COURT FILE NO.: FS-16-239-00

DATE: 2022-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

K.R.

Nicole Rea, for the Applicant

Applicant

• and -

M.R.

Self-Represented

Respondent

HEARD: May 25-28, 2021 and June 11, 2021, via Zoom at Thunder Bay, Ontario

Madam Justice Tracey Nieckarz

Reasons for Judgment

Overview:

[1] This was a trial arising from an application under the Divorce Act, the Family Law Act and various other legislation. It is a matter that has been high conflict, with multiple court appearances and temporary orders required, some of which were consensual. The animus between the parties was evident from the perspective of each of them offered on all issues at trial.

[2] Despite the high conflict nature of the proceeding, to their credit the parties have resolved the issues of parenting and ongoing child support as follows:

a. Pursuant to the final order of Fitzpatrick J., dated September 3, 2019 the Applicant (“Wife”) has sole decision-making authority and primary care of the children. The Respondent (“Husband”) has limited supervised parenting time with the youngest child, and no specified time with the other three children.

b. Pursuant to the final order of Fitzpatrick J., dated October 21, 2019, commencing November 1, 2019 the Husband pays to the Wife the sum of $2,005 per month on account of child support, based on his 2018 Line 150 income of $85,283. There is no provision for an annual review of support or disclosure.

[3] At trial, the Wife sought the following additional orders:

a. A divorce.

b. An adjustment of ongoing child support to $1,937 based on the Respondent’s 2020 income of $82,170, with an order for ongoing disclosure and an annual adjustment of support and s. 7 expenses.

c. Fixing arrears of child support in the amount of $8,739.

d. Designating the children as equal and irrevocable beneficiaries of any life insurance available through employment for so long as the Husband is obligated to pay child support.

e. Requiring the Husband to maintain an additional life insurance policy through PC Insurance in the amount of $200,000 for the benefit of the children.

f. Requiring the Husband to pay $1,800 on account of his share of life insurance policies purchased by the Wife for the children and requiring the Husband to transfer ownership of the children’s policies into her name.

g. Spousal support in the amount of $500 monthly, based on an imputed income to the Husband of $132,752, being the Husband’s pre-separation 2016 income, payable either until December 31, 2031 or alternatively until the youngest child turns 18 years of age. While the Wife requested “arrears” (presumably retroactive) of spousal support, a commencement date was not suggested.

h. Requiring the Husband to maintain the children and the Wife as dependents for the purpose of his extended health care benefits available through employment or his disability benefits for so long as they are eligible for such coverage.

i. Payment of ongoing s. 7 expenses, fixed in the amount of $575 per month, which amount shall be reduced by $100 per month for each child for whom support is no longer payable, save and except that the reduction shall be $250 per month for D.R.

j. Payment by the Respondent of 90% of any of any s. 7 expenses exceeding the fixed amount, including but not limited to post-secondary education expenses.

k. Retroactive s. 7 expenses fixed at $35,731.56.

l. Requiring the transfer of the matrimonial home from the Husband to the Wife, in addition to an equalization payment owing to her, which she has calculated at $26,712.93.

m. Costs, with further submissions to be delivered following this judgment.

[4] The Husband agreed with a divorce issuing. His position with respect to the issues raised by the Wife, and orders sought by him, may be summarized as:

a. There shall be no spousal support payable. Initially the Husband argued that given the ages of the children, the Wife should be able to work and contribute to her own support. During the trial he abandoned this position and acknowledges that the Wife is unable to work due to her obligations in caring for the children, particularly D.R., and the Wife’s injuries sustained in a post-separation motor vehicle accident. The Husband’s primary argument is that he is unable to afford spousal support given his significant child support and s. 7 expense obligations, and the Wife does not have need. He does not agree that income should be imputed to him given his mental health status and inability to work.

b. He should be credited against any other obligation he has with the spousal support payments he has been making pursuant to a temporary order.

c. He agrees that child support should be adjusted annually.

d. He has paid the agreed upon amounts of child support since separation. There are no arrears of support owing by him, nor are retroactive payments warranted. If anything, he has overpaid support. If I find that he has in fact underpaid support, I should exercise my discretion not to order retroactive support given the payments the Husband has made for other items, including mortgage on the home post-separation.

e. The Wife shall pay him $8,739 erroneously filed by her and collected by the Family Responsibility Office (FRO) as arrears.

f. He acknowledges that based on income calculations, his proportionate share of s. 7 expenses is 90% and the Wife’s is 10%. He seeks to pay 50% of proper s. 7 expenses on an ongoing basis or alternatively, a lump sum of $350 per month.

g. With respect to retroactive s. 7 expenses, he denies he owes the payment sought by the Wife for reasons, as set out in greater detail below. He argues that the appropriate amount owing by him is $4,049.

h. The children shall be required to apply for reasonable scholarships or bursaries and make reasonable contributions to their own education costs. The RESPs accumulated during the marriage will be divided equally between the children and applied prior to seeking any contribution from the parents.

i. He seeks occupation rent given he was required to leave the home and pay rent in the amount of $1,037 per month. His actual claim is unclear. At trial it appeared he was seeking occupation rent at $1,500 per month for the Wife’s occupancy since separation. The Husband’s written closing submissions sought $1,045 from the date of separation to the date of sale.

j. He does not agree with the value attributed by the Wife to the matrimonial home. At a minimum is should be $425,000, based on a 2019 appraisal. He does not agree with the Wife retaining the home and wishes to have it sold.

k. He shall be paid $45,500 by the Wife on account of an equalization of net family property. Any joint accounts still open shall be closed.

l. He will designate the children as the beneficiaries of his existing life insurance totalling approximately $250,000. He will keep ownership of all policies currently owned by him.

m. He will designate the children, but not the Wife as dependents for the purpose of his extended health care benefits.

n. Neither party shall pay costs to the other.

Background:

[5] The parties were married on August 21, 1999. They separated on October 3, 2016. While considerable trial time was devoted to the marital issues between the parties that lead to their separation, suffice it to say the marriage was not a happy one.

[6] At the time of separation, the Husband was employed as a Pharmacist. Within weeks of the separation the Husband was unable to work and was in receipt of disability benefits. At the time of trial, he was 51 years old and off work indefinitely due to severe depression. His emotional struggles with the separation, estrangement from the children, and grief with respect to the life-threatening illness suffered by D.R. were evident during the trial. He is in receipt of long-term disability benefits.

[7] At the time of separation, the Wife was not employed outside of the home. At the time of trial, she was 47 years old and remained a stay-at-home parent.

[8] When the parties were first married the Wife worked as a registered nurse. When they moved to Thunder Bay early in the marriage, the Wife worked part-time and began a Masters’ degree in advanced nursing practice. At some point prior to F.R. being born, she worked as a full-time nursing instructor at Confederation College and on a casual basis at the hospital. Ultimately the Wife stopped working to remain at home to care for the children. The plan was to return to work once the youngest child was in school full-time, but by the time that happened D.R. was diagnosed with Cystic Fibrosis and the demands of the children did not allow for her to work.

[9] Following separation, the Wife was in a motor vehicle accident that has compromised her physical health. The Wife suffers from injuries to her back for which she takes medication, was in receipt of non-earner benefits from the insurer of $370 bi-weekly for for two years post-accident, and for which she is entitled to up to $65,000 for medical and attendant care benefits.

[10] There are four children of the marriage: F.R. (18 years old), E.R. (17 years old), D.R.(14 years old) and C.R. (11 years old).

[11] All the children were involved in extra-curricular activities prior to the separation and continued to be since.

[12] All the children have medical issues that result in significant expenses, not all of which are covered by health care benefits or government programs. D.R. has the most severe conditions, suffering from cystic fibrosis and pancreatitis.

[13] The other three children suffer from the following:

a. F.R.

Ongoing symptoms and neurological concerns from repeated concussions requiring monitoring and learning accommodations; ongoing monitoring for renal and urological concerns; various injuries including a fractured leg.

b. E.R.

Severe food allergies and sensitivities; asthma; multiple elbow dislocations; eczema; tendon repair surgery on hand following kitchen accident requiring ongoing occupational therapy and possible further surgery; neck pain from motor vehicle accident in 2017.

c. C.R.

Gastro Esophageal reflux disease; seizures (2014-2016); anxiety related to the separation; ongoing monitoring by pediatrician and endocrinologist for other conditions; investigations for skin and bone condition suspected to be McCune Albright Syndrome.

[14] As of the time of trial, all four children lived at home. F.R. had been accepted to the University of Toronto for a program commencing September 2021, but post-secondary education plans were uncertain. I do not know where he is attending school.

[15] This proceeding was commenced by the Wife in July 2017 and promptly defended by the Husband. The following temporary orders/endorsements are contained in the trial record (strictly procedural orders or endorsements omitted).

a. Endorsement of Newton J., dated October 14, 2016 granting an urgent, ex parte motion by the Wife for exclusive possession of the home, custody of the children, a restraining order and non-depletion order.

b. Endorsement of Pierce J., dated October 20, 2016 on consent: permitting communication between the parties with respect to the children; providing for supervised parenting time; and allowing the Husband to withdraw funds to secure accommodations.

c. Endorsement of Fregeau J., dated December 8, 2016 providing for unsupervised parenting time for the Husband pending full argument of the motions.

d. Order of Fitzpatrick J., dated January 12, 2017 on consent providing for: decision-making authority to the Wife; parenting time for the Husband; interim child support payable by the Husband in the amount of $2,200 per month commencing January 1, 2017 based on an income of $100,200; exclusive possession of the home to the Wife; requiring the Husband to pay 50% of the mortgage payment for the home; and updated income disclosure.

e. Endorsement of Warkentin J., dated May 11, 2017; providing for the withdrawal of a contempt motion brought by the Husband and other procedural issues.

f. Order of Newton J., dated October 19, 2017: changing child support to $1,841 per month commencing July 1, 2017 based on an income of $80,940; and striking from the January 12, 2017 order the requirement for the Husband to pay 50% of the mortgage.

g. Order of Fitzpatrick J., dated February 21, 2018: suspending enforcement of arrears of child support by FRO in the amount of $5,692.05 pending further order of the court; requiring the Husband to pay temporary spousal support in the amount of $500 per month without prejudice to the position the parties may take at trial as to the quantum of arrears of child support, entitlement and quantum of spousal support and duration of spousal support (two other endorsements also pertain to issues on this motion)

h. Numerous case and trial management endorsements.

