COURT FILE NO.: FS-17-90258
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Akinwale Akinsola
Applicant
– and –
Abimbola Titlayo Akinsola
Respondent
Ikenna Aniekwe, for the Applicant
Monika J. Curyk, for the Respondent
HEARD: November 15, 16, 17, 18, 21, 22, 23, 24, 25
REASONS FOR JUDGMENT
MANDHANE J.
INTRODUCTION
[1] The Applicant/“Father,” Peter Akinola, and the Respondent/”Mother,” Abimbola Akinsola, met in Lagos, Nigeria in 2007. They had their only “Child” on October 20, 2011, married on August 3, 2012, and moved to Canada in September 2015.
[2] The parties separated on July 24, 2017. They started living in separate residences as of March 21, 2018. Since January 17, 2020, with the consent of the Father, and pursuant to the order of Justice Price, the Mother has had sole parenting decision-making authority and primary parenting time with the Child.
[3] The Mother now seeks retroactive and ongoing child and spousal support, and equalization of net family property (NFP).
[4] Underlying these relatively straightforward legal issues, is a more salient question. To what extent should I draw an adverse inference against the Father for his failure to provide adequate and ongoing financial disclosure? And perhaps more importantly, what is the practical effect of any such inference in terms of my findings about the parties’ respective incomes and NFPs?
[5] In this case, I find that the Father’s financial nondisclosure was monumental and transnational in scope, that it was entirely self-serving, and that it infected all aspects of the trial. As will be discussed below, I am prepared to draw a strong negative inference against the Father in terms of my assessment of the evidence about his income and property.
Overview
Relationship and marriage in Nigeria
[6] When the parties met in 2007, the Father was working as a mechanic, while the Mother was working as an usher and a store clerk. The Mother had a son from a previous relationship who was about seven years old at the time.
[7] After they started dating, the Father encouraged the Mother to pursue an education. The Mother wrote the Nigerian common university entrance exam in 2007, enrolled in a university-level agriculture program in Bakura city in 2008, and graduated in 2013. While the Mother was studying the Father remained in Lagos. However, he paid her tuition and rented an apartment for her and her son in Bakura. The Father and Mother would visit each other often.
[8] In 2008, the Father bought a plot of vacant land in a Lagos subdivision and started to build a house (“the House”). In 2010, the Father bought two more plots of vacant land (“the Land’), one in his name and one in the Mother’s name. Nothing was built on the Land.
[9] The parties were married in Nigeria on August 3, 2012.
[10] After the Mother finished her degree, sometime in 2013, she moved into the Father's House in Lagos. The Mother stayed home with the children, while Father assumed the role of breadwinner and paid all of the household expenses. By this time, he owned an auto mechanic shop, Peking Autoland Nigeria, that employed about 15 people.
[11] As of September 2015, the Father had saved $20,000 USD in cash, had a pension worth $10,000 USD, and owned the House and one plot of Land.
Immigration to Canada
[12] With the Father’s savings of approximately $30,000 USD, the parties immigrated to Canada in September 2015. The family eventually leased a three-story townhouse (the “matrimonial home”).
[13] The Mother quickly realized that her foreign credentials would not be recognized in Canada. Therefore, she applied for OSAP and enrolled in the personal support worker (“PSW”) program at Algonquin College in October 2015. She graduated in June 2016, completed a three-month unpaid internship, and got her first job as a PSW in late 2015/early 2016. Throughout 2016, the Mother was assigned work through a PSW staffing agency.
[14] The Father registered his corporation, Peking Autoland Canada, in 2016 and got a job as an independent contractor with a tire service company. He had flexible hours and would sometimes drop off and pick up the Child from school.
[15] Throughout their marriage, including while in Canada, the parties maintained separate bank accounts. The Mother would buy some items for the children as well as some African groceries, while the Father was responsible for all the other expenses.
Separation
[16] The parties separated on July 24, 2017, after the Father served the Mother with a letter from his counsel seeking a divorce.
