation in law and fact.
138The parties were married for 13 years prior to separating and Ms. Scheibler vacating the matrimonial home on December 31, 2013. Mr. Scheibler has remained in the matrimonial home in the nine years since separation.
139Ms. Scheibler worked outside of the home on a full-time basis prior to and after separation. Her evidence that she “paid all the bills” prior to separation was not contradicted or challenged. In fact, after separation she continued to pay the mortgage on the matrimonial home until it was paid off, in the total amount of $56,125.00. She also continued to pay the real property taxes, hydro, cable, internet and telephone for the matrimonial home. It is an agreed fact that these post-separation payments amounted to an additional $28,246.
140The Agreed Statement of Fact sets out the parties’ incomes in the years 2014-2020. In very round numbers, Ms. Scheibler’s declared income has generally been approximately three times that of Mr. Scheibler. The obvious conclusion is that Mr. Scheibler has been financially dependent on Ms. Scheibler throughout the marriage, both before and after separation.
141I accept Ms. Scheibler’s evidence that she actively encouraged Mr. Scheibler to “get a job” that paid him an income. However, he admittedly never sought remunerative employment and she continued to be responsible for all household expenses without any meaningful contribution from Mr. Scheibler. She acquiesced in Mr. Scheibler’s lifestyle and employment choices and in his financial dependence on her.
142However, Mr. Scheibler was 48 years old on the date of marriage. He was physically employable and possessed a varied and enviable skill set that would have allowed him to easily earn reasonable employment income in and around the Emo area at any point in time, if he chose to do. Mr. Scheibler was 61 years old when the parties separated at the end of 2013. He has worked at various enterprises since that time and freely admitted that he has been employable in the years since separation.
143However, Mr. Scheibler has, prior to and after separation, chosen to devote his time and effort a number of questionable and ultimately unsuccessful business ventures. Most recently, it appears that his full time and attention – seven days a week, 14 hours a day – has been devoted to the Sanctuary, a passion of his that incurs expenses yet generates little to no revenue. I accept the submission of Ms. Scheibler that the income that she earns from working full time at 67 years of age should not be required to subsidize Mr. Scheibler’s lifestyle choices indefinitely.
144The law as to non-compensatory spousal support seeks to redress economic disadvantage and economic hardship experienced by a spouse as a result of marriage breakdown following a period of economic dependence during the marriage relationship. However, the law also requires a dependent spouse to make reasonable efforts to become self-sufficient and economically independent following marriage breakdown.
145As Mr. Scheibler was financially dependent on Ms. Scheibler throughout their marriage, he suffered an economic disadvantage and economic hardship as a result of the marriage breakdown. However, Mr. Scheibler was physically able to contribute to his own support after separation and had the skills and attributes to earn a reasonable income. In my view he simply chose not to do so. I find that he has not made reasonable efforts, or any effort, to support himself since separation.
146Mr. Scheibler’s reported total, net self-employment income between 2014 and 2020 is $27,375.00, or an average of approximately $4,000/year. He reported zero self-employment income in 2019 and 2020. It is obvious that the Sanctuary has not and will not ever provide Mr. Scheibler with any reasonable income.
147Simply put, Mr. Scheibler had an obligation to make reasonable efforts to get a job after separation to contribute to his own support with a view to becoming self-supporting within a reasonable period of time. He has not done so. The law recognizes a spouse’s entitlement to financial assistance from the other spouse for a transitional period following separation, to allow the dependent spouse to transition from a situation of financial dependence to financial independence. This translates into a time limited spousal support order.
148I find that three years following separation is a reasonable period of time for Mr. Scheibler to have found employment and contributed to his own support. The Application was issued in February 2017. As of this date, Ms. Scheibler had formal notice of his claim for spousal support. In the circumstances of this case, it is appropriate to award retroactive spousal support for the three years following separation, which roughly coincides with the three years prior to issuance of the claim.
