Court File and Parties

Court File No.: FS-18-6725 Date: 2023-03-31 Ontario Superior Court of Justice

Between: James McNally, Applicant And: Paris Modarres, Respondent

Counsel: Adrienne Lee and Katie Conway, for the Applicant Paris Modarres, on her own behalf

Heard: March 27, 28 and 29, 2023

Akazaki, J.

Introduction

[1] The Applicant father in this divorce proceeding is a family physician. Despite suffering from Parkinson’s disease and being 69 years old, he sees patients six days a week and has endured ongoing verbal and financial abuse from his 46-year-old wife, the Respondent mother. He has been an exemplar of devotion and stoicism. He continues to support a former spouse with monthly payments of $8,000. At one point, he had sunk about $1.5 million into a video game development company to keep alive the legacy of his late son from that earlier marriage, who died of cancer. He has been married to his current spouse for less than four years. During that time, they had a child. Their son, now six years old, has been diagnosed on the autism spectrum (severe, with speech delay).

[2] Their son is their pride and joy. That is about the only thing on which they can agree. The couple live separately and apart in the father’s penthouse apartment in downtown Toronto which is heavily mortgaged. The father is barely treading water, financially and emotionally. The mother argues with the father all the time about money. In partial denial of her son’s condition, she has refused to consent to applying for Ontario government funding to help with her son’s treatment and care, forcing the father to expend many tens of thousands of dollars a year that he cannot afford. She has also refused to consent to having their son assessed in order to enable him to qualify for a coveted spot on a special Grade 1 program offered by the Toronto District Public School Board. At the conclusion of trial, I ordered that the father can arrange for this assessment without the mother’s consent, because time was very much of the essence.

[3] At the opening of trial, the mother asked for an adjournment, in order to have time to retain and instruct the business valuator that her former lawyer had recommended last October. She asked for it, knowing that delaying a judgment against her on the decision-making part of the proceeding would effectively deny her son entry into the program. As I stated in my endorsement refusing the adjournment, the continuing record has been littered with requests for adjournments and no-shows by the mother in a desperate attempt to delay the resolution of the dispute.

[4] The mother’s selfish and abusive behaviour appears to be motivated by two things. First, she has figured out that as long as the law suit continues, she gets to live in the luxury condo apartment. Second, she believes she is more expert than the experts and harbors the delusion that her son will simply get better without recommended interventions. After I admonished her that the resolution of issues regarding the care of their son was more important than her need for a forensic valuation to support her property claim, she refused to attend the remainder of the trial. Her emails to the registrar while the trial proceeded were entered into evidence as lettered exhibits. The second and third days of trial went ahead, essentially as an uncontested trial. The evidence only proved what she knew or ought to have figured out, grosso modo: her husband is not made of money and he would not have to work so hard despite his age and condition, if there were any money. After the trial, she believed she could continue it as some kind of game of correspondence chess with the registrar. As one last indulgence, I directed her to provide her last word on the issues by 2:00 p.m. on March 31, 2023, and she failed to deliver anything.

Family Facts

Current Situation

[5] The parties were married on November 19, 2016. Their son was born in 2017. They separated, while living in the same apartment, on August 7, 2018. In her pleading, the mother demurred, saying that they had not separated. She later alleged a separation date of October 31, 2019. As confirmed during the trial, the choice of a later separation date was of no advantage to the mother because the father’s debts only increased during the interval and their assets remained static. In any event, since the mother did not testify to explain her later separation and valuation date, the only evidence of the separation date was to confirm the 2018 date.

[6] The mother is devoted to her son and does not work outside of caring for him. The son also has a nanny. The nanny is employed mainly to support the father. The son is a bundle of energy and, as children with autism do, is prone to take off and run randomly. The father is simply unable to keep up when that happens. The father looks after the mother and their son by paying for the nanny, paying for all of the mother’s expenses, and paying $3,000 per month in uncharacterized interim spousal support. This means that he pays income tax on the support payments, and she does not. The true value of the interim spousal support is about $4,125 a month, when grossed-up for income tax. She has had the use of several credit cards in the father’s name. She keeps racking up the charges and he keeps getting new ones, after the limits are blown. (He does not want to pay the credit card fines for the over-limit charges.) The autism support charges, including the nanny, amount to about $7,000 in monthly expenses. The father therefore pays about $25,000 per month on “alimony,” spousal support, the mother’s expenses, and care for the child, before paying a cent to himself and the upkeep of the apartment. He is the sole title holder of the apartment and the sole debtor on the mortgage. The mother has never paid anything toward the apartment. Had she paid anything, she did not enter any evidence to demonstrate her payment.