[17] The Father filed his Application on September 8, 2017, and the Mother filed her Answer on September 29, 2017.
[18] From the date of separation onwards, the parties and the children remained in the matrimonial home, living separate and apart, until the Father was arrested and moved out on March 21, 2018.
[19] The Mother and Child remained in the townhouse until August 2018, after which the Father stopped paying the rent and the landlord took legal action to evict the Mother. The Mother moved into her own apartment in October 2018.
[20] Between May 2018 and January 2020, the parties had equal parenting time with the Child. From January 17, 2020 onwards, on consent of both parties, the court ordered that the Mother have sole custody and primary residency of the Child.
[21] The Father returned to Nigeria and lived there between February 2020 and August 2022.
[22] On March 12, 2020, the Father was ordered to pay child support to the Mother in the amount of $430.00 per month (or $5,160 per year), based on an income of $46,606. The Father paid $2,611.14 in 2020, $2,811.14 in 2021, and $2,370 in 2022.
[23] The Mother enrolled in the Information Solutions Technology program at Humber College in 2020 and graduated in 2022. She expects to start working in her field within the next month. She lives with the Child in a rental apartment.
[24] The Father is now living in Saskatoon and is employed with a tire company. He does not see the Child.
[25] The Father has never paid spousal support.
ISSUES
[26] The issues that I must decide are as follows:
• Should I draw an adverse inference against either party for failure to make adequate financial disclosure?
• How much should the Father pay in retroactive and ongoing child support?
• How much should the Father pay in retroactive and ongoing spousal support?
• How much does the Father owe the Mother in equalization?
SHORT CONCLUSION
[27] I am prepared to draw a strong adverse inference against the Father for his financial nondisclosure.
[28] The Father owes substantial child support arrears based on an imputed taxable income of $130,000 in 2018; $110,000 in 2020; and $130,000 in 2019, 2021 and 2022.
[29] The Father shall pay ongoing child support based on a taxable income of $130,000, commencing January 1, 2023.
[30] The Mother is entitled to substantial spousal support arrears at the high end of the range from the date of separation to December 31, 2022, based on his imputed income.
[31] The Father shall pay indefinite spousal support at the high range of the range on an ongoing, monthly basis, commencing January 1, 2023, based on an imputed taxable income of $130,000.
[32] The Father owes the Mother a substantial equalization payment because the Father held all of the family assets on the date of separation.
ANALYSIS
Should I draw an adverse inference against either party for failure to make adequate financial disclosure?
[33] Rule 13 of the Family Law Rules, O.Reg. 114/99 and sections 21 through 25 of the Federal Child Support Guidelines, SOR/97-175 create positive obligations on litigants to provide adequate and ongoing financial disclosure about their property and income.
[34] Regarding property, Rule 13 required both parties to file regularly updated sworn financial statements. In Shinder v. Shinder, 2017 ONSC 4177, 2017 O.J. No. 3703 (ONSC) at paras. 26-32, Wilson J. explained that compliance with Rule 13 requires completeness, clarity and simplicity, and that Financial Statements cannot be selective or misleading.
[35] Regarding income, section 21 of the Guidelines required each party to provide copies of their three most recent personal income tax returns, and notices of assessment or reassessment: s. 21(a)(b). For periods when the parties were employed, they were to provide a recent statement of earnings: s. 21(1)(c).
[36] For periods when the Father was self-employed, he was required to provide financial statements, and a breakdown of salaries and wages paid to non-arm’s length parties: s. 21(1)(d). Indeed, self-employed persons “have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses from which the recipient can draw conclusions about income: Lachance v. Campbell, [2016] O.J. No. 5398 at paras. 38-39.
[37] Pursuant to the Guidelines, the Father was also required to provide financial statements for his businesses, Pekin Autoland Canada and Pekin Autoland Nigeria, as well as a statement showing a breakdown of all salaries and wages that he paid to himself and non-arm’s length parties: s. 21(1)(2). In practice, some degree of expert assistance is usually required to value income where a party is self-employed: Sharma v. Sunak, 2011 ONSC 7670, at para. 21.