Analysis of the Issues:

Divorce

[16] The parties have established the requisite facts for the granting of a divorce. Most notably, at the time of trial the parties had been separated for a period in excess of a year with no reasonable prospect of reconciliation. An order for divorce shall issue.

Ongoing Child Support:

[17] The parties seek an order changing the child support provided for in the October 21, 2019 final order from $2,005 per month based on the Husband’s 2018 income of $85,283 to $1,937 based on his 2020 income of $82,170.

[18] While I agree that child support should be adjusted annually based on the previous year’s income, there is no motion to change that final order before me. Ongoing child support was finalized in the October 21, 2019 order, and should not be revisited at trial.

[19] Having said this, I will grant the order requiring an annual exchange of income information, adjustment of child support and proportionate sharing of s. 7 expenses effective July 1, 2021. This was not addressed in the final order and will give the parties the ability to adjust the child support on an ongoing basis without the need for a motion to change (unless they are unable to agree upon the amount).

Child Support Arrears and Retroactive Adjustment Claims:

[20] The Wife seeks “arrears” of child support to the date of separation. The Wife’s claim is framed as “arrears”, but the true nature of her claim appears to be a combination of both arrears in the year 2017 and retroactive child support.

[21] The Wife argues that the Husband has not paid the amount required by the Federal Child Support Guidelines (the “Guidelines”) for his income for each year of separation. She states that from the date of separation to July 1, 2021 the Husband has underpaid child support by $8,739.

[22] The Husband disagrees and argues that the parties have had support agreements/orders in place since early in the proceeding and he has complied faithfully with these orders. If anything, as of July 2021, he claims to have overpaid support by $548.00. He also claims to have paid additional amounts to FRO, for an allegedly false claim of arrears submitted by the Wife, for which he seeks repayment.

[23] The following issues are raised by the parties with respect to arrears and retroactive support:

a. What should the Husband have paid for the period of October 2019 to July 2021?

b. What did he pay?

c. Is any amount on account of arrears of a support order?

d. Should an order be made for the difference? (whether underpayment as claimed b the Wife or overpayment as claimed by the Husband)

[24] The Wife argues that the Husband’s Line 150 income and the support required pursuant to the Guidelines has been as follows:

a. 2016 taxation year $132,753 table amount $2,798 x 3 mos = $8,394

b. 2017 taxation year $85,362 table amount $2,007 x 12 mos = $24,084

c. 2018 taxation year $85,283 table amount $2,005 x 12 mos = $24,060

d. 2019 taxation year $81,936 table amount $1,932 x 12 mos = $23,184

e. 2020 taxation year $82,170 table amount $1,937 x 12 mos = $23,244

f. 2021 taxation year based on 2020 to June 30, 2021 is $1,937 x 6 mos = $11,622

(2021 income not known at the time of trial)

Total Support Payable: $114,588

[25] The parties calculated the support paid and payable to July 1, 2021. Given that child support is to be adjusted effective July 1, 2021 I have adjusted the parties’ numbers to calculate the payable and paid amounts as of June 30, 2021.

[26] The Wife’s calculations as to amounts paid and the shortfall, adjusted as of June 30, 2021 are:

Year Paid Shortfall/Overpayment

a. 2016 taxation year $4,400 -$3,994

b. 2017 taxation year $21,131 -$2,953

c. 2018 taxation year $22,092 -$1,968

d. 2019 taxation year $22,092 -$1,092

e. 2020 taxation year $24,060 +$816

f. 2021 taxation year $12,030 +$408

(to June 30, 2021)

Total amount paid: $105,805

Total underpayment: $8,783

[27] The Husband’s calculations as to what he should have paid are sometimes based on the previous year’s income as opposed to the actual known income for any given year. In Vanos v. Vanos, 2010 ONCA 876, [2010] O.J. No. 5539 (C.A.) at para. 13, the Ontario Court of Appeal held that where a court is considering the amount of child support that should have been paid in a prior year, the payor’s actual income for that year is the amount that should be used to calculate support for the prior year, so long as the payor’s actual income for that period is known. I have, therefore, adjusted the Husband’s calculations as to shortfall/overpayment based on his actual income and Guideline support payable for a taxation year (subject to the note below). Based on these adjustments, there is an underpayment of child support for the period in question.

Year Paid Shortfall/Overpayment

a. 2016 taxation year $ 4,400 - $617

b. 2017 taxation year $24,246 +$162

c. 2018 taxation year $22,092 -$1,968

d. 2019 taxation year $22,092 -$1,092

e. 2020 taxation year $24,060 +$816

f. 2021 taxation year $12,030 +$408

(to June 30, 2021)

Total paid: $108,920

Total underpayment: $ 2,291

*Note: The Husband takes the position that only one-half a month of support was payable for October 2016. While the parties separated early October, they remained in the home together and paying bills together until October 13, 2016. He further takes the position that for October to December 2016 his disability income should be used as opposed to his total annual income. These calculations reflect those positions.

[28] The primary differences in the calculations of the parties are with respect to what support should have been paid in 2016 and what was actually paid in 2017. With respect to each of these years:

a. 2016

The parties separated October 3rd, 2016. The Husband began paying $2,200 per month on account of child support effective November 2016. The Wife argues that he should have paid $2,798 for each of October, November and December based on his total taxable income for that year.

I disagree and accept the position of the Husband. The evidence of the Husband was that commencing October 13, 2016 he was in receipt of disability benefits, the level of which is reflected in his 2017 income. While generally support is based on total income for the year, this is subject to discretion is that amount is not appropriate. In this case, it is not. The Husband’s 2016 income is not reflective of his earnings for these first three months following separation because his income situation changed immediately. His actual, known income for the months of October to December 2016 was his disability income. His support obligation should be based on this amount.

I also agree that it would not seem fair or reasonable to award a full month of child support for October given the joint banking and payment of expenses the parties’ maintained until mid-October. For the purpose of calculating a possible retroactive award, I find that it is appropriate that the Husband pay $2,007 per month on account of child support, based on his disability income at the time, for November and December 2016 and one-half this amount for October 2016.

b. 2017

The written closing submissions of the parties provided useful summary charts of the evidence with respect to amounts paid on account of support. Where the parties differ is as follows:

Month Wife says paid: Husband says paid:

July 2017 $1,000 $1,841

August 2017 $500 $1,841

September 2017 $1,000 $1,841

October 2017 $1,749 $1,841

The October 19, 2017 order of Newton J., provided that the child support payable from July 1, 2017 onwards was $1,841. Until October 19, 2017 there was also an order requiring the Husband to contribute to one-half the cost of the mortgage.

The evidence of the Wife is that when amounts were paid to the joint account from the Husband and not clearly identified as child support, she would first apply them to his half of the mortgage payment and then count the balance for child support. For example: In July 2017 he deposited $1,750 into the account. The Wife attributed $750 to the Husband’s portion of the mortgage obligation and the remaining $1,000 as child support.

The Husband’s evidence is that he paid both amounts; the child support he was obligated to pay and the mortgage.

Further complicating the matter is that on September 16th, 2017 the Wife swore a Statement of Arrears with the Family Responsibility Office claiming $7,075 in arrears for the period of February 1, 2017 through to September 1, 2017. Her calculation does not correlate with the bank records of amounts paid, but this discrepancy may be on account of her deducting from the payments amounts for other items (i.e. mortgage) and not attributing it to child support. I do not know, based on the evidence of the parties if any of this was collected that is not accounted for in their evidence and submissions as to what was paid. It appears that FRO was collecting $779.50 from the Husband’s monthly long-term disability benefits on account of arrears. I do not know how long this occurred for, and FRO appears to have been adjustments and credits to the arrears’ calculations, but I cannot tell the extent to which this overpayment has been corrected. If it has not, then some further adjustments to the calculations as to what he paid, will be required.

The evidence of what was and was not paid is confusing to say the least. Based on the banking and FRO records, I find that the following amounts were paid by the Husband on account of child support:

July 2017 $1,750

August 2017 $1,250

September 2017 $1,750

October 2017 $1,750

October 30, 2017 supplemental payment to FRO to account for shortfalls in July – October payments: $ 776

I find that the total support paid for 2017 was $24,158.

[29] Based on the foregoing, and subject to any adjustments that may be required for amounts collected by FRO on account of “arrears” that have not been credited to the Husband in my calculations, I find as follows:

a. The child support payable by the Husband from October 13, 2016 to June 30, 2021 was $111,212.

b. The amount actually paid by him was $108,832

c. The underpayment of support is $2,380

[30] No amount of the underpayment is on account of arrears of existing court orders. Therefore, I find that there are no arrears owing.

[31] The question now becomes whether I should exercise my discretion to make a retroactive child support award for $2,380. On the one hand the Husband argues that I should not; he has met his support obligation throughout the period of separation, adjusting as changes to his income became known. On the other hand, he testified that if he has made an underpayment, he will pay the difference.