[7] In June 2020, the wife was charged with assaulting the father. He had to be seen at hospital for his injuries. He asked the police to drop the charges. Children’s Aid were briefly involved, because the hospital had to report it. Since this event occurred after the separation, it cannot be a ground of divorce. It is evidence contradicting the mother’s pleading that there was some hope of reconciliation.

Background and History

[8] The father is a business partner, through his professional corporation, in a family medicine clinic. The doctors are rostered, meaning he has 2,000 patients of his own subject to an arrangement whereby the team fills in for one another. He is on call twice a month. Dr. Aliya Raheem is the other partner. The clinic has three associates. They operate on a cost sharing. Everyone keeps their own billings. The associates submit 30% of their billings toward the costs of operation. There are five support personnel.

[9] The father works weekdays 8:30 a.m. to 5 p.m., and on Saturday from 9 a.m. to 2 p.m. Most Friday afternoons, he returns home after lunch to perform administrative work and to be around his son.

[10] The father was diagnosed with Parkinson’s in 2011. Dr. Raheem looks after his usual medical issues, and he is followed by a consulting neurologist. At age 70, later this year, he is subject to a practice review by the College of Physicians and Surgeons of Ontario (CPSO). Dr. Raheem is a faithful and sympathetic business partner. I have no doubt that she will help the father continue in the practice to help raise the child, for as long as the father is physically able.

[11] The father met the mother in 2013. She changed her surname to his after the court proceeding, within the last year. Their son was born in 2017. The father took a month off for paternity leave. He helped the mother look after the baby. The baby was breast-fed and bottle-fed from start. He helped with feeding and diaper changes. He enjoyed interacting with the baby. When he became a toddler, the father played puzzles with him and took him out for walks.

[12] In the fall of 2018, after the parents started living separately in the same apartment, their son was diagnosed as being on the autism spectrum. He was doing some repetitive behaviours like walking up and down the same staircase. He did not recognize his grandmother. They received a referral to a pediatric neurologist. They sought early treatment in order to improve the chances of better results. They enrolled their son in a private clinic called Integrated Services for Autism and Neurodevelopmental Disorders (ISAND). They provided one-on-one counselling and behaviour analysis sessions. The monthly cost of these interventions was between $6,000 and $7,000. There was no government funding at the time. Later, after the Ontario government started the Ontario Autism Program (OAP), they did not apply for subsidy because the mother refused to co-sign the application. The mother would not agree to obtaining the disability tax credit, either.

[13] In the proceeding, the father sought an order permitting application to the OAP. As there was no evidence from the Respondent, the father consented to an order that he pay 100% of all expenses under s. 7 of the Federal Child Support Guidelines (SOR/97-175) (CSG), and no rational reason to forego the funding, I will order that the father be allowed to make the application without the mother’s consent.

[14] It is still important to be treating the child because he is still non-verbal. He makes a lot of noise and makes his intentions known, but he does not speak. There is more to the mother’s interference with the son’s care than denial of funding for autism care. The son is due for vaccination boosters, and the mother is holding out. She read that the vaccine against Measles, Mumps, Rubella, and Varicella (MMRV, formerly MMR) caused autism.

[15] In 1998, British medical researcher Andrew Wakefield and his colleagues published an article in the Lancet, stating that the MMR vaccine predisposed subjects to behavioural conditions including autism. This paper received wide coverage in the popular media and resulted in a sharp global decline in vaccination rates. Wakefield was later found to have falsified data for personal gain and was struck off the United Kingdom’s register of doctors after being found guilty of serious professional misconduct. Despite the overwhelming global consensus of medical experts, conspiracy theorists from grass-roots anti-vaccination movements have clung on to Wakefield’s ideas and have endangered countless children to the continued spread of these preventable diseases.

[16] The Court of Appeal has definitively placed the onus on anti-vaccination parents to prove that widely accepted vaccines are contrary to a child’s best interests: J.N. v. C.G., 2023 ONCA 77, at paras. 38-46. Given that any evidence would be opposed by a consensus of medical professionals, I cannot foresee a court giving effect to the dissenting parent’s opinion regarding a widely accepted vaccine. The child here is due for various booster vaccinations. The mother’s refusal to consent to these important public health injections cannot be allowed to endanger the child.

