Court File and Parties
COURT FILE NO.: FS-20-17142 DATE: 2023-05-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Elena Frenkel Applicant
– and –
Vsevold Frenkel Respondent
COUNSEL: Elliot Berlin, for the applicant In Person
HEARD: March 6th, 7th, 8th, 9th, 10th, 15th, 16th, 17th and 28th, 2023
REASONS FOR DECISION
M. Kraft, J.
Overview
1This was an eight-day trial where the central issue was the credibility of the witnesses involved and whether the applicant, Elena Frenkel (“Elena”), or the respondent, Vsevold Frenkel (“Seva”), stole about $405,000 of combined cash and precious metals from their apartment and the resulting impact that had on the equalization payment and the division of the parties’ net family property. Retroactive and prospective child support, income imputation, and spousal support were also issues at trial.
Issues to be Determined
2The issues for me to decide are,
a. Whether Seva or Elena took the cash and precious metals from the apartment?
b. Which party owes the other an equalization payment and what is the post-separation adjustment to be made considering the answer to a. above?
c. What is Seva’s income for child support purposes?
d. What amount of child support does Seva owe Elena for the parties’ two children, retroactively and going forward?
e. Does Seva have entitlement to spousal support and if so, in what quantum and for what duration?
Credibility
3Each party claims that the other is lying, and that the other has stolen the cash and precious metals from the safes in the apartment. Thus, my findings on these factual issues before the Court will largely turn on an assessment of their respective credibility.
The Law
4A trier of fact is entitled to accept all, some or none of a witness’s testimony: R. v. Aristor, 2022 ONCA 719, at para. 24; R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 88.
5One of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness’ oral testimony, but also from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions: R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536 (“R. v. M”), at paras. 12-14.
6That said, inconsistencies vary in their nature and importance. Some inconsistencies may, on closer examination, not materially impair a witness’ credibility or reliability. In other cases, however, an inconsistency on a matter central to the litigation, or a series of inconsistencies even on apparently minor issues, may call into serious question the credibility or reliability of a witness’ testimony. These concerns are much more serious if a witness is found to have lied under oath, or to have relied on false documents, which may well cause the trier of fact to question or reject the entirety of a witness’ testimony.
7A trial judge is not required to review and resolve every inconsistency in a witness’ evidence, nor to respond to every argument advanced by counsel. That said, a trial judge should address and explain how they resolved major inconsistencies in the evidence of material witnesses: R. v. M, at para. 14. See also R. v. Williams, 2018 ONCA 138, at para. 33.
8A trial judge is not required to summarize specific findings on credibility by issuing a general statement as to “overall” credibility. It is enough that a trial judge has demonstrated a recognition, where applicable, that the witness’ credibility was a live issue: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para 65.
9The applicable standard of proof, as in all civil cases, is proof on a balance of probabilities: F.H. v McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para 48. I must scrutinize the relevant evidence with care to determine whether it is more likely than not that Elena or Seva took the cash and precious metals from the three safes in the apartment.
10It is open for me, as the trial judge, to accept parts of a witness’ testimony as credible and not accept other parts of a witness’s testimony. I find that both Elena and Seva were not credible in terms of some of his/her evidence during this trial. However, where I have extrinsic evidence on which to rely to support some of a party’s testimony, in considering the totality of the evidence, there are parts of each of their testimony that I do find credible.
11Where I accept one witness’ evidence over another, I have identified why.
Overview of Facts
12Elena and Seva married in Moscow on July 27, 1995. They have two children of the marriage, D., age 23 and E., age 19.
13By the time of trial, D. had obtained an undergraduate degree from the University of Toronto and is currently enrolled in a database engineering course. E. is completing her second year of university at the University of Toronto.
14In or about 1995, Seva relocated to Canada and about a year later married Elena. Seva sponsored Elena to come to Canada as his wife.
15Elena worked full-time during the marriage as an information technology and database management consultant and billed her clients through a consulting company, Effective Technologies & Ideas Inc. (“Effective”), of which both parties were owners.
16In 1999 and 2000, Seva was employed as a data base administrator and earned between $62,000 and $70,000 a year.
17On November 3, 2009, she and Seva incorporated Effective together online, and they were both listed as officers and directors.
18For over 20 years, Elena worked in technology support as a database administrator, obtaining consulting contracts and completing the work necessary to fulfill these contracts for clients such as RBC and BMO.
19Seva did not complete any consulting work for the company or generate any business for it. Seva did take care of the administrative, bookkeeping and tax filing work for Effective. Seva also researched investments and managed the family’s finances. He was otherwise not employed during the marriage.