[32] Parents have an obligation to support their children in a way that is commensurate to their income. The Wife claimed child support in accordance with the Guidelines and the Husband’s income retroactive to the date of separation. As the proceeding progressed, the parties did their best to adjust support based on income information they had. But the reality is that the full income picture was not always known as they made their periodic adjustments and there is a shortfall in what was paid, over what should have been paid. The amount of the underpayment will not cause financial hardship. I find that the Husband shall pay to the Wife retroactive child support in the amount of $2,380 for the period of October 2016 through to and including June 30, 2021.

[33] While not child support, the Husband was also obligated to contribute to one-half of the mortgage payments for the period of January 12, 2017 until that obligation was terminated on October 19, 2017. The Wife is entitled to judgment for any arrears of these payments, although it is not clear to me, based on the evidence I have, as what those arrears are. If the parties cannot agree, they shall schedule an appearance before me to determine the issue. If further documentary evidence is required to determine this issue, it shall be filed in affidavit form prior to the appearance.

Section 7 Expenses:

Ongoing and each party’s share:

[34] Section 7(1) of the Guidelines provides that a court may provide for an amount to cover all or any portion of certain listed expenses, if the expense is reasonable in relation to the means of the parties and the family’s spending pattern prior to separation, and it is necessary in relation to the best interests of the child. This amount is over and above the child support otherwise payable and is often referred to as an “add-on”.

[35] The expenses included in s. 7 that are relevant to this case include health-related expenses that exceed insurance reimbursement by at least $100 annually and extraordinary expenses for extracurricular activities. Not all extracurricular activities are payable pursuant to s. 7 of the Guidelines. They must be found to be “extraordinary”.

[36] In determining what is “extraordinary” the court must consider the amount of the expense in relation to the income of the Wife, including the amount of child support payable. The court may also consider the natural and number of activities, the special needs or talents of a child and any other similar factors the court feels are relevant.

[37] In determining the amount of an expense, s. 7(3) of the Guidelines requires the court to consider whether any subsidies, benefits or income tax deductions or credits relate to the expense and deduct these amounts.

[38] Section 7 expenses are generally shared in proportion to income. While the court may depart from this general rule, it should only do so in unusual cases and for good reason: R. (E.K.) v. W. (G.A.), 1997 CanLII 22798 (MB QB), [1997] M.J. No. 501 (Man. Q.B.).

[39] A court may deduct from the expense to be shared proportionately between the parties the contribution, if any, from the child.

[40] The Wife seeks an order requiring the Husband to contribute the sum of $565 a month on account of estimated monthly medical expenses that exceed insurance reimbursement by $633, with a requirement that he also pay 90% of additional s. 7 expenses, with the Wife contributing 10%.

[41] The Husband argues that his share should be 50%. He argues that the Wife should have to pay 50% to keep her accountable and prevent her from incurring unnecessary costs. He fears that if he is responsible for the majority of costs, the Wife will continue to incur unnecessary costs and spend recklessly. He wants to be able to give the children everything they need and feels defeated by his inability to pay for everything they want. He disputes the Wife’s $633 calculation of monthly charges.

[42] I accept the Husband’s evidence that the parties spent beyond their means during the marriage and that those spending patterns are not sustainable. Having said this, I am not convinced that this is one of the unusual cases in which a court should change the proportionate sharing of expenses. Terms and conditions can be set for the payment of s. 7 expenses that will hopefully guide and assist the parties in navigating this issue on a move forward basis.

[43] While it would likely diffuse tension between the parties if a monthly amount is paid by the Husband on account of s. 7 expenses, I share his concerns with respect to some of the items claimed by the Wife.

[44] The Husband has submitted he is willing to pay a flat rate of $350 monthly for his share of all s. 7 expenses, with no accounting for a shortfall or overpayment. Based on my assessment of allowable s. 7 medical expenses for previous years and given that the Wife is currently only paying extra-curricular activity expenses for D.R., this would be enough to cover the Husband’s share of these amounts, but possibly not F.R.’s education costs. I am prepared to order this amount, with an annual review, subject to other terms with respect to F.R.’s education costs given that they are not known to me at this time.

[45] Based on the issues raised at trial, and to assist the parties in making this adjustment annually I find as follows:

a. The Guidelines require the Wife to bear the first $100 of any health/medical related expenses annually. She must deduct this amount first each year before calculating the expenses for which the Husband is obligated to share.

b. The Wife’s claims for over the counter medications (i.e. ginger gravol, Maalox, and Tums) and creams that are not prescribed are not s. 7 expenses and the Husband has no obligation to contribute to these expenses.

c. I find that the Hypersaline and Nebulizer are necessary expenditures for D.R. and are s. 7 expenses.

d. I find that only vitamins prescribed for D.R. by a physician are s. 7 expenses. Unless prescribed by a physician on an ongoing basis, the brain armour supplement cost claimed by the Wife for F.R. and D.R., are not to be included in s. 7 expenses.

e. Given the severity of E.R.’s allergies, I find the Medic Alert monthly membership fee to be a reasonable and necessary s. 7 expense.

f. I find that the amount not covered by the Husband’s extended health care plan for the children’s regular dental care and cleanings, along with procedures recommended by their dentist that are not strictly cosmetic in nature, are s. 7 expenses.

g. Eyeglasses for each child that needs them, along with contact lenses for sports are necessary, provided they are obtained at a reasonable cost. With respect to eyeglasses, it is reasonable to replace them as prescriptions change, provided that the replacement glasses are a reasonable cost keeping in mind the coverage allowed under the health care plan. Eyeglasses should not need to be replaced annually unless the prescription changes or they break.

h. The Husband’s evidence is that there is a lesser co-pay on prescriptions at the pharmacy he is employed at (Superstore) than the pharmacy the Wife currently chooses to use. The Wife states that she does not wish to go there as some of the Husband’s co-workers swore affidavits in support of him in this proceeding, and the Wife is not satisfied with their delivery service. The Wife is not required to use this pharmacy, but given this benefit, it is not reasonable for her to incur co-pay costs and attribute 90% of that cost to the Husband. I have not eliminated all of the co-pays from the retroactive s. 7 expense claims, but on a move forward basis, the Wife shall be responsible for payment of any co-pay over and above what the Superstore pharmacy would have charged.

i. Only the portion of any expense not paid for by a government or other benefit should be shared proportionately.

j. The Wife’s evidence is that $190 per month is received from ODSP to assist with D.R.’s medical expenses. She will need to account for this in reconciling the expenses for which she requires contribution from the Husband.

k. With respect to activities, each child shall participate in one extra-curricular activity at a time. For the reasons set out below, the Wife shall continue to apply to Pro-Kids to reduce the activity costs. If the Husband feels that there are other programs from which the parties can receive assistance with extra-curricular activity costs, he shall notify the Wife and assist as required to apply.

[46] In determining the cost of s. 7 expenses for which no extended health care or insurance coverage is paid, it is expected that the Wife will also avail herself of all available government subsidies through various plans such as the Assistive Devices Program and Trillium, and the parties will take into account any applicable tax benefits or credits.

Retroactive:

[47] The Wife has incurred significant s. 7 expenses on account of medical, extra-curricular and other expenses for the children. These expenses fall into the categories of medical expenses and extra-curricular activities. The Wife argues that the Husband owes her $35,731.56 in total. The Husband disputes this claim.

Health and Medical:

[48] The Wife claims to have spent $23,388.48 for out of pocket health and medical expenses since separation. She argues that the Husband has contributed very little to these costs and based on a 90% proportionate share, the Husband owes $20,063.90 on account of these reasonable and necessary health care expenses.

[49] Entered into evidence at the trial (Exhibit #11) was a lengthy and detailed chart prepared by the Wife of the health care related expenses she is claiming and the verification of those expenses. The Husband takes issue with the reasonableness and necessity of many of the expenses. He also questions duplicate entries and items for which he asserts that either he or the Wife received reimbursement for.

[50] Complicating this issue is that the Husband received reimbursement for certain items, paid for others, and the Wife is either entitled to or has received reimbursement for some of E.R.’s expenses directly, but the parties have not totalled these amounts. I am left to determine all of this based on limited evidence and cryptic notes.