[17] Despite the irrational conduct of the mother stemming from a denial of the son’s condition, the father has amended his request for control over decision-making and has sought a multidirectional order to have the parents consult with the child’s various professional consultants before the father having the final say. In the absence of evidence contrary, and on the basis of her conduct during the trial, the evidence showed that the mother clearly is incapable of making obvious and sensible decisions for the child as set out in clause 16(3)(h) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). I would have been prepared to grant a sole custody order with regard to decision-making, were it not for the status of the pleadings and the fact that entertaining an in-trial motion to amend could give fodder to the mother to reprise her motion for adjournment. Accordingly, an order will issue for a multi-directional algorithm for decision-making, in the form submitted by the father’s counsel, with the father having the final say after consultations with relevant professionals.

[18] The child is now attending senior kindergarten at Spruce Court School on a full-time basis. Previously, he had a lot of trouble over lunch such as removing food from other children’s plates. The mother was concerned about keeping their son there in the afternoons. The son has gone back to full time school until 3 p.m. The program is a diagnostic kindergarten program with one teacher and an assistant for six children. The son is due to go into a Grade 1 equivalent program. He has yet to be evaluated by the school psychologist, because the mother has refused her consent. She feels that an evaluation might “label” her child with a disability.

[19] The father has hired a nanny for their son. She helps out during the week and comes in for the occasional morning and overnight and Saturday. Her annual salary is $35,000 to $40,000 and is paid by Applicant. This does not include reimbursement for food and things she spends. The nanny does “pretty much everything” and is like a surrogate mother. She also performs light housekeeping and cooks on occasion. The father does not trust himself to be with the child outside, because the child is non-verbal and physically able. The nanny is an extra person to run after him. On the second day of trial, the father had arranged for the nanny to help out in the morning in order to allow the mother to come to court on time. The mother called off the nanny’s morning attendance and refused to take the child to school, citing undefined illness.

[20] The child likes spending time with his father. He gives his father lots of kisses and plays with his facial “whiskers.” The court heard from the father’s business partner and family physician. She testified that the father’s Parkinson’s was stable and saw no reason to consider that it would affect his life expectancy or cognitive abilities. The only concern is that the child likes to run around. The father needs a support person like the nanny to be with him when outside. She corroborated the father’s evidence about the verbal abuse from the mother. At one point, she was on a message feed that the mother had initiated, and the mother would complain and write abusive texts full of cursing. She blocked the messages because she did not have the time or the interest to continue reading them.

[21] The father based his date of Separation as August 12, 2018, on his receipt of a letter from the mother’s lawyer. The mother had already declared that she hated him and did not want sex or physical contact. He started staying away after the mother pushed him out, and he was not sleeping over. The mother has allowed him to be at the condo during the last two months, because his absence was upsetting their son. He tried to resolve things, but the mother wanted to continue with the court proceeding. It seemed like she was now divorcing him.

[22] The father has, and even now, provided the mother the use of his Visa credit card. He stopped allowing her a physical card, because she was trying to withdraw cash in thousand-dollar amounts from automated tellers. Those withdrawals carried a 26% interest rate. He gave her a picture of the back and front of the card, so she can use it for online purchases, including meals from Uber Eats and her mobile phone plan. He pays for all of the mortgage and condo upkeep fees.

[23] In June 2020, there was an incident when he was sleeping a separate bedroom. She started yelling at him, that he should not be there. She struck him. He later went to Toronto General Hospital. The hospital called Toronto Children’s Aid because there was a child in the home. The mother was charged with assault. He spoke with police and asked them to drop the charges, because there was no benefit to them or to the child, who needs his mother. In addition to the assault, the mother continues to berate him verbally, usually over something that has to do with money.

Family Finances and Property

[24] The matrimonial home is a penthouse suite at 388 Yonge Street, Toronto. It is on the 79th floor. It has 2.5 bedrooms, 2 bathrooms, and overall covers 1450 square feet. There is a two-car garage in the parkade of the condo. He does not own a car, so he uses the space for storage. He purchased the unit for $1,291,062, on June 2, 2015. The mortgage was taken out for $1,147,000. He bought it. He borrowed from his ex-wife for the down payment, by cashing in a joint RSP of $126,935. He paid the tax on the withdrawal. The father hired an appraiser and a realtor to value the condo. However, they could not provide a valuation because the mother refused to allow them to inspect it. The bank would perform an appraisal on pictures alone, but only for lending purposes. (He could have obtained and submitted it in order to lower the value, but he did not. This was one of several instances in which he refused to take or gain any advantage in the litigation.) The mother did not appreciate that the father wanted to appraise the home in order to provide a fair market valuation. It was to her advantage that he be allowed to do this. As with many issues in the proceeding, she evidently felt she had outwitted him.