[38] Financial nondisclosure has knock-on effects that are felt throughout the family justice system. That is why it is referred to as the cancer of family law: Leskun v. Leskun, 2006 SCC 25 at para. 34. In Leitch v. Novac, 2020 ONCA 257 at para. 44, the Court of Appeal for Ontario explained the aptness of the cancer analogy:
Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.
[39] In short, financial nondisclosure thwarts the just determination of cases. It distorts the fact-finding process and results in complicated and arduous trials that are disproportionate to the complexity or importance of the issues.
[40] Financial nondisclosure also thwarts early settlement. Nondisclosure is generally self-serving, and the opposing party is rightfully skeptical about negotiating away legal entitlements for themselves or their children while being left in the dark about the true value of other party’s property and income. This is especially the case where the party left in the dark is vulnerable or of limited means: Rick v. Brandsema, 2009 SCC 10, 303 D.L.R. (4th) 193 at para. 47.
[41] It is not an exaggeration to find that financial nondisclosure thwarts access to justice. When a litigant refuses to play by the rules, judges must step into the fray. Everyday, we hear complex and lengthy motions rooted in financial nondisclosure. These includes motions for disclosure, for enforcement of disclosure order, for a finding of contempt, or to change a final order based on imputed incomes at trial. All the while, people who have played by the rules wait in an ever-lengthening queue.
[42] Here, the Father provided minimal and entirely self-serving financial disclosure. He did not disclose his personal tax returns, his business tax returns, his business income, or documentation to support the amounts set out in his seven sworn Financial Statements. Inexplicably, despite his monumental financial nondisclosure, he was able to retain two different Nigerian experts to write reports opining on the value of the House.
[43] Before me, the Father explained that he may have misunderstood or inadvertently overlooked his disclosure obligations. I reject this explanation. This matter has been before the courts since September 2017 and the requirement to make adequate disclosure was repeatedly communicated to the Father at court appearances and in communications from counsel. While the Mother never brought a motion for disclosure, I find that she was of limited means and that it was not feasible for her to do so.
[44] Where a party fails to meet their financial disclosure obligations, I may draw an adverse inference against them and impute an appropriate amount of income: Gudelines, s. 23; see also Meade v. Meade, 2002 CanLII 2806 (ON SC), [2002] O.J. No. 3155 at para. 81. My authority to impute income is discretionary and fact-specific: Levin v. Levin, 2020 ONCA 604, at para. 12.
[45] Here, I agree with the Mother that fairness requires that I draw a strong negative inference against the Father and impute income to him.
[46] First, I agree with the Mother that the Father’s personal Notices of Assessment are completely unreliable in the absence of proper disclosure about his Canadian and Nigerian businesses.
[47] For example, in cross-examination, the Father estimated that Peking Autoland Canada had at least $105,000 in revenue in the year of separation (2017). While the Father admitted that he only paid taxes on a declared income of $40,000, he could not adequately explain what happened to the remaining $65,000 in business income. While he speculated that some of the money may have been used for business expenses, such as tools and gas, he did not produce any receipts or corroborating information. In cross-examination, he admitted most of the money in his business account was used to support his family. Indeed, his Financial Statement sworn November 9, 2017 says that his expenses totaled $101,792.16.
[48] Second, the Father’s evidence about his income in the relevant years does not make sense considering his pre- and post-separation lifestyle. Prior to separation, both parties agree that they were living in a three-story rental townhome, and that the Father was covering almost all the household expenses. The Child was enrolled in Kumon and both party’s owned used vehicles. The Mother described the Father as a “good provider.”
[49] After separation, the Father maintained his own residence and had sufficient funds to travel back and forth to Nigeria, start a business, and begin paying child support.