[51] The disputed expenses and my findings with respect to those expenses are as follows:

a. Item #1 – There is no verification of the expense incurred.

b. Items #2 & 3 and other hypersaline charges – I am satisfied that this is a reasonable and necessary expense. Despite the Husband’s claim that there are alternatives to this treatment, I am satisfied it is necessary. Throughout the Wife’s claims for this item, where it is easily identifiable, I have adjusted the amount of this claim to the lesser charge of Superstore as being a reasonable amount allowed, as opposed to the much higher Shoppers’ charges.

c. Items #4 & 5 – Twinrix vaccine – The Husband believes he paid one-half of E.R.’s $70 expense but provided no verification and therefore the full amount of the claim is allowed. F.R.’s $70 expense pre-dates separation and is not allowed.

d. Item #7 – 9 – The only amounts paid for post-separation clearly relating to the children are $86.30. The account is the Husband’s name, but he did not dispute these charges. The evidence of the Wife is the Husband refused to pay. $86.30 is the amount allowed for these expenses.

e. Items # 11, 29, 30, 31, 32, 33 – Each of these claims is for $150 for psychological services for one of the children. The Husband recalls paying for at least three of these sessions and states that when the invoice shows payment by Mastercard, he paid those bills, and when it shows payment by Visa, the Wife paid. Only #30 and #33 were paid by Visa. The Husband received $120 reimbursement from insurance for these services. I accept his evidence that he paid these expenses (shown as paid by Mastercard). The amount allowed is $300 for the two invoices paid by the Wife. Of the other four, the Husband was out of pocket $30 each (total of $120), for which the Wife is responsible for 10%.

f. Item #17 – Co-pay not allowed.

g. Items #18 & 21 – Over the counter cream – not a s. 7 expense.

h. Item #19 – The Wife lists this as a dental expense for C.R./E.R., but the invoice shows the patient as the Wife. No amount allowed.

i. Item #22 – This invoice is for “concussion rehabilitation sessions” for “exercise testing, and symptom management guidance” for F.R. The Husband argues that this is with a personal trainer. There is no evidence that this was a necessary expense.

j. Item #23 – The Wife shows this as a prescription charge, but the receipt shows it to be for vitamins from a health food store. This is not a s. 7 expense.

k. Item #17 & 18 – Brain armour supplements were prescribed for F.R. on these occasions.

l. Item #26 – Concussion clinic testing – the Husband disputes the necessity of this expense. The Wife gave no evidence as why this was needed. No amount allowed.

m. Item #34, 39, 40, 41, 35, 49 (and others) – I am satisfied that the orthodontic charges for E.R. and F.R. are necessary and reasonable. The Husband received reimbursement from his plan for some of these charges. He should pay his share.

n. Item #36 – This co-pay dental charge shows the Wife as the patient. No amount allowed.

o. Item #38 - $428.45 total for hypersaline charges for 2017 – The Husband believes he paid for this but did not provide verification of the same and provided no basis for this belief in his evidence. Amount allowed.

p. Items #41 – 45 – The Husband argues he paid half of these charges. The Wife says he did not. He has provided no evidence of payment and no basis on which I can assess his belief. In March 2018 the Wife changed pharmacies, which increased the cost of this prescription. Again, the increased cost of all hypersaline charges over and above the Superstore cost is not reasonable and is disallowed.

q. Item #53, 80 – no verification of a prescription for these multivitamins has been provided to establish the necessity of the expense.

r. Item #56 – “PEG” Sam’s Club receipt. I do not know what this is. No evidence of the medical necessity for this charge has been provided.

s. Item #57, 70, 96 – Over the counter cream not a s. 7 expense. No evidence as to the necessity of this expense.

t. Item #64 – No proof of necessity of this over the counter cream. Not allowed.

u. Item #68 – Aveeno cream not allowed.

v. Item #72 – No receipt or proof of necessity.

w. Item #75 – Husband paid one-half of the $408.00 charge. His shortfall for this expense, based on 90% and what he has already paid, is $163.20

x. Item #82(2), 85 – No evidence of necessity.

y. Item #83 – No receipt or evidence of necessity.

z. Item #84 – Vitamins. Not a s. 7 expense.

aa. Items #99 and 100 – For life insurance premiums for the children are not allowed. These are not agreed to and are not s. 7 expenses.

bb. Item #103 – Over the counter sanitizer and other medications not allowed as s. 7 expenses.

cc. Item #110 – No verification of necessity.

dd. Item #112 – No verification of expense.

ee. From item #116 onwards, the Husband began paying 50% of agreed upon expenses. The amounts claimed have been adjusted for the Husband’s 90% share of the total expense.

ff. Item #119 - The notation indicates the Husband paid.

gg. Item #120 – The notation indicates that while the claim is for $110, $88 was received from insurance and “given no pay for remaining”. I infer from this that the true out of pocket cost to the Wife was $22.

hh. Items #124 – 128, 131, 136, 141, 142 and 151 – These charges are for occupational therapy for E.R. These claims total $690. The evidence of the parties is that there is insurance coverage for up to $800 payable to the Wife. The Husband has paid one-half the hand therapy charges, although it is not clear whether the claimed amounts are the total charges and the Husband has paid 50% of these, or whether he has been invoiced separately for his share. None of these charges are allowed as they fall within the $800. If the Husband has paid 50% of these charges, I cannot give him credit as his evidence was not clear on this point.

ii. Item #129 – dealt with under extra-curricular and other expenses. This is a duplicate request.

jj. Item #130 is a duplicate request for item 106.

kk. Item #133 – I infer from the notes that the Husband and insurance paid $24.97, leaving the Wife with a balance of $2.72. A similar adjustment is made for #148.

ll. Item #138 – Not proven to be a s. 7 expense.

mm. Item #143 – The amount of $27.69 is claimed with a note “gave reimbursement only” and then a subsequent note “80%”. I conclude the total claimed is 80% of $27.69 or $5.54

[52] With the foregoing adjustments, and taking into consideration that the Wife’s entitlement is to claim a proportionate share of medical expenses that exceed $100 annually (the first $100 for 2016-2021 being her responsibility), I find that the total retroactive medical expenses owed by the Husband from the date of separation to March 30, 2021 is $11,842.21.

Extra-Curricular Activities:

[53] The Wife alleges she has spent $17,408.52 on extracurricular activities since separation that were either agreed upon by the parties, consistent with what the children had done prior to separation, or required for D.R, based on his doctor’s recommendations. She argues that the Husband’s 90% share of these expenses is $15,667.66.

[54] The Husband disputes the expenses on the basis that they are either not s. 7 expenses, they are not proven with respect to amounts, or they are not reasonable given the finances of the parties.

[55] With respect to many of the expenses, the Wife argues that endeavoured to communicate with the Husband, but they either could not agree, or consent was subsequently revoked after payment made. At a certain point, she stopped communicating with the Husband and did not discuss expenses with him. She claims that she did this because a child did not want her to tell the Husband. Unfortunately, this estrangement between the Husband and the children has impacted these issues considerably, including the Husband’s decision not to pay for certain items. The Husband’s evidence is that he also became frustrated by the Wife’s lack of response to his questions or suggestions about certain expenses. Nonetheless, the Wife has an obligation and needs to communicate with the Husband with respect to items she expects him to contribute towards. The Husband has an obligation to respond reasonably.

[56] I note that I had little to no evidence as to the ability, if any, of the children to contribute to their own expenses. Given their ages and conditions, I assume there was none. The Wife did testify to receiving approximately $1,000 per month through the Husband’s CPP disability benefit for the children.

[57] I find that the total allowable s. 7 expenses are $10,269.95 plus the Husband’s 50% share of F.R.’s school trip. The Husband’s 90% share of allowable expenses is $9,242.96 plus $1,382 for a total owing of $10,624.96. These expenses were incurred by the Wife, claimed in her pleadings, are affordable by the Husband when one considers they were for a five-year period, many of them he had notice of, and they should be paid. My findings with respect to the claimed expenses are:

a. 2016 – Total Allowed: $1,262.93

i. September 2016 $149.16 for C.R. and $149.16 for E.R. for musical play, and September 26, 2016 receipt for $900 for F.R.’s hockey registration are disallowed. These expenses and the receipt for payment pre-date separation.

ii. Otherwise, the total remaining activity expenses of $1,362.93 I find are extraordinary in relation to the Wife’s income and support received at the time. I also find the amounts claimed on account of hockey for D.R. and F.R., piano for C.R. and voice lessons for E.R. to be reasonable and necessary based on prior spending patterns, with the exception of the charge of $100 for “tickets”. The Wife’s position is that this is the fee given the Husband’s refusal to sell them, but there is no evidence as to her or the child’s obligation to do the same.

The Wife’s evidence is that the children regularly participated in two activities at a time each, until the medical needs of all children increased, and the parties were only able to allow one per child at a time. It is reasonable that this continue.

iii. I do not allow $1,341.23 for one-half of birthday and Christmas gifts for the children. These are not proper s. 7 expenses but can be allowed if there was agreement to pay. The Husband’s agreement to contribute was conditional upon his participation in holiday celebrations and reasonableness. The parties could not come to terms on these issues and therefore there is no agreement to pay.

b. 2017 – Total Allowed: $3,767.71 at 90% plus $1,382

i. The Wife spent over $5,000 in extra-curricular activity costs for the children in 2017. The costs are extra-ordinary when considered in total, for all the children. The expenses claimed are reasonable and consistent with the Wife’s evidence as to activities the children previously participated in. With respect to D.R. only, I note that the Wife claims hockey expenses for summer and winter hockey and a 3-on-3 fun tournament. The Husband acknowledges that D.R.’s medical condition benefits from physical activity but argues that given the limited finances of the parties he should participate in less expensive sports such as swimming, biking or playing outside. Given D.R.’s medical condition and the evidence filed of the importance of activity to his ongoing lung functioning, I find the summer and winter hockey expenses necessary and reasonable, particularly given that this was D.R.’s chosen activity prior to separation and the level at which he plays suggests some talent for the sport. The additional tournaments outside of his summer and winter league play must be agreed upon for payment as they are not necessary, particularly given that D.R. also participated in spring soccer.

ii. The sum of $1,482 is claimed on account of F.R.’s school trip to California. But for the Husband’s agreement to pay half this cost ($2,964 total), I would not have found the expense reasonable or necessary in the circumstances of this case. It was expensive and the parties have a lot of expenses requiring their resources. The Husband did agree to contribute 50% of this cost, and on this basis the Wife enrolled the child. The Husband is responsible for $1,482.