149I order that Mr. Scheibler is entitled to spousal support from Ms. Scheibler for three years following separation in accordance with the Spousal Support Advisory Guidelines (the “SSAG”) and their respective incomes for 2014, 2015 and 2016. In my view, it is reasonable to conclude that Mr. Scheibler would have been able to obtain employment in the three years following separation that would have earned him an income approximately equal to that of Ms. Scheibler.
150Mr. Scheibler’s Line 150 income in 2014 was $7,876; Ms. Scheibler’s was $59,908. The SSAG mid-range spousal support at these income levels is $986/month. I order that Ms. Scheibler pay to Mr. Scheibler retroactive spousal support in the amount of $1,000/month for the 12 months of 2014, or $12,000. Mr. Scheibler asks me to order spousal support at the high range of the Guidelines. I decline to do so. Mr. Scheibler provides no care for any children. He provides no evidence demonstrating a limited earning capacity. Nor has he any compelling needs that militate an increased level of support.
151Mr. Scheibler’s Line 150 income in 2015 was $8,543; Ms. Scheibler’s was $64,012. The SSAG mid-range spousal support at these income levels is $1,052. I order that Ms. Scheibler pay to Mr. Scheibler retroactive spousal support in the amount of $1,100/month for the 12 months of 2015, or $13,200.
152Mr. Scheibler’s Line 150 income in 2016 was $8,971; Ms. Scheibler’s was $69,652. The SSAG mid-range spousal support at these income levels is $1,150. I order that Ms. Scheibler pay to Mr. Scheibler retroactive spousal support in the amount of $1,150/month for the 12 months of 2016, or $13,800.
153This results in Ms. Scheibler owing Mr. Scheibler retroactive spousal support in the total amount of $39,000.
Repayment of Post-Separation Expenses/Occupation Rent
154Following separation, Ms. Scheibler continued to pay various expenses for Mr. Scheibler and the matrimonial home. Mr. Scheibler has remained in the matrimonial home since separation. The Agreed Statement of Fact stipulates that she paid:
$16,738 for hydro, cable, telephone, cable and internet for December 2013 and the years 2014, 2015 and 2016;
$56,125 for mortgage principal, interest and insurance (paying the mortgage out in full);
$2,115 for Mr. Scheibler’s automobile insurance;
$11,508 for property taxes.
155These payments total $86,486. As a joint owner of the matrimonial home, Mr. Scheibler will share equally in the appreciation in its value. As a joint owner, and the party in exclusive occupation of it, Mr. Scheibler was equally responsible for the payment of the expenses set out above.
156I order that Mr. Scheibler pay to Ms. Scheibler $43,243, representing one-half of the payments she has made for the expenses of the matrimonial home since separation.
157Occupation rent is an equitable remedy, awarded in appropriate circumstances to compensate one joint owner of real property for the exclusive occupation of the property by the other joint owner. The remedy recognizes the inequity of one spouse alone occupying the entire property while the other spouse incurs the expense of residing elsewhere. The remedy also seeks to redress the non-occupying spouse’s inability to realize on his/her share of the equity in the jointly owned real property.
158I decline to order that Mr. Scheibler pay occupation rent to Ms. Scheibler. I have found Mr. Scheibler equally responsible for the mortgage, utility costs and property taxes since separation. I have recognized that he was financially dependent on Ms. Scheibler following separation and awarded him spousal support at the mid-range of the SSAG, rather than the high end of the range as requested. I also recognize that Mr. Scheibler would have been responsible for the inevitable maintenance and repairs of the matrimonial home in the years since separation. The resultant appreciation in the value of the matrimonial home will accrue equally to Ms. Scheibler.
Equalization of Net Family Properties
159As might be expected in a case with a marriage date of 2000 and a valuation date of 2013, the evidence as to the existence, possession and value of the date of marriage and valuation date assets and debts of the parties is problematic.
160Mr. Scheibler’s most recent financial statement is dated November 25, 2001. Ms. Scheibler’s most recent financial statement is dated November 26, 2001. Counsel have also jointly filed a Comparative Net Family Property Statement.