[25] In lieu of a professional appraisal, the father had to submit various title abstracts of various transactions of similar units in the building. The closest in timing with the date of separation and the amenities of the unit was one that sold for $1.4 million. I accept the value of the father’s condo unit. There was no evidence tendered by the mother to contradict it.

[26] The court heard and received extensive evidence about Longbow Digital Arts, the video game company started by the father’s adult sons Seamus and Philippe. While the family were living in Manitoulin, Seamus had developed a game that he sold as shareware. Shareware is a form of software marketing that allows the purchaser a time-limited free trial before purchase. The father’s ex-wife Wendy was also a shareholder. All four worked in promoting the business, but Seamus was the programmer. Seamus had Hodgkins Lymphoma, an aggressive form of cancer. He passed away in 2000. That took the head off the dragon. The company could not survive. They kept developing strategy games, from project to project. Seamus’ passing devastated the family. They moved down to Toronto, in order to hire people to develop games. It was the start of the end of his first marriage.

[27] In 2004-2010, Longbow started to cost more to develop anything new. They tried to stay on the cutting edge of use of terrain and other use of computer graphics. They went over budget and over time. He made up for losses by diverting funds from his medical practice. He just lent the money. In 2010-2016, the shareholdings changed so that he took over all the shares of Longbow. Phillipe wanted out. The shares were considered to have no value. In exchange for taking over the debt, he got the shares. The debt was mostly owed to him. The banks had lines of credit in the name of Longbow. The father’s brother and the lead programmer lent money to Longbow. The father is still paying off those debts.

[28] During the 2016-2018 period, Longbow was still developing. It came out with a game called Golum. It did not sell. The market was already so saturated. The company had six full-time employees at that time. In 2020, it stopped developing games. The father did not want to take the risks required to fund the next game. He needed to focus on the needs of his child. On the advice of his accountant, he amalgamated Longbow into his medical corporation, in order to make use of some of the losses as tax deductions. The unincorporated portion of Longbow was kept open to service debt.

[29] As of date of marriage, Longbow had a lot of debt, and now not any value. He can’t remember telling his new wife much about Longbow except in general terms.

[30] The father had his medical professional corporation since about 2007. He set it up when the government allowed doctors to split income. That policy ended about five years ago. During that period, he split his income with the mother. She did not perform any services for the corporation. As far as he knows, the mother has not applied for any jobs or sought to upgrade her education since separation. He believes she has a finance degree from Northern Kentucky University. Money has been the main area of contention between them.

[31] The court heard extensive evidence, both from the father and from a chartered business valuator, about the finances of the professional corporation and the gaming software company. In an effort to keep his legacy alive, the father diverted about $1.5 million to pay for the salaries of the coders and designers. It eventually failed because of the direction of the video game market, leaving a trail of debt. For tax reasons, he amalgamated the gaming company with his professional corporation. The loan has been written off for valuation purposes because the software company had no means to pay it. The valuator gave evidence that the value of the amalgamated company is less than $50,000, stated as $47,769 as of August 7, 2018, consisting mostly of the value of tax losses.

[32] Through the father’s tabulation of expenses charged by the mother in addition to the regular $1,500 bi-weekly payments ($3,000 monthly), the gross-up for tax consequences calculated by the valuator, the evidence support his position that he has overpaid his Spousal Support Advisory Guidelines (SSAG) obligation by a total of $72,716. For this reason, there is no interim support owed to the mother.

[33] The equity in home is about $500,000. However, after all the debts against his assets are factored, the presumptive equalization figure for the parties’ net family property came down to $141,985. The father has sought relief from paying equalization, pursuant to subsection 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) for grounds which I will discuss in the legal analysis section.