The Husband states that he made 6 or 7 payments towards his one-half share to F.R. directly. He provides no proof of payment. The Wife is only aware of approximately $100 paid. The balance owing by the Husband is $1,382.

iii. The $80 claimed for the 3-on-3 hockey for D.R. at line 20 and tournament fees at line 32 has a duplicate receipt. This expense is not necessary. The Husband agreed to pay 50% of this cost, but it was the only basis on which he agreed to pay for this unnecessary expense. The balance is not allowed.

iv. The Husband takes issue with some of the Wife’s hockey receipts for payment as they are made to her Father. The Wife’s evidence is that often her Father paid the fee and she reimbursed him. Given that the amounts are reasonable, and the Husband does not dispute that the child participated in the activity, I am allowing these expenses but the Wife should ensure that if this occurs in the future she provides the original invoice along with her proof of payment.

v. The sum of $91 is claimed for 2017 for school accident insurance for the children. Normally, this would not be a s. 7 expense. The Wife argues it is payable based on the Husband’s agreement. She argues that he recommended it to her and then refused to pay. The Husband acknowledged in his submissions that although it is not a s. 7 expense, he is agreeable to paying it, particularly given the benefit the parties have derived.

vi. I do not find that the $129.95 claimed for F.R, to participate in an officials’ certification clinic or for recertification is necessary for his hockey activity, nor is it reasonable given all the other expenses of the parties.

c. 2018 – Total Allowed: $2,398.02

i. The Wife claims activity expenses in 2018 for D.R. only. She testified that she began to access subsidy programs for other extra-curricular activities such as Pro-Kids. The total expenses claimed for activities are $3,247.02. I find the expenses for 2018 extraordinary in relation to the income of the Wife and support paid, when taking into consideration support is payable for four children and these expenses pertained to one child alone.

ii. The question then becomes which expenses were reasonable and necessary. The amount claimed includes 3-on-3 hockey expenses of $140, which I have determined not to be a reasonable and necessary expense, and $800 for a goalie camp. The Husband was not notified of the goalie camp expense in advance. This expense is beyond the means of the parties at the time and was neither reasonable nor necessary.

d. 2019 – Total Allowed: $2,497.04

i. The Wife claimed activity expenses of $3,346.04 for 2019, comprising of D.R.’s hockey expenses and $665 for F.R.’s driving school expenses. Consistent with previous years, I find that the total expenses in relation to the Wife’s income and support paid for four children to be extraordinary. With the exception of the 3-on-3 hockey expense of $140 and summer hockey school of $800, the expenses are reasonable and necessary.

e. 2020 – Total Allowed: $344.25

i. The Wife claims extra-curricular activity expenses of $756.07 for 2020. I find this not to be extraordinary and not allowable under s. 7.

ii. The Wife further claims $253.25 for post-secondary application fees. I find that this is an expense for post-secondary education pursuant to s. 7(1)(e). It is a reasonable and necessary expense. The Husband disputes it on the basis that the Wife should have paid it from the RESP. The child was not yet registered in post-secondary education and I have no evidence that funds may be withdrawn from the RESP for this purpose.

iii. An additional $91 is allowed for the school accident insurance, although it is noted that the Wife duplicated this expense at lines 50 and 56.

Life Insurance:

[58] The Wife seeks an order requiring the Husband to purchase additional life insurance. He currently has approximately $250,000 in insurance through employment/disability and RRSPs that he has indicated will be designated for the benefit of the children. He shall designate the children as equal irrevocable beneficiaries of these policies and RRSPs, with the Wife as the Trustee for the children for so long as he is obligated to pay support.

[59] The aforementioned policies are workplace based and ownership cannot be transferred to the Wife.

[60] There are additional policies owned by the Husband on the lives of the children, the Wife, and him and the Wife jointly. I do not have copies of the policies and am basing my decision on the Wife’s representations that the four policies are term life policies and therefore have no cash surrender value.

[61] The Husband has deemed it unaffordable to continue to pay for these policies and I do not disagree with him. However, the Wife has made the choice to continue them and has paid the premiums. She wishes to have ownership transferred to her.

[62] The Husband has refused, partially it appears because the Wife seeks to claim 90% of the premium costs from the Husband as a s. 7 expense (medical) or otherwise. These are not s. 7 expenses and the Husband is maintaining sufficient life insurance through work. He cannot afford his child support, s. 7 expense obligations and payments for all these policies. Having said this, if the Wife wishes to maintain any existing term life policies throughout the remainder of their terms for her benefit or that of the children, and provided she is willing to pay the costs associated with these policies without contribution from the Husband, her request to have ownership of the policies transferred into her name and for her to be able to designate the beneficiaries is not unreasonable and shall be ordered. If, however, the Wife’s representations are incorrect and any of these policies have cash surrender values, the Wife shall be required to pay the Husband one-half the cash surrender value on the date of transfer.

Extended Health Care Benefits:

[63] The Husband has an obligation to support the Wife and children. He shall name them as dependents for the purpose of his extended health care benefits for so long as he has a support obligation and they qualify pursuant to the terms of the plan.

Spousal Support – Ongoing and Retroactive Adjustment:

Ongoing:

[64] I find the Wife is entitled to spousal support from the Husband on a compensatory basis. She has foregone her career and any career opportunities to care for the children and the family. The Husband acknowledged during the trial that the Wife remains unable to work, at this time, due to her role as primary caregiver and the significant needs of the children. The Wife has suffered an economic disadvantage arising from the marriage and the marriage breakdown.

[65] The issues then become quantum, duration, and retroactivity.

[66] Pursuant to the Order of Fitzpatrick J., dated February 21, 2018, the Husband has been paying $500 per month on account of spousal support commencing April 2018.

[67] Spousal Support Advisory Guidelines calculations for each year of separation show that no amount is warranted on account of spousal support given the incomes of the parties and the Husband’s obligation with respect to child support. This is particularly so if one factors in the obligations with respect to s. 7 expenses, which the parties did not do in their calculations.

[68] The Wife argues that an income of $132,752 should be imputed to the Husband for spousal support purposes, which will warrant a monthly payment of spousal support. Curiously, she did not argue that income should be imputed for child support purposes also. She argues that the Husband is intentionally underemployed and that he should be able to work in his former occupation as a pharmacist.

[69] I accept the Husband’s evidence that he has been unable to work as a result of significant depression arising from the breakdown of the marriage, his grief pertaining to D.R.’s health, and his loss of relationship with the children. His emotional state was evident during this trial. The financial stressors and strains the parties have experienced along with this litigation have exacerbated his condition. His evidence also suggests he was off work at some point prior to separation for stress and depression related reasons, but in receipt of short-term disability benefits, which topped his income up to 80% of full pay. I do not find that this is an appropriate case for imputing income.

[70] Once the home is sold or transferred to the Wife there shall be no spousal support payable. This is subject to change in the event of a material change in circumstances, including but not limited to a material change in the Husband’s obligation for child support and/or s. 7 expenses.

Retroactive:

[71] The Husband seeks repayment of the spousal support he has paid since April 1, 2018. In total he has paid $23,000 in spousal support as of January 31, 2022. The SSAGs suggest that no spousal support should have been payable.

[72] The Husband’s Notices of Assessment for 2018 and 2019 suggest that for some reason the Husband has not deducted spousal support from his income for tax purposes. He gave evidence that the Canada Revenue Agency will only allow him to deduct $1,200 per year. With respect, this makes no sense and the Husband is encouraged to see tax advice. I am unsure whether the Wife has included the payments or whether the Husband has deducted his payments in subsequent taxation years. I have no evidence or submissions from either party as to the income tax implications of the order sought by the Husband for a retroactive adjustment.

[73] Upon reviewing the Endorsement on Motion of Fitzpatrick J., dated February 21, 2018, the temporary spousal support award did not appear to be ordered on the basis of the ranges provided for in the SSAGs, but rather based on a determination that given the Husband’s refusal to continue to contribute to the mortgage payments pending trial, the Wife had a need and the Husband had an ability to pay. The assessment of the Husband’s ability to pay did not factor in his obligation for s. 7 expenses, as this had not yet been determined. The support payment ordered was made without prejudice to the positions of either party with respect to ongoing or retroactive quantum.

[74] The SSAGs specifically provide for a departure from the range suggested (in this case zero support across the range) on an interim basis in the event of compelling financial circumstances. The SSAGs recognize that the amount of support may need to be different, either higher or lower, during the interim period while parties are sorting out their financial situation after separation.

[75] In this case I find that the it was reasonable for Fitzpatrick J., to award the Wife an amount higher than the SSAG range for the period of April 1, 2018 to the date of trial while the parties sorted out their complex financial issues and the Wife was left to be solely responsible for the expenses associated with the home. She had the need and the Husband had the ability to pay. I do not find it would be appropriate to order the Wife to repay the spousal support received, but rather to take into consideration these payments made by the Husband in determining the claims of each party with respect to the matrimonial home.

[76] This is also the reason why I am departing from the SSAG ranges pending disposition of the matrimonial home and requiring the Husband to continue his $500 per month payments temporarily. The Wife continues to have a need during this period to service the joint debt obligation on the mortgage. Given the significant income differential between the parties and the Husband’s ability to deduct this payment and the Wife’s nominal tax consequences of including it in income, this appears to be the most affordable way for the parties to continue to manage this obligation pending disposition of the home. The Wife’s obligations to the children given their significant needs prevents her from otherwise earning an income and servicing this debt on her own pending sale or transfer to her.

Equalization of Net Family Property Issues:

[77] Section 5(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides that when spouses are separating, the spouse with the lesser net family property of each of them is entitled to an amount equal to one-half the difference. This is called an equalization of net family property.

[78] Each party has filed net family property statements setting out their calculation of the equalization payment:

a. The Wife calculates that the Husband owes her an equalization payment of $26,712.93; and

b. The Husband argues that the Wife owes him an equalization payment of $45,500.