[50] In general, the Father’s Financial Statements establish that the Father was spending far more than his reported income to CRA in the years post-separation. For example, in his Financial Statement sworn April 16, 2018, the Father states that his annual expenses totaled $74,795.88. In his Financial Statement sworn January 7, 2020, he swears that his expenses totaled $53,202. While the Father did not provide any business or personal banking records or credit card statements with which to verify these expenses, the Mother says that there is no way that the Father could cover his expenses based on his claimed income.
[51] In cross-examination, the Father tried to resile from the information outlined in his Financial Statements, claiming that all the numbers were estimates or guesses, that some of the expenses were estimated too high, that he did not review the statements before signing them, and that he did not appreciate the nature of swearing and signing such a document. I reject this evidence as nonsensical and entirely self-serving.
[52] The Father also insisted throughout his cross examination that, he was able to maintain a high standard of living on his meagre income and without incurring any debts because of the “generosity” of family and community members. He described the Nigerian diaspora community and family structures as incredibly close knit and supportive of one another. Yet, he did not call a single family or community member as a witness.
[53] I agree with the Mother that the inexplicable conclusion based on the totality of the evidence is that the Father was earning much more than he claimed either to CRA or before this court. There is simply no way that the Father afford this lifestyle based on his claimed income. It is also highly suspect that the Father only produced disclosure that suited his narrative (i.e., the expert reports), and resiled from his own sworn documents when they no longer supported his position.
[54] Where a party refuses to provide even basic disclosure, the only rational inference available to the court is that such disclosure, if it had been properly produced, would have been highly detrimental to their position at trial had it been produced. On that basis, I am prepared to draw a strong negative inference against the Father.
[55] On the other hand, I refuse to draw any negative inferences against the Mother for financial nondisclosure. I find that the Mother met her obligations under the Rules and the Guidelines. She provided fulsome disclosure about her assets in Canada and Nigeria, and her income as a PSW. She provided supporting disclosure to the best of her ability given the challenges of obtaining records from Nigeria. The only account for which the Mother was not able to provide complete disclosure was an account held in Nigeria that she could not access from Canada and which I accept had a minimal balance of approximately $4.00.
How much should the Father pay in retroactive and ongoing child support?
[56] The Father admits that he is required to pay child support consistent with the Guidelines.
[57] Therefore, the only factual issues that I must decide are the parties’ respective incomes for support purposes, including whether income should be imputed to either of them.
The Father’s income
[58] While working in Ontario in 2018, the Father was an independent contractor and testified that he filed both personal and corporate tax returns for Pekin Autoland Canada.
[59] The Father says that his income is accurately reflected in his Notices of Assessment. He says that he earned $17,425 in 2018 because he lost his job after his arrest in March 2018 and was unemployed for the greater part of the year.
[60] In 2019, the Father says that he earned $46,406 while working for a tire company.
[61] For 2020 and 2021, while the Father was in Nigeria, he operated a business, Pekin Autoland Nigeria. The Father’s Notices of Assessment list his total income as $17,542 in 2020, and $12,005 in 2021. He explained that his business struggled during the pandemic, and that he was only able to survive and pay child support because the cost of living in Nigeria is lower than Canada and because he received cash gifts from family and community members.
[62] The Father returned to Canada in 2022, choosing to resettle in Saskatoon. He explained that he has negative associations with Ontario after his arrest, that Toronto was too expensive, and that he was confident he could eventually become a licensed mechanic in Saskatchewan.
[63] The Father is currently employed with JSN Motors Inc., and his pay stubs show a bi-weekly income of $1,717.12 after deductions, which amounts to $31,720 annually.
[64] The Mother says that the Father’s taxable income should be imputed at $130,000 for each year that child support is payable. She says that the Father has many years of practical experience as a mechanic in Nigeria and Ontario and that, even though he is not a licensed mechanic in Canada, he has a skill set that is in high demand. She says that I should be skeptical about the Father’s monumental drop in income. She says that, in light of his financial nondisclosure and his lack of credibility as a witness, I should reject the Father’s evidence about his income.