[34] The valuator calculated the father’s annual income for support purposes as $281,844, consisting of dividends from the medical professional corporation and some personal-use elements of business expenses. This resulted in a monthly support calculation under the CSG of $2,249, and a mid-range monthly spousal support amount under the SSAG of $2,132. Counsel advised the court that the father felt there was no point in seeking a lower amount, since it would only affect the child. The SSAG also set a range of between 4 and 17 years for the duration of support. The father proposes that the spousal support should end on August 31, 2026, as being eight years of support.

Law and Analysis

[35] Since the mother declined to submit any evidence at trial, most of the remedies are mechanical and do not require much if any legal analysis. Nevertheless, it is important to keep an eye on the priority of the child’s best interests.

[36] I am satisfied that the parties have lived separate and apart for over a year without any possibility of reconciliation. In the circumstances, I am also satisfied that the mother has treated the father with mental cruelty so as to render intolerable the continued cohabitation of the spouses. The father will be looking after the child’s financial needs. A divorce order shall issue.

[37] The parenting arrangements proposed by the father have not been contested and therefore an order will go in accordance with them. Similarly, the mother did not contest the decision-making authority through a multi-directional algorithm, including the final say to be with the father. She hinted that she had something to say about this, but she absented herself from the trial.

[38] Child support is also not in issue. The father is content to have the child reside principally with the mother, and the CSG payments have been calculated as discussed above. The parenting schedule he proposed is reasonable.

[39] Division of property is not in issue. The only real property is the matrimonial home. Title to it is held in the name of the father. Subject to my comments related to the net family property, s. 19 of the FLA dictates that the mother’s possessory interest in it ends when they cease to be spouses. They will cease to be spouses when the divorce order issues pursuant to the direction in this judgment. The matrimonial home will cease to have that designation as of the date of this order. Its only significance is its value for the purpose of calculating the value of the father’s net family property.

[40] The only issues that require judicial analysis are equalization of net family property and spousal support. In accordance with the rule adopted in Greenglass v. Greenglass, 2010 ONCA 675, at paras. 40-44, I will address the property issue first because it has an impact on the issue of the mother’s future self-sufficiency.

[41] The father’s counsel submitted that there should be no equalization payment owed by the father to the mother because it would be unconscionable to award it, under subsection 5(6) of the FLA. He relies principally on clauses (e), (f), and (h) of that provision. Clause (e) applies to cohabitation of less than five years and the equalization would be disproportionately large. Clause (f) applies to situations where one party has incurred a disproportionate share of the liability and expenses related to the net family property. Clause (h) is an omnibus clause regarding any other circumstance related to “the acquisition, disposition, preservation, maintenance or improvement of property.”

[42] In the alternative, the father’s counsel states that, to the extent the court orders any equalization of net family property, the amount should be subject to offset by the overpayment of spousal support. He relies on M.B. v. S.B.B., 2018 ONSC 4893, at 356-57, including the case law cited therein. The Courts of Justice Act, R.S.O. 1990, c. C.43, subsection 111(2), has been interpreted to include equitable set-off, thus expanding the availability of the remedy beyond contractual debts arising from the same transaction. See Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd.. In the family law context, the court in McGee (Irwin) v. Irwin, at paras. 12-13, set off support against an unrelated obligation between the parties. The M.B. decision in fact recognized the availability of like-for-like set-off of child support overpayments against ongoing obligations. The only set-off that was not acceptable, except in rare cases, was to reduce a child support claim by an amount owed in an adult claim. Indeed, in G. (J.D.) v. G (S.L.), 2017 MBCA 117, at para. 83, the Manitoba Court of Appeal approved the equitable set-off of a spousal support obligation against a costs obligation. It is clear that the authority to set-off competing obligations is a flexible equitable power to ensure fairness between the parties.

[43] Both the principal argument depends on the idea that it would be unconscionable for the mother to receive an equalization payment, especially since the difference in net family property is valued based almost entirely on the matrimonial home. From his perspective, the equity in the condo is the only substantial asset that stands as security for the future extraordinary expenses of looking after the son. The issue of equitable set-off does not depend on unconscionability, but a lower standard of fairness.