Valuation Date Assets and Debts
Real Property
161The parties were joint owners of the matrimonial home on the valuation date and jointly responsible for the mortgage debt. This asset will be addressed separately later in these reasons.
162Ms. Scheibler was the sole owner of 210 Elliot Road on the valuation date. Her evidence was that it was purchased for $62,000 in 2012 and sold for $62,000 in 2016. Mr. Scheibler disputes the value of 210 Elliot Road at the time of sale and as of the valuation date, suggesting that it was not listed for sale and actively marketed such that the sale price does not reflect fair market value. He suggested that it be valued at $150,000 on the valuation date, consistent with the expert opinion evidence as to the value of the matrimonial home at that time.
163For reasons unknown, neither party filed any conveyancing documents relating to either the purchase or sale of 210 Elliot Road nor was an explanation provided for why they were not put into evidence. These documents would presumably have disclosed the sale price in 2016.
164In the absence of any reliable evidence to the contrary, I accept Ms. Scheibler’s evidence that the fair market value of 210 Elliot Road on the valuation date was $62,000.
Household Contents
165Mr. Scheibler’s evidence was that his share of the household furnishings had a value of $1,000 on the valuation date. This was not challenged and I therefore accept this value. Ms. Scheibler’s evidence was that she took no contents when she left the matrimonial home. Mr. Scheibler submitted, without challenging her evidence, that this was “not realistic”. I accept Ms. Scheibler’s evidence on this point.
Vehicles
166The parties agree that Mr. Scheibler owned a 1998 GMC and a 1996 Chevrolet 1500, on the valuation date, worth $1,000 and $3,500 respectively. The parties also agree that Ms. Scheibler owned a 2004 Chevrolet Trailblazer, with a value of $3,000 on the valuation date.
Tools and Equipment
167Mr. Scheibler testified that his tools and equipment were all purchased second hand at “yard sale prices”. On cross-examination, he valued these chattels at $2,050. However, on cross-examination, when shown a series of photographs of chattels remaining at the matrimonial home, he conceded that numerous valuable tools and equipment were not listed on his financial statement. I draw a negative inference against Mr. Scheibler as a result of this significant omission. I value his tools and equipment at $10,000 on the valuation date.
Jewelry
168Mr. Scheibler concedes that he pawned jewellry for $2,140 after separation. This value shall be attributed to him on the valuation date.
Tractor/6-Wheel ATV
169It is an agreed fact that Mr. Scheibler purchased the tractor for $11,000 in 2002 or 2003 and the 6-Wheel ATV for $10,000 in 2005 or 2006. His estimate of the value of these items on the valuation date is $3,000 and $1,500 respectively. Ms. Scheibler suggests they be valued at $6,000 and $5,000 respectively. No third-party valuations were put into evidence.
170I have to assume that Mr. Scheibler has more experience buying and selling assets of this nature than Ms. Scheibler does. Absent third-party evidence contradicting Mr. Scheibler, I accept his values for these items.
Bank Accounts and Savings
It is not in dispute that Mr. Scheibler had no savings or bank account on the valuation date. It is also not in dispute that Ms. Scheibler had the following on the valuation date:
$4,377 in a chequing account
$2,552 in a savings account
$5,242 in an RRSP
171I discount the value of the RRSP by 20% on account of tax, resulting in a net value of $4,194 for this asset.
Valuation Date Debts
172Ms. Scheibler’s only debt on the valuation date was the mortgage on the matrimonial home. Mr. Scheibler had total debts of $5,470 on the valuation date, including trade accounts and a $3,500 loan from Mr. and Ms. Kyro, which was later forgiven. I deduct the value of the forgiven loan from Mr. Scheibler’s valuation date debts, resulting in debts of $1,970 for him on the valuation date.