[65] Subsection 19(1) of the Guidelines allow me to impute income in “appropriate circumstances,” including where a spouse is intentionally unemployed or under-employed, where it appears that income has been diverted, or where the spouse has failed to provide the required financial disclosure: s. 19(1)(a)(d)(f). As discussed above, I am prepared to draw a strong adverse inference against the Father for the purposes of imputing income.
[66] Even still, I cannot select an arbitrary amount as imputed income: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.) at para. 44. Instead, “there must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence” and be “reasonable in the circumstances:” Drygala, at paras. 35, 44. The evidence need not be perfect, but it must be sufficient to allow me to judicially exercise my discretion: Michaud v. Kasali, 2016 ONSC 443, at para 41.
[67] The Mother says that I should find that the Father’s taxable income was at least $130,000 in 2018-2022. The Mother says that $105,000 (the business income the Father testified he earned in 2017), would be too conservative an estimate and that I should be weary about “taking the Father’s bait” in the absence of any corroborating financial disclosure. She notes that any amounts that the Father took out of his business to support his personal expenditures would have to be “grossed up” to determine his total taxable income.
[68] The Mother has convinced me that the Father’s had a taxable income of $130,000 in 2018 and 2019. I reject the Father’s evidence that he was terminated in 2018. There was no admissible evidence about his termination, no bank statements to show a drop in cash flow or expenses. Moreover, he was an independent contractor and not an employee, which makes his claim even less believable. While I accept that the Father worked as an employee for a tire company in 2019, I find that he also earned income as an independent contractor that he failed to disclose to CRA or to this court.
[69] For 2020, I find that the Father’s taxable income is appropriately imputed to be $110,000. The Father admitted that he raised at least $30,000 USD to launch the Pekin Autoland Nigeria business but could not explain why his reported income that year was only $17,542. His Financial Statement sworn October 19, 2020 puts his expenses at $56,678.56. I have no trouble concluding that the Father was taking money out of his business to fund his lifestyle. That said, as a matter of common sense, I accept that the Father’s business income would have been affected by the COVID-19 pandemic and have taken this into account by imputing his income for 2020 to be lower than it was in 2019.
[70] For 2021, I find that the Father would again have had a taxable income of $130,000 and that he underreported his income to CRA and to this court. While there was scant evidence about the Father’s true income while in Nigeria in 2021, I find that the totality of the evidence about his income is a sufficient evidentiary basis to ground my finding that he was taking money out of his business to supplement the income he declared to CRA: Graham v. Bruto, 2008 ONCA 260, at para. 4.
[71] The Father moved back to Canada in 2022 and is now working as an employee in Saskatoon. The Mother accepts that the Father is a T4 employee, but she says that I should impute income to him based on intentional underemployment: Drygala, at para. 28.
[72] I find that the Father’s taxable income in 2022 is again reasonably imputed to be $130,000. I have no trouble concluding that the Father is intentionally underemployed given his years of experience as a mechanic and past earning potential. The Father chose to move to Saskatoon even though he knew that he could earn more money in Ontario. The Father could not explain why he has not worked as an independent contractor in Saskatoon while pursuing his certification as a mechanic. The inescapable conclusion is that he chose to be underemployed awaiting the outcome of this trial.
[73] The Father shall pay ongoing child support based on an imputed taxable income of $130,000.
The Mother’s income
[74] The Mother’s income is relevant to both child and spousal support. Given that the parties had equal parenting time between May 2018 and January 2020, the Mother’s income for 2018, 2019, and 2020 is relevant to determining the amount of “set off” child support payable by the Father.
[75] The Mother’s income between 2018 and 2022 is relevant to the issue of spousal support only but, for ease of analysis, I address her income in those years in this section as well.
[76] The Mother says that her income is accurately reflected in her Notices of Assessment and supporting financial disclosure. The Mother was a T4 employee and produced documentation to support these amounts. I accept the Mother’s evidence that her actual taxable income was $35,770 in 2018, $47,244 in 2019, $34,862 in 2020, and $0 in 2021 and 2022.