[44] The equalization provision is a feature of modern family law reform intended to resolve, inter alia, historical exclusion of women from property rights and the undervaluing of their contribution to the household economy in “traditional” marriages. Subsection 5(7) is a legislated explanatory note to this effect. The statutory wording, “unconscionable,” demands a high threshold beyond mere unfairness. In Serra v. Serra, 2009 ONCA 105, at para. 47, the Court of Appeal stated: “To cross the threshold, an equal division of net family properties in the circumstances must ‘shock the conscience of the court.’” The courts have considered countless instances where one party has brought the money into the marriage to buy the matrimonial home and the unfairness of equal division did not meet the threshold. See, e.g., Heal v. Heal, [1998] O.J. No. 4828, 82 O.T.C. 188, 43 R.F.L. (4th) 88| 83 A.C.W.S. (3d) 990, at paras. 24-27. That said, the provision can support a reduction of 100% of the difference between the parties’ valuation of net assets: Czieslik v. Ayuso, 2007 ONCA 305, at para. 25. Ordinarily, the Serra decision drives an examination of the result. However, even if the result may not be shocking, the provision can be applicable if other circumstances combine with the result in order to make the equalization award unconscionable: Lo v. Lo, 2011 ONSC 7663, at para. 236.

[45] Close consideration of the economics of the parties’ relationship shows features of the mother’s role in a quasi-traditional marriage. The mother, by looking after the son, did allow the father to earn income as a doctor and therefore contribute to the family finances as described in subsection 5(7). The extreme nature of childcare expenses may mask this factor, but it does not eliminate the mother’s role. I am also unable to rely on the conduct of the mother, including her role as the instigator of conflict and chaos, since it is not related to the acquisition or upkeep of the property. The fact of the short marriage less than five years is not sufficient, of itself, to warrant the reduction of the equalization payment.

[46] The fact that the mother caused the family property to be lessened by refusing to apply for government support is a cloud hanging over the case. Since it is unclear what amount that government support would or could have been, it is hard to apply as a kind of counterweight to her entitlement to equalization. Moreover, all it has done are (a) to deprive her and her son and (b) to lessen the equalization to what it is. I am very concerned that the father’s limited means to support the child’s large future care needs not be eroded by potential dissipation by the mother. The mother’s decisions not to permit applications for government funding and her misuse of the father’s credit card facilities provided ample evidence supporting these concerns.

[47] I am unable to conclude that the mother’s entitlement to an equalization payment can be reduced or eliminated by operation of subsection 5(6) of the FLA. To do so would deprive her of the benefit of hard-won family law reform championed by the women’s movement in the 20th century. That does not mean that the equalization payment leads to an immediate lump sum payment. Subsection 7(2) recognizes the status of the equalization as a personal right and not a property right, meaning that it represents an in personam chose in action and not an in rem right. Equalization is therefore not free-standing and is subject to offset if there are contrary obligations, such as an award of costs. This means that the mother obtains the benefit of the equalization even if she may not receive it as an immediate payment into her bank account.

[48] The alternative position taken by the father does not have such a high impediment or legal threshold. The father has overpaid spousal support. It can be used to offset equalization. The equalization payment should therefore be reduced to $69,242. The mother still receives the value of the equalization. The fact that she must use it to discharge her costs liability to the father does not negate the fact that she obtains a benefit.

[49] Following the SSAG, the mother has a presumptive entitlement to spousal support calculated in the monthly amount of $2,132. I agree that the termination date of August 31, 2026, would likely provide adequate time for the mother to achieve self-sufficiency based on this rate of support alone, were it not for the entitlement to the equalization payment. The father has undertaken to pay for all s. 7 expenses in perpetuity, so any childcare expenses incurred by the mother to take on employment will present no impediment. The SSAG is not a statutory requirement, unlike the CSG table. I am also not bound by the father’s proposal to terminate the support on August 31, 2026. Under s. 15.2 of the Divorce Act, I am to consider various factors including the means of each spouse.

[50] I have no trouble finding that, despite his relatively high current income, the father’s means are rather modest if not barely surviving. During his evidence, I heard him say that his retirement if he were to stop working would likely be to live out in the street. The mother is a relatively younger woman and has the physical and mental agility to work and support herself. The Court of Appeal in Greenglass, at para 41, applied s. 15.2 to include the parties’ means, including capital assets. Given that the father has pledged all of his net family property toward the s. 7 expenses going forward, it seems only fair that the mother be obligated similarly to be required to devote her $69,242 entitlement to the child’s expenses.