Net Value of Property on the Date of Marriage
173Mr. Scheibler owned a 1978 Chevrolet truck worth $1,000 on the date of marriage. He also testified that he had between $2,000 and $3,000 in the bank on the date of marriage. I accept the date of marriage value of the truck worth $1,000 and a date of marriage bank balance of $2,500. Mr. Scheibler was also owed a tax refund in the amount of $8,339.43 on the date of marriage.
174Ms. Scheibler testified that she had, on the valuation date, a CIBC chequing account with a balance of $4,500, a CIBC RRSP with a balance of $4,900 (net of tax value $3,920) and a CIBC GIC with a balance of $7,500. Mr. Scheibler did not dispute these values and I accept them as testified to by Ms. Scheibler.
175Ms. Scheibler also testified that she had personal property worth $4,000 on the date of marriage. I have no reason not to accept this evidence. She also asserted ownership of a $17,500 receivable pertaining to a real estate transaction which was acknowledged by Mr. Scheibler.
176It is not in dispute that Ms. Scheibler owned a 1995 Nissan Pathfinder on the date of marriage. The net value of this vehicle is in dispute. Mr. Scheibler suggests that it was worth only $10,000 and that Ms. Scheibler owed $8,000 on it. Ms. Scheibler contends that Mr. Scheibler purchased this vehicle on her behalf for $27,000. On cross-examination, she conceded that $19,000 of the purchase price was financed and owing on the date of marriage. I accept that the net value of this asset owned by Ms. Scheibler on the valuation date was $8,000.
Excluded Property
177Ms. Scheibler was gifted the 2004 Chevrolet Trailblazer, worth $3,000, that she owned on the valuation date.
178The above findings result in Mr. Scheibler having a net family property of $8,330 and Ms. Scheibler having a net family property of $27,703. The net equalization payment owed by Ms. Scheibler to Mr. Scheibler is therefore $9,867.
179Pursuant to the above findings and calculations in regard to spousal support, post-separation expenses and the equalization of net family properties, Ms. Scheibler owes to Mr. Scheibler the net amount of $5,624.
The Matrimonial Home
180The current fair market value of the jointly owned matrimonial home is unknown. Mr. Scheibler estimates the value to be approximately $217,000. Ms. Scheibler suggests $140,000 to $150,000. The home is free and clear.
181In any event, it appears obvious that Mr. Scheibler will be unable to purchase Ms. Scheibler’s one-half interest in the matrimonial home. He anticipated being able to do so pursuant to the relief he sought in regard to retroactive and ongoing spousal support and the equalization of net family properties. Based on my findings and conclusions, this will not be the case.
182Section 9(1)(d)(ii) of the FLA provides a court with jurisdiction to order that any property be sold or partitioned to address property equalization obligations. I am cognizant of the fact that a request for the sale of the matrimonial home has not been specifically pleaded. However, in my view there is no other way to conclusively resolve all issues presented to the court in this case.
183I order that the matrimonial home be listed for sale within 90 days and sold in accordance with the first reasonable offer received by the parties. The net proceeds of sale shall be divided equally between the parties. Mr. Scheibler shall be paid the sum of $5,624 found owing to him by Ms. Scheibler, as set out above, from Ms. Scheibler’s one-half share of the net proceeds. If the parties cannot agree on any of the terms of listing or sale, I may be spoken to.
Costs
184In my view, success has been divided in this case. I therefore encourage the parties to agree on the issue of costs. If they are unable to do so, they shall file Costs Submissions, not to exceed five pages, exclusive of their respective Costs Outlines and Bills of Costs.
185Mr. Scheibler’s Costs Submissions shall be filed within 30 days of the release of this decision; Ms. Scheibler’s within 14 days thereafter.
______________“Original signed by”
The Honourable Mr. Justice J.S. Fregeau
Released: November 17, 2022
COURT FILE NO.: FS-17-03
DATE: 2022-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michael Scheibler
Applicant
- and –
Betty Scheibler
Respondent
REASONS FOR JUDGEMENT
Fregeau J.
Released: November 17, 2022
/dg