[77] Here, the Father asks me to impute $47,244 in taxable income to the Mother for 2018, 2020, 2021, and 2022 based on intentional underemployment tor unemployment: Guidelines, s. 19(1)(a).
[78] Notably, subsection 19(1)(a) states that I should not impute income to a spouse where the underemployment or unemployment is “required by the needs of a child of the marriage,” or “by the reasonable education…needs of the spouse.” Both exceptions apply in this case, and I refuse to impute income to the Mother.
[79] I accept that the Mother’s income for support purposes in 2018 was $35,770. In 2018, the Mother was working part-time as a PSW while having primary caregiving responsibilities for the Child. I reject the Father’s assertion that she could have worked more hours. The Mother was only able to work while the Child was at school, which limited her earning potential. I accept her evidence that any intentional under-employment was on account of her caregiving responsibilities.
[80] The parties agree that the Mother’s income in 2019 was $47,244. The Mother explained that her income increased between 2018 and 2019 because she was able to work more shifts during the period when the Father had equal parenting time with the Child.
[81] For 2020, I find that the Mother’s income for support purposes was $34,862. The Mother was unintentionally unemployed as of April due to COVID-19 and collected CERB. Her financial disclosure supports her version of events and there is no basis upon which to find that she was intentionally unemployed.
[82] I accept that the Mother’s income in 2021 and 2022 was zero. The Mother says that she did not earn any income in 2021 or 2022 because she was enrolled full-time in the Information Technology Solutions program at Humber College. I refuse to impute income because I find that her decision to upgrade her education was reasonable insofar as a career in information technology would allow her to work from home, increase a higher income, and better balance her responsibilities as a sole caregiver and main provider for the Child.
How much does the Father own in retroactive and ongoing child support?
[83] Effective January 1, 2023, the Father shall pay child support for one child consistent with the Guidelines applicable in Ontario and based on a taxable income of $130,000.
[84] The parties agree that there is no retroactive child support owing while the parties were separated and both living in the townhouse between July 1, 2017 and March 31, 2018.
[85] They also agree that the Father is only required to pay “set-off” child support for one Child between May 1, 2018 and January 1, 2020 when the parents had equal parenting time. He shall do so based on his imputed taxable income of $130,000 in 2018 and 2019, and $110,000 in 2020, and the Mother’s income of $35,770 in 2018, $47,244 in 2019, and $34,862 in 2020.
[86] From February 2020 to December 31, 2022, the Father was required to pay child support for one child consistent with the Guidelines applicable in Ontario based on a taxable income of $130,000.
[87] Since April 2020, the Father has made partial child support payments totaling $7,792.28, which shall be credited against any retroactive child support payable.
[88] Commencing January 1, 2023, the Father is required to pay child support for one child consistent with the Guidelines applicable in Ontario based on a taxable income of $130,000.
How much should the Father pay in spousal support?
[89] The Mother makes a claim for indefinite compensatory and needs-based spousal support. The Father denies any obligation to pay spousal support.
[90] My findings above regarding income for child support purposes apply equally to my analysis findings regarding spousal support.
[91] Therefore, to decide this issue, I must consider whether the Mother is entitled to spousal support, the parties’ incomes for support purposes, and the appropriate amount and duration.
Entitlement
[92] In Bracklow v. Bracklow, (1999) 1999 CanLII 715 (SCC), 44 R.F.L. (4th) 1 (S.C.C.), paras 35 and 26, McLachlin J. said:
[Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813] sets out the method to be followed in determining a support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of the many unique marital relationships.
Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others.
[93] Here, the parties were married for about five years and had one child together. I find that the Mother is entitled to spousal support on both a compensatory and needs basis.