[51] The priority of child support over spousal support under s. 15.3 of the Divorce Act, includes the power to reduce spousal support to nil in the interest of protecting the interests of the child. In fact, subsection 15.3(2) contemplates a situation where “the court is unable to make a spousal support order” to give effect to the priority. In Brown v. Brown, [2004] O.J. No. 57, 25 R.F.L. (5th) 291, at paras. 71-77, the court ordered that the equalization payment be held by the payor in trust, as security for future child support payable by the recipient of the equalization. This was not a priority of child support over spousal support under s. 15.3, but rather a form of provisional equitable set-off that prioritized child support over a right to an equalization payment. Thus, if the way in which I have structured the remedies available to the mother proves to have been incorrect in law, I would reduce the spousal support to nil in order to ensure that the child’s s. 7 expenses can be paid.

[52] In the circumstance of this case, where the court’s first obligation is to the support and care of the child, the court is reluctant to deny a characterization of payments to the mother as spousal support, because of the income tax consequence to the father. Such a consequence reduces the father’s means to continue what he has dutifully done with little thanks from the mother. I therefore order that the father pay the monthly spousal support obligation of $2,132 by reducing the debt arising from the cost award in this case by exactly the same amount, until August 31, 2026. To be clear: he is paying the support by reducing the mother’s costs obligation.

[53] Although the quantum of costs remains to be determined, I cannot imagine that the litigation ordeal that the mother has put him through will result in a costs award that is less the present value of his support obligations. The entitlement is a present one under s. 128 of the Courts of Justice Act, even if the quantum has not yet been fixed or assessed. Although the costs cannot be awarded until I receive a submission from the mother on the subject, I do have the power to suspend the support order in lock step with the contingent costs obligation, especially in order to give effect to the priority of child support. If the amount of the payments by offset of costs awarded in this case eliminates the offset before August 31, 2026, the balance of the spousal support instalments of $2,132 shall be reduced to nil in order to facilitate the father’s s. 7 obligations. The receipt of the benefit of $2,132 to offset the costs debt will be taxable in the hands of the mother. The father has agreed to have the amount indexed and adjusted annually, as required.

[54] The mother’s $69,242 net family property equalization is also subject to set-off by costs. The amount of $9,546 shall immediately be set off against the costs awarded in this case, so that the balance of $59,696 can be paid out in instalments. The balance of $59,696, shall be paid in equal instalments of $2,132 per month (subject to indexing), pursuant to clause 9(1)(c) of the FLA, until the $59,696 amount is eliminated. That statutory provision is usually invoked to address the need to “avoid hardship.” It does not state whose hardship can trigger it. I do not believe it matters, because the hardship is suffered by the father as he struggles to fund the expenses needed by the child. The statutory provisions in family law, both federally and provincially, is intended to shield children from the hardship to be endured by the parents when the economic union is dissolved.

[55] The remedy I have crafted is intended to prioritize child support under s. 15.3 of the Divorce Act, through the use of the tools available under statute and common law. It is only by the nature of the 1867 Canadian Constitution that the federal government could not include property equalization in that section along side spousal support. The Fathers of Confederation, in their wisdom, made property and civil rights the exclusive bailiwick of the provinces. (This problem looks like a project for the Uniform Law Conference of Canada.) While the mother will receive payments in the same amount as her spousal support, she will be receiving instalments of her net family equalization. The income tax consequences arising from the offset of costs and spousal support are the same as in the usual disposition. Fortunately, Canadian tax law imputes income and expenses through their economic effects even if there is no actual transfer of funds.

Conclusion

[56] In accordance with the reasons provided above, the father will be entitled to an order in the form attached to these reasons for judgment, subject to the insertion of a costs award and to any formal alteration required to give effect to the order consistent with these reasons. Formal approval of the draft order, once finalized by the father’s lawyers, is hereby dispensed with.

[57] I have no confidence that the parties will be able to settle on the issue of costs. The father has been wholly successful in the application, in that he came to court to protect his son and conceded all of his legal obligations to the mother. The mother has caused this litigation to be taken to trial needlessly. I can say that without reservation because she did not even enter a case responding to the application.

[58] Under rule 24, the father is presumed to be entitled to costs, and that is sufficient authority to create a contingent right under the Courts of Justice Act, as I described above. The mother is entitled to make a submission about what she believes would be an appropriate disposition of costs. Accordingly, the parties will have until April 10, 2023, to deliver their submissions of no longer than two pages regarding costs, including a bill of costs. Thereafter, each party shall have until April 20, 2023, to respond to the other party’s submissions and bill of costs, with responding submission of no longer than two pages.

Akazaki, J. Released: March 31, 2023