[79] Each party also argues that this is a case in which there should be an unequal division of net family property. Before deciding whether an equalization of net family property would be unconscionable, I must make my findings as to what the equalization payment actually is.

[80] Based on the Husband’s April 30, 2021 net family property statement, the Husband’s calculation of net family property was substantially incorrect. He did not include bank balances, pensions or other assets and overall added/subtracted various items incorrectly. During his evidence we reviewed the Wife’s net family property statement to identify the issues. The Wife’s net family property statement in some respects is equally perplexing. The primary differences in the equalization calculations of the parties, along with issues identified by me in the Wife’s calculations, and my findings with respect to those differences are:

a. Household goods and vehicles:

The Wife acknowledged in her evidence that she retained most of the household items. Much of what the Husband took was personal items such as toiletries, medications, and small kitchen items. The Wife has attributed a total value of $8,800 to all household items, sport and hobby equipment and computers, tools and electronics.

The Husband argues that this figure is significantly undervalued. He estimates the value at $25,000. He testified that earlier in the proceeding the Wife claimed that his tools were worth $50,000 and so he told her to keep them and put this value on her side of the net family property calculation, which she has not done. He also indicated that the appliances are relatively new, and he was still paying the debt on them as of separation, but unfortunately did not provide evidence as to the value of that debt so that he could be credited with it in the calculation of his net family property. He believes that $25,000 is a fair value for the full household of contents and tools that the Wife retained.

The challenge is that I have no evidence as to value. I have no lists of the items, when they were acquired, and nothing that helps me determine their value. All I know is that the Wife kept everything, and the Husband has very little. Keeping in mind that the value for family law purposes is not replacement value, but rather fair market value (i.e. resale value) I find that $10,000 is a fair and reasonable value to attribute to the Wife’s household items.

The parties also disagree over the value of the Toyota van. The Husband says the Wife retained a $42,000 vehicle. The Wife says the total value of the vehicle as of separation was $30,000, but the value of her one-half interest is $11,237.54, subject to a debt in excess of $30,000. I have no evidence as to how any of these numbers were arrived at or what the value of the parties’ interest in the lease was as of separation. The only thing the parties agree on is that the Wife kept the vehicle and the right to purchase it at the conclusion of the lease. The parties disagree as to the amount put down on the lease initially. I have no evidence as to the value of the buyout or length of the lease. The best I can conclude given the limited evidence I have is that the amount owing on the lease as of separation ($30,000) was equivalent to their interest in it. I therefore have attributed no value and no additional debt to this asset. I have adjusted the Wife’s net family property calculations accordingly.

As for the Husband’s household items and vehicles, the Wife has attributed a value of $99,500 to him. I have no idea how this amount was arrived at. There is no breakdown, simply a lump sum amount that does not correspond with the Husband’s financial statement. The Wife has kept everything in the house. The Husband kept a vehicle, which his financial statement states was worth $4,500 on separation, but the Husband acknowledged in his evidence was worth $5,000. This is the only value I attribute to the Husband for household items and vehicles on the date of separation.

Jewellery for both parties is dealt with below.

b. Notional Tax Deduction on Pensions and RRSPs:

In response to comments made by me during the course of the trial the Wife’s calculations were amended to provide for a deduction for notional tax costs on the Husband’s pension. No such deduction was given for his LIRA, RRSPs, or those of the Wife. No such deduction was applied to the Husband’s date of marriage value for his RRSP. These adjustments have been made by me. In the absence of proper evidence from the parties, I have simply used the 20% deduction applied by the Wife to the Husband’s pension.

c. Date of Marriage Assets:

The Wife claims a total of $33,950 for assets she had on the date of marriage. This includes $8,000 for household furniture and appliances and $2,700 for computers, tools and electronics. The Husband disputes these amounts and states that the Wife came into the marriage with some small kitchen items and possibly an older bedroom set with an oak dresser. He recalls that he purchased all the appliances the Wife is claiming to have owned on the date of marriage. He claims a date of marriage deduction of $25,000 for furniture and appliances. I find that neither party has met their burden of proof with respect to date of marriage furniture and computers, tools or other such items. No deduction is permitted.

Part of the amount claimed by the Wife is on account of sport and hobby equipment in the amount of $750, which was not proved.

Part of the $33,950 is $2,500 for jewellery owned on the date of marriage. While the Husband does not necessarily dispute this figure, he argues that the Wife acquired considerably more jewellery throughout the marriage that she has not accounted for in stating that her date of separation value is $2,000. I accept the Husband’s evidence in this regard and find that the Wife had at least the same value of jewellery on separation as marriage. $2,500 shall be the value of the Wife’s jewellery on separation and date of marriage.

The Husband has claimed $25,000 for jewellery on date of marriage and date of separation. He too has not proved any of these amounts, although I accept that he too had some items of value on date of marriage and separation. The Wife has not challenged these values and so they are allowed as claimed. Having said this, the Husband’s evidence is that his jewellery remains in the matrimonial home and should be returned to him.

As part of the $33,950 amount the Wife claims $20,000 for a 1998 vehicle owned on the date of marriage. The Husband argues that the vehicle was leased and there is no value. The Wife has not proved the value of this asset. I have not allowed a deduction.

The Husband claims $48,000 for a vehicle he owned on the date of marriage. It was a new vehicle. In evident he testified that $35,000 would be a fair value on the date of marriage. The Wife’s calculations appear to accept the Husband’s values for the vehicle without proof of the same, provided he accept hers. The Wife has allowed $73,000 for date of marriage household items and vehicles for the Husband but has provided no breakdown of this and I have no idea how it was calculated. Similar to the Wife, while I accept the Husband owned this vehicle, he has not proved the value of the deduction and I have not allowed it.

d. Bank Accounts

For reasons outlined below under the heading of “Unequal Division and the Tarion Funds”, I have added an additional $70,000 to the Wife’s bank account column. I have also adjusted the balance for the Husband for the TD joint account from $5,618.10 to $5,600.51, representing his one-half share of this account.

[81] Assuming an equal division of the value of the home (discussed further below), and with the foregoing adjustments made to the net family property calculation, I find as follows:

a. The net family property of the Wife is $205,049.28

b. The net family property of the Husband is $150,798.35

c. The difference between the net family property of the spouses is $54,250.93

d. The Wife owes the Husband $27,125.46, representing one-half the difference in their respective net family properties.

Unequal Division and the Tarion Funds:

[82] The Wife seeks an unequal division of net family property based on a lack of financial disclosure from the Husband with respect to the Tarion and other funds he had in a bank account in his name alone, his “continued intentional underemployment” and the “best interests of the children”. The Wife further appears to be claiming an unequal division based on her paying the expenses for the home since separation and “carrying the extraordinary costs of having four children with extensive medical needs”.

[83] The Husband also seeks an unequal division of net family property based on lack of financial disclosure, “continued intentional underemployment”, alienation of him from the children and “abuse of current laws to financially punish” him and “harm the best interests of the children”.

[84] Section 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 gives the court discretion to award a party more or less than one-half the difference between net family properties if it determines it would be unconscionable to equalize net family properties for one or more of the following limited circumstances:

a. a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of marriage;

b. the fact that debts or other liabilities claimed in reduction of a spouses’ net family property were incurred recklessly or in bad faith;

c. the part of a spouse’s net family property that consists of gifts made by the other spouse;

d. a spouse’s intentional or reckless depletion of his or her net family property;

e. the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

f. the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

g. a written agreement between the spouses that is not a domestic contract; or

h. any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[85] Unconscionability refers to the result; would the equalization payment required by s. 5(1) result in unconscionable circumstances for any of the reasons listed in s. 5(6). Courts have recognized that the test for determining unconscionability is a high one.

[86] Each party’s arguments with respect to continued underemployment and best interests of the children do not fall into any of the permissible categories of circumstances in which a court may deviate from equalizing net family property.

[87] While some adjustments to the amounts received by the parties will be necessary to account for post-separation payments made on account of the home, I otherwise do not find it would be unconscionable to equalize net family property in the circumstances of this case.

Tarion:

[88] The evidence of the parties is that they purchased the matrimonial home in June 2014 for $400,000.They were able to negotiate a price below market value because there were deficiencies with this new build. Fortunately, most of these deficiencies were covered by a Tarion new home warranty plan.

[89] The evidence was that between March 20, 2015 and July 21, 2016 the parties received a total of $161,832.53 in funds from Tarion. The Husband handled the finances of the parties. The Wife states that the Husband was constantly moving the money around from their joint account to his personal account and she has no idea what happened to this money. She feels that $103,000 of these funds was unaccounted for.

[90] The Wife further testified that on January 21, 2015 she saw a printout from the Husband’s personal Tangerine savings account that showed a balance of $128,326.68. While she testified that she believed this was Tarion money the Husband was keeping in his own personal account and perhaps hiding or diverting elsewhere, this is inconsistent with her evidence as to when the Tarion payments began.

[91] The last Tarion payment was received by the parties in July 2016. The best I can gather from the evidence is that these funds were placed into the parties’ joint bank account. The Wife acknowledges that on or around the time of separation she removed $70,000 from the joint account of the parties and deposited it into her personal account.

[92] The Husband’s evidence is that, but for this $70,000 removed by the Wife, the Tarion monies received were used by the family for various things. Rather than use Tarion approved contractors, he felt that they could contract out the work themselves for less money and retain the balance of the funds. The Husband used the funds to pay contractors and to pay household and family expenses. I accept the Husband’s evidence in this regard. I found his evidence with respect to the work done on the home credible, while the Wife in her cross-examination was at times evasive, refusing to admit that which should have been readily admitted (for example, with respect to work done finishing the basement).