[94] The Mother is entitled to compensatory support based on the traditional gender roles in the marriage: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s.15.2(4), (6). Foremost, I accept the Mother’s testimony that she was the primary caregiver for the Child (and her older son) while the parties were married and living in Nigeria. She explained that she always wanted to work, but that the Father and his family wanted her to stay home with Child. She said that the Father supported her education in Nigeria because, in her words, his family would not accept him marrying someone who was not “literate.”
[95] The Mother did not work outside the home until coming to Canada, some three years into the marriage. The Mother has faced many barriers in finding decent employment due to her intersectional experience as a racialized, immigrant woman and the nature of her relationship with the Father.
[96] When she arrived in Canada, the Mother quickly learned that her Nigerian university degree would not be recognized. Even after retraining as a PSW, the Mother maintained primary care for the Child. She was required to transport the Child to and from school, supervise her older son, and undertake all household tasks such as cooking, cleaning, and so on. While the Father helped pick up the Child from school on occasion, this was sporadic and unpredictable. The Mother was ultimately responsible for the Child’s school attendance, and she adjusted her working hours accordingly. She eventually found working as a PSW to be inflexible, grueling, low-paying, and (at least during the pandemic) risky.
[97] The Mother would have earned more money and further advanced her career but for her caregiving and household responsibilities during the marriage. This finding is supported by the fact that there was a significant income disparity between the parties both during and after the marriage, except for the year in which they had shared parenting.
[98] The Mother asks me to order spousal support while she remained in the matrimonial home on the basis of need. Typically, post-separation, while the parties resided together in the matrimonial home and the Father covered all of the carrying costs, no spousal support would be payable. Here, the Mother says that she is entitled to support because the Father did not, in fact, support the Mother financially even while they were living together.
[99] I accept that the Mother suffered extreme economic hardship after separation. While living in the townhouse with the Father, she was not allowed to use the fridge, stove, washing machine, or to use any part of the house outside her bedroom and its adjoining bathroom. She was not allowed to interact with the Child in the common areas of the home. I accept her evidence that the Father repeatedly told her that she was not entitled to make use of the matrimonial home because only he was on the lease, because he was paying the rent and carrying costs, and because he paid for all the furnishings. As a result, between June 2017 and March 2018, the Mother was required to purchase her own prepared meals, laundry detergent, toiletries, and so on.
[100] I find that the Father’s behaviour was designed to pressure the Mother to leave the matrimonial home and abandon the children. She refused to do so until the parenting issues were resolved. However, as a direct result of the Father’s behaviour while they were living in the matrimonial home, the Mother was evicted from the matrimonial home in August 2018 and had not saved enough money to rent her own place. Between August and October 2018, she was effectively homeless, living in her car and renting a room through Air BnB when she had overnight parenting time with the Child.
[101] She was also the sole caregiver for the Child from 2020 onwards. The Father has never paid adequate support, and she has been supporting herself through student financial assistance. She incurred significant student debt to retrain once more in a more sustainable career in information technology.
[102] The Mother has a strong claim for spousal support.
Quantum and Duration
[103] I must not depart lightly from the support ranges outlined in the Spousal Support Advisory Guidelines lightly: Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105-106.
[104] Here, I order that spousal support be paid at the high-end of the range. According to the Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), at pp. 33, 45, in cases where one party has primary residency of the children and the parties are low- to mid-income earners, spousal support should generally be awarded in the mid-to-high end of the SSAG range. This is because of the significant compensatory claims associated with children, coupled with the needs in the home of the primary care parent. The authors of the User’s Guide caution that: “A simple default to the mid-point likely leaves many of these recipients under-compensated:” p. 44.
[105] Given that the Mother is expected to have sole care of the Child going forward and at least for another seven years (until the Child turns 18), I find that this is an appropriate case in which to award indefinite spousal support. Again, the authors of the User’s Guide caution that ordering indefinite support is generally more appropriate in situations “where the recipient continues with a disproportionate share of childcare going forward:” p. 44. That is clearly the situation here where the Father chose to relocate to Saskatoon, knowing that the Mother and Child are in Ontario.