[93] The Wife does not accept the Husband’s explanation and argued at the conclusion of the trial that the most equitable way of dealing with this issue is to require each party to list the amount of the Tarion funds they withdrew as assets on the date of separation for the purpose of calculating their net family property. This will require the Wife to add $70,000 to her net family property and the Husband to add $103,000 to his. In the alternative, the Wife claims that neither party should list the Tarion money in determining an equalization of net family property.

[94] The Husband’s evidence, which I accept, is that the parties were living well above their means and he was playing a constant shell game of moving money around, pulling from various assets, running up credit cards and then paying them down, all to try to meet the significant financial needs of the parties.

[95] A lot of time was spent at trial on the Wife’s claim that the Husband has not fully accounted for the funds used. I do not accept the Wife’s submissions that anything nefarious, intended to defeat her equalization claim, has happened with the Tarion funds. I accept the Husband’s evidence that a significant stressor and contributing factor to the breakdown of the marriage was the financial stress and strain the parties were under by virtue of living beyond their means. I accept that he attempted to have these discussions with the Wife, but she refused to accept the reality of their finances and adjust spending accordingly. Her evidence at trial reflected this also. The limited bank statements before the court, and the claims made since for various expenses, gave a flavour for the spending patterns which exceeded income. The Wife did acknowledge that the parties frequently argued over money and differences of opinion as to what they could afford to spend. The Wife’s financial statement filed for trial shows a pattern of spending that far exceeds the income the Husband earned while working.

[96] The Wife must account for the $70,000 she removed from the joint account. Her financial statement indicates that she still had a balance of $55,000 in her personal account as of the time of trial. This suggests to me that none of the Tarion money withdrawn by the Wife was used for significant home repairs that benefit the parties jointly as joint owners of the home. The $70,000 will be shown as an asset for the Wife in the calculation of her net family property.

Tangerine Account:

[97] The Wife claims an unequal division of net family property on the basis that the Husband has either not disclosed or recklessly depleted the approximately $128,326 that was in the Tangerine savings account in his name as of January 2015.

[98] The Husband’s evidence is that these funds represented the net sale proceeds of a property that had been owned by the parties but sold. The net sale proceeds of $125,000 was deposited into this account, along with some Tarion monies.

[99] The Husband’s evidence, which I accept, is that the funds from his Tangerine account were used to finance family expenses, such that there was only approximately $10,000 remaining in the account at the time of separation. As indicated above, I accept that the parties were in a deficit position each month and had to draw down on assets to pay for their expenses. The Husband testified that he would transfer $1,000 bi-weekly from the Tangerine account into the parties’ joint account to cover shortfalls for payment of household and other family expenses. In addition, he would transfer lump sum amounts as needed or use the funds for payment of credit card debt. I accept that the parties’ level of spending caused savings to be depleted quickly, and that the amounts stated by the Husband are reflective of what he had on separation. I find that the Husband has disclosed all accounts that he had on separation and has not recklessly depleted his net family property.

Payments for the Home:

[100] The mortgage payment for the home was approximately $1,357 a month. The property taxes were approximately $515 per month. I have no evidence as to the home insurance cost. The total mortgage and taxes each month is $1,872. If home insurance is added, the parties would be paying in excess of $1,000 each monthly to maintain the capital costs of the home, without utilities. The evidence of the parties is that:

a. Initially when the parties separated, the Wife used the money in the joint Bay Credit Union account to pay the mortgage and taxes.

b. Once joint funds in the Bay Credit Union and TD accounts ran out in late 2016, the Husband occasionally put money into the accounts to assist with the mortgage payment and taxes, but he was not able to do so consistently.

c. The Wife was primarily responsible for ensuring the funds were in the account for the required mortgage and tax payments.

d. Even during the period of his court ordered obligations to pay the mortgage between January 2017 and October 2017, the Husband acknowledged he had difficulty meeting his obligation to contribute to half of the mortgage, although he did his best to do so as he could.

e. From October 2017 (and possibly earlier) the Husband did not contribute to the mortgage and taxes for the home. The Wife paid these expenses herself.

f. From April 1, 2018 to the present the Wife received $500 per month in spousal support, which, but for her need arising from paying the mortgage, she would not have received. The net, after-tax cost of this payment to the Husband (if he had deducted it) is approximately $300 per month, with the benefit to the Wife being $500.

[101] The Wife’s claims with respect to the payments she has made are not clear. She does not claim a specific amount for the payments made but does seek a finding of unconscionability on the basis of payments made by her. I was not given evidence as to the total amount of these payments over the duration of the separation.

[102] Complicating these issues further is the Husband’s claim for occupation rent. This is a claim to be considered by the court, particularly when the occupier spouse is seeking credit for monies paid relating to the matrimonial home during a period of exclusive possession.

[103] In his evidence at trial the Husband claimed that $1,500 per month is a reasonable amount on account of his one-half share of a reasonable rent. He has no evidence to support this, or to support that this would have been a reasonable rent throughout the period of the Wife’s occupation of the home. He states that he is paying $1,087 monthly rent for a small apartment. He feels that the amount claimed is reasonable for a home.

[104] In his written submissions, with no explanation, the Husband has adjusted his claim to $1,045 per month.

[105] Payments made by an occupier spouse may be set-off against an occupation rent claim, just as occupation rent can be claimed to set-off credits sought by an occupier spouse for payments made for a home during their period of occupation.

[106] In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] O.J. No. 2096, 54 O.R. (3d) 397 (Ont. C.A.), addt’l reasons at [2001] O.J. No. 4726, the Court of Appeal stated that the following factors should be taken into account in determining an occupational rent claim:

The timing of the claim

The duration of the occupancy;

The inability of the non-resident spouse to realize on his/her equity in the property;

Any reasonable credits to be set off against occupation rent; and

Any other competing claims in the litigation.

This is not an exclusive list of factors that a court may consider. Overall, the awarding of occupation rent is in the discretion of a trial judge in an effort to determine what would be reasonable and equitable in all of the circumstances of the case.

[107] The Husband pleaded a claim for occupation rent (phrased somewhat differently) in his Answer. There has been no delay in making the claim. The Wife’s occupancy has been lengthy, the Husband has been unable to realize on his equity in that time, and he has paid rent himself along with a child and spousal support obligation.

[108] Despite these circumstances I am not inclined to make an award of occupational rent, nor am I inclined to grant the Wife’s claim for unconscionability on the basis of the payments made by her for the home, for the following reasons:

a. There is no evidence of the market value of the rent for the home throughout the period of occupancy. While the adjusted amount claimed does not strike me as unreasonable for a home, I do not know this for certain.

b. While there is no evidence as to the current value of the home, market values have increased in Thunder Bay in the period of separation. The Husband himself takes the position that despite any deficiencies in the home, the value has increased. There appears to have been an advantage to the Husband’s equity position in delaying a disposition of the home, particularly given the surge in market values during the COVID-19 era.

c. The Husband recognized in his evidence the benefit of the children remaining in the matrimonial home for the period post-separation.

d. The Wife has been paying at least $1,900 a month for mortgage and taxes, and likely more once home insurance is factored in. One-half of this obligation would have been the Husband’s. This either equates to, or is slightly more than, the $1,045 per month claimed.

e. While the Husband has also paid $500 per month in spousal support to assist in the maintenance of the home pending trial, once he sorts out his tax issues, his after-tax cost is less than this. Based on the Wife’s financial statement, in the period from the date of separation to March 30, 2021, the mortgage was reduced by $44,680.71. The Husband, as joint owner, will receive one-half the benefit of this.

f. Overall, I find it would not be unconscionable, but rather I find that financial fairness is achieved by:

i. Not ordered a repayment by the Wife of spousal support paid on an interim basis;

ii. By not ordering occupation rent of $1,045 per month; and

iii. By not giving the Wife credit (except to the extent I have found it offsets the occupation rent claim) for the payments made by her with respect to the home she occupied.

All of these claims negate each other.

Ownership of the Home:

[109] The parties are joint owners of the matrimonial home. The Wife and children have continued to live in the home since separation. The Wife would like to remain there and wishes to have the home transferred into her name.

[110] The Wife relies on s. 9(1) of the Family Law Act, which gives the court the power to transfer the property of a spouse to the other if the recipient spouse is entitled to an equalization payment. I have determined that it is the Wife who owes the Husband an equalization payment.

[111] The Wife further relies on Dombrowski v. Dombrowski, 2021 ONSC 445, at para. 42 for the proposition that where one party is entitled to an equalization payment, they may seek to offset that entitlement against the other party’s share of the equity in a matrimonial home. This does not necessarily mean that a court should require a party to sell their interest in the home to the other spouse, offset by the equalization payment. In fact, Dombrowski specifically states that a court cannot require one party to sell their interest to the other. Nonetheless, the Wife does not have an equalization payment owed to her and the parties cannot agree on a value for a transfer of the Husband’s interest.

[112] The Wife provided evidence that an appraisal was performed of the home in December 2016. The appraisal took into consideration the numerous defects in the home and the fact that they had not yet been rectified. The value attributed to the home was $335,000.

[113] This is the value the Wife seeks to have attributed to the home, and for me to require the Husband to transfer his interest at that value. She argues that the Family Law Act, requires the value of assets to be determined as of the date of separation (October 3, 2016). Leaving aside my inability to require the Husband to transfer his interest in the circumstances of this case, the Wife’s argument ignores the fact that this is a jointly owned asset and the proper date for valuation is the date of transfer. This value is also significantly less than what the parties paid for the home, with the Wife acknowledging they negotiated a lesser price with the deficiencies already in mind.