How much does the Father owe the Mother in equalization?
[106] To answer this question, I must consider each party’s respective NFP on the date of marriage (August 3, 2012) and date of separation (July 24, 2017).
[107] As a preliminary matter, I find that the parties do not need to equalize the Land that each owned in their own name in Nigeria. The plots were of equal value and each party shall be entitled to their own parcel. To the extent that the Father must execute various legal documents in Nigeria to allow the Mother to exercise her legal ownership, he shall do so.
Father’s NFP
[108] The House in Nigeria is not a matrimonial home, and it was purchased solely in the Father’s name sometime prior to the parties’ marriage.
[109] Regarding valuation of the House, I accept the testimony of Kayode Aluko, a licensed property valuator in Nigeria, and the exchange rates agreed upon by the parties on the relevant dates. The expert was unshaken under cross-examination and did not have any pre-existing relationship with the Father. Moreover, the Mother did not adduce any evidence to undermine the values outlined in the report. I find that the Father’s House decreased in value from the date of marriage to the date of separation, from $37,820 to $28,699 (or -$9,121). His NFP will decease in light of the depreciation of this asset.
[110] The Father did not own a car on the date of marriage but owned a 2010 Dodge Caravan on the date of separation. In his testimony, the Father says that his vehicle was worthless, while the Mother estimates that it was worth $6,000, as indicated in the Father’s Financial Statement dated November 9, 2017. I find the Father’s vehicle was worth $6000 on the date of separation.
[111] The Mother says that I should find that the Father held cash in the amount of $32,464 on the valuation date. She gleans this information from a review of his seven Financial Statements. However, because the Father did not provide adequate financial disclosure of his bank account holdings, it is impossible to estimate exactly how much money he had on the date of separation.
[112] Again, I look to the Father’s own evidence. I find that the Father had at least $35,000 in cash savings on the date of separation. The Father admitted that on November 29, 2017, just a few months after commencing this Application, he signed an indemnity that allowed him to make daily withdrawals out of his Nigeria bank for an amount equivalent to $35,800. The Father said that he did this to facilitate his own mother buying a property in Nigeria. He failed to provide any corroborating evidence, and did not call the mother as a witness. I reject this evidence. I find that the Father had at least $35,000 in cash on the date of separation.
[113] The Father’s sworn NFP indicates that Pekin Autoland Canada and Pekin Autoland Nigeria both were both worth $14,000 on the date of separation. Again, without any supporting documentation, I am prepared to find that they were likely worth more. I find that the Father’s businesses were worth $20,000 on the valuation date.
[114] The Father did not have any debts on the date of separation.
Mother’s NFP
[115] The Mother does not own any land beyond the vacant Land in Nigeria discussed above.
[116] Her 2007 Toyota Camry was held in the Father’s name and sold in August 2021. The value on the date of separation is unknown, but I am prepared to find that it was worth $2500.
[117] Based on her financial disclosure, I find that the Mother had $6,173 in cash on the date of separation. She also had OSAP debt of $14,387 in relation to her PSW studies.
[118] Based on the foregoing, I find that the Mother’s debts exceeded her liabilities on the date of separation.
FINAL ORDER AND COSTS
[119] To assist me to make a final order, on or before December 17, 2022, based on my findings herein, both parties shall email to my assistant, Corry Allard (corry.allard@ontario.ca) and upload to the Caselines, the following:
• A draft final order;
• Their supporting DivorceMate calculations for the years 2018-2022;
• Their supporting NFP statement; and
• Their Bill of Costs, relevant offers to settle, and costs submissions (max 5 pages, double-spaced, 12-point font).
[120] I remain seized of this matter pending issuance of my final order.
MANDHANE J.
Released: December 8, 2022
COURT FILE NO.: FS-17-90258
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Akinwale Akinsola
Applicant
-and-
Abimbola Titlayo Akinsola
Respondent
REASONS FOR JUDGMENT
MANDHANE J.
Released: December 8, 2022