[114] The parties agree that there remains outstanding work to be done for items for which Tarion has paid them. They are primarily aesthetic items, with the parties disagreeing as to the extent of these items.

[115] The Wife’s evidence is also that there are currently claims pending before Tarion for other more significant items that require repair, such as a couple of structural issues and some building code violations. Her evidence was that she expects Tarion to offer to either send a contractor to fix the problem or offer a payout so that the parties can hire their own contractor.

[116] The Husband takes the position that the matrimonial home is significantly undervalued at $335,000. He had an independent appraisal performed as of December 2019 that attributed a value of $425,000 to the home. The appraisal is qualified by a statement that the appraiser assumes the defects to the home have been repaired and the home remains in good repair. This is not the case. The appraisal further states that other comparable homes in the area have routinely realized a greater value on sale. The home is located in a desirable newer subdivision. The appraisal is now two years old, with a considerable market increase happening in the meantime. The parties have made improvements such as a finished basement, patio and grass in the yard since purchasing the home.

[117] This is a jointly owned home. The Husband’s position is that he wants the home sold in order to determine the fair market value. He has a right to seek a sale of jointly owned property, particularly in circumstances in which the parties cannot agree upon the value of the asset. The home must be sold, although I recognize that the Wife will need some time to complete the current Tarion warranty items she has submitted a claim for and to find suitable alternate accommodations for her and the four children. If other work is to be done to the home beyond that which the current Tarion claims will pay for, the parties must agree and share the costs equally.

[118] If the Wife does wish to remain in the home with the children, and can afford to do so now that she knows the outcome of this trial, I would encourage the parties to work together to arrive at a mutually agreeable value for the home, based on an independent appraisal in which the appraiser is fully aware of any defects or deficiencies in the home. While this is a preferable outcome given both parties’ acknowledgement that the children wish to remain in the home, if they cannot agree then as I have stated, the home must be sold, with sufficient time given to the Wife to find alternate accommodations for her and the children.

Orders:

[119] In light of the foregoing, it is ordered that:

a. A divorce order shall issue.

b. Child support arrears as of June 30, 2021 are fixed at nil.

c. The Husband shall pay to the Wife on account of retroactive child support for the period of October 13, 2016 to June 30, 2021 the sum of $2,380, which amount shall be set-off against the equalization payment owed from the Wife to the Husband.

d. If there are payments made by the Husband by virtue of the Family Responsibility Office garnishing his income or otherwise to FRO that have not been accounted for in my calculations of retroactive child support, a brief appointment shall be scheduled before me following the directions set out in paragraph 28(b) of these Reasons.

e. The Husband shall pay to the Wife any arrears of his obligation to contribute to the mortgage for the period of January 12, 2017 until October 19, 2017, which amount shall be set off against the equalization payment owing by the Wife. If the parties cannot agree as to what this amount is, they shall schedule an appearance before me and file such further evidence as is required to determine the issue as set out in paragraph 33 of these Reasons.

f. Commencing February 1, 2022, the Husband shall pay $350.00 per month on account of his contribution towards all s. 7 expenses for the children.

g. On or before June 1st of each year, commencing in 2021 the parties shall exchange their income tax returns and notices of assessment for the previous taxation year and shall adjust child support effective July 1st.

h. The parties shall also review the Husband’s contribution to s. 7 expenses annually, commencing July 1, 2022 and adjust his monthly contribution accordingly.

i. To facilitate this review, and in determining future monthly contributions by the Husband to the s. 7 expenses of the children, the parties shall consider the findings provided for in paragraphs 45, 51 and 57 of these reasons, and also:

i. The Wife shall provide the Husband with a detailed list of all s. 7 expenses anticipated for the upcoming year, along with verification of the amount of the expense and proof of necessity (i.e. prescriptions, doctor’s notes etc.).

ii. In calculating the Husband’s ongoing obligation towards s. 7 expenses, s. 7 of the Guidelines requires the Husband to be responsible for his proportionate share of medical expenses exceeding at least $100 annually.

iii. Any eligibility for applicable insurance, subsidies, benefits or income tax deductions or credits relating to the expense shall be taken into account.

iv. The Wife shall be responsible for increased co-pay costs over and above what the Superstore pharmacy would have charged.

v. Over the counter medications, vitamins, supplements and creams shall not be included in a determination of s. 7 expenses unless they are necessary and prescribed.

vi. The expenses incurred by the Wife shall be reasonable taking into consideration the means of the parties and necessary in relation to the best interests of the children.

vii. The parties shall contribute to these expenses proportionate to their income.

viii. Communication between the parties with respect to new expenses is preferable in an effort to avoid a subsequent dispute once the review occurs.

ix. In reviewing extraordinary extra-curricular activity expenses, winter and summer hockey registration fees at the current level shall be deemed reasonable and necessary for D.R., along with reasonable equipment costs.

x. All other extra-curricular activity costs for which the Wife seeks contribution from the Husband to be included in the monthly amount payable on an ongoing basis shall be discussed and agreed upon in advance, keeping in mind that it is reasonable for each child to participate in one reasonable activity at a time and for the parties to take advantage of any subsidies and programs available to reduce the cost.

j. The Husband shall pay to the Wife on account of retroactive s. 7 expenses for the period of October 2016 to June 2021 the sum of $22,467, which amount shall be set- off against the Wife’s equalization payment owing to the Husband.

k. The Husband has signed over the RESPs to the Wife. Each child’s portion of the RESPs shall be exhausted before a parent is required to contribute to his/her post- secondary education costs.

l. In determining the amount of a parent’s obligation for post-secondary education costs:

i. Based on their current incomes, and subject to a material change in circumstances, I find that a reasonable contribution by the parents is the amount that will otherwise be payable on account of table support in addition to tuition and books (unless these costs are covered by a scholarship or bursaries); and

ii. If a child has additional expenditures, particularly as a result of attending post-secondary education outside of Thunder Bay, the child will have to pay those costs through scholarships, bursaries, student loans and their own income.

m. Commencing February 1, 2022 and continuing on the 1st day of each month thereafter until either the transfer of the matrimonial home to the Wife or the closing of the sale of the home, the Husband shall pay spousal support to the Wife in the amount of $500.00 per month.

n. Once the home has either been transferred to the Wife or sold, there shall be no spousal support payable.

o. Paragraph 119(n) shall be subject to a review in the event of a material change in circumstances, including but not limited to a material change in child support payable.

p. There shall be no retroactive adjustment of spousal support and there are no arrears of spousal support as of June 30, 2021.

q. The Husband shall designate the Wife, as trustee for the children, as the irrevocable beneficiary of his life insurance policies available through employment or disability and his RRSPs, for so long as he has an obligation to support the children.

r. The amount of the Husband’s obligation to provide security for support through life insurance and his RRSPs shall be reviewed in the event of a material change in child support.

s. The Husband shall transfer ownership to the Wife of any privately owned life insurance policies he has that he no longer wishes to maintain, but she does. The Wife shall then have all rights of ownership, including the right to designate one or more beneficiaries.

t. If there are any cash surrender values associated with these policies, the Wife shall pay to the Husband an amount equal to one-half the value on the date of transfer.

u. The Husband shall maintain the Wife and the children as dependents for the purpose of his extended health care benefits through employment/disability for as long as he has an obligation to support them and they qualify pursuant to the terms of the plan.

v. Subject to the set-offs provided for herein, the Wife shall pay to the Husband the sum of $27,125 on account of an equalization of net family property. Any amount owing by the Wife after set-offs are applied shall be paid upon the transfer or sale of the matrimonial home.

w. If the parties are unable to agree on terms for the transfer of the matrimonial home to the Wife, including but not limited to the price at which she will acquire the Husband’s interest, the matrimonial home shall be listed for sale with a mutually agreeable broker and agent no later than April 1, 2022 and sold, with a closing date to occur no sooner than July 1, 2022 unless the parties agree otherwise.

x. If the parties are unable to agree upon any aspect of the sale of the home, they shall seek directions from the court.

y. Any legal aid liens or other encumbrances registered against title to the home shall be the responsibility of the party who incurred them. If there are insufficient funds to pay a party’s encumbrances and the other party’s share of the sale proceeds has to be used, then they shall have judgment for this amount.

z. Pending the sale of the matrimonial home the Wife shall pay all expenses associated with the home, including mortgage, taxes, insurance and utilities.

aa. The Wife shall use any funds she has received from Tarion for the claims made post- separation to repair the items for which the funds were advanced. If there are any remaining funds they shall either be used to complete other necessary repairs on the home or divided equally between the parties.

bb. The Wife shall return to the Husband his jewellery that was left in the matrimonial home.

cc. Upon the sale of the home, and subject to any other provision in this order, the net sale proceeds shall be divided equally between the parties.

dd. Upon the payment of the equalization payment owed by the Wife and upon the sale of the matrimonial home, neither party shall have any claim against the assets of the other and shall sign any releases reasonably required with respect to pensions or otherwise.

[120] Based on the positions taken by the parties and the results achieved at trial, there has been divided success and this is not an appropriate case for costs. If there are offers to settle that impact this assessment of costs, the parties shall schedule a ½ hour appointment before me to argue the issue, with the required Costs Outlines and Bill of Costs filed with the court and loaded into Caselines prior to the hearing.

[121] I may also be spoken to if there are any mathematical errors or additional terms required with respect to the sale of the home.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: February 2, 2022

COURT FILE NO.: FS-16-239-00

DATE: 2022-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

K.R,

Applicant

• and -

M.R.

Respondent

REASONS FOR JUDGMENT

Nieckarz J.

Released: February 2, 2022

/lvp