20The parties separated on May 22, 2020, as a result of an altercation that resulted in Seva being charged criminally on May 23, 2020, for assaulting Elena, uttering death threats to Elena, having possession of prohibited firearms without a licence, and careless storage of firearms. Seva had a firearms possession and acquisition licence (“PAL”) and, as a result, the charges related to the weapons and careless storage of firearms were dismissed. Subsequently, on October 22, 2021, the charges related to assault and domestic violence were withdrawn.
21At the time of separation, the parties resided in a two-bedroom, rented apartment located at 35 Canyon Avenue, Apartment #1603 in North York.
22Elena alleges that she suffered family violence at the hands of Seva by his financial control and emotional abuse throughout the marriage. This is denied by Seva.
23During the marriage, Seva occupied one bedroom in the apartment and Elena and the two children occupied the principal bedroom, with the children sleeping in a bunk bed and Elena sleeping on a sofa bed. The family shared one bathroom. It is agreed that in his bedroom, Seva had a large safe in which he kept cash and precious metals, mostly silver and some platinum and gold. In addition, Seva kept firearms and ammunition in his bedroom, for which he had a valid PAL licence.
24It is agreed that Seva is someone who believes there could be an economic collapse and that he has lived his life planning for such disaster, including purchasing canned food and excessive amounts of frozen food. This is also the reason Seva has safety equipment, weapons, ammunition and converted the family income into cash and precious metals.
25It is not disputed that in addition to the main safe kept in Seva’s bedroom, there were two smaller safes in the parties’ apartment, both of which were nailed to the walls inside two separate closets, one closet in the principal bedroom and one closet in the hallway. Each party claims the other removed these two safes from the walls of the closets. There was no evidence led at trial as to what exactly was in each of the two smaller safes. Seva testified that precious metals and cash were in all the safes. Elena did not testify about the contents of the two smaller safes.
26Eight days after the separation, on May 30, 2020, Elena and the two children moved to a new rented condominium.
27Seva returned to the matrimonial rented apartment on June 3, 2020, after having been held in custody for approximately 6 days.1
Elena’s Position at Trial
28According to Elena, Seva stole all the family’s precious metals and cash just prior to the date of separation, other than (a) $30,000 cash he gave her prior to the May 22, 2020, incident and (b) $70,000 of silver Seva had given a family friend, Stiven (“Slava”) Wolf, for safekeeping, which was later returned to her by Mr. Wolf. Elena acknowledges that she owes Seva a small equalization payment but submits that after the post-separation adjustments are calculated and Seva pays her 50% of the cash and precious metals he stole, Seva will owe her $129,790.25. Elena called the parties’ young adult daughter, E., as a witness at trial.
Seva’s Position at Trial
29Seva’s narrative at trial was that this is a case of Elena being blinded by jealousy and greed. He submits that in April 2020, Elena found Seva in the parking garage in the parties’ minivan with a woman and became convinced he was having an affair. As a result, Seva argues that Elena concocted a story that Seva would abandon the family and told the children about the affair. Seva testified that he told Elena the woman in the van was Veronica Bak. He admits to having made threats to both Elena and E. that he would leave them with nothing if Elena pursued the divorce and E. supported her mother. Seva swears he never meant what he said.
30Seva’s position is that Elena stole the cash and precious metals from the apartment, from the safe in his bedroom and then used a crowbar to forcibly remove the two safes affixed to the walls inside two cupboards while he was in custody. He submits that Elena had a master plan to fabricate the assault allegation to ensure his arrest, which she did on May 22, 2020, so that she could orchestrate her move with the children into a new condominium with the stolen cash and precious metals.
31The determination of which party retained the cash and precious metals will significantly impact the post-separation adjustments once the equalization of the parties’ net family property is calculated.
Issue One: Did Seva or Elena take the cash and precious metals from the apartment?
32Each party has the burden of proving on a balance of probabilities that the other stole the cash and precious metals from the apartment.
33Elena took different positions during this matter as to how much cash existed in the safe at the time of separation. During her evidence in chief, Elena testified that Seva had $200,000 in cash at the time of separation in a safe in the apartment. Yet, in Elena’s sworn financial statement, dated February 24, 2023, and in her net family property (“NFP”) statement, Elena deposed that there was $32,000 of cash in the safe, over and above the $30,000 Seva gave her prior to separation, for a total of $62,000 of cash.
34Seva claims that the total amount of cash he had in the safe was about $90,000, and he had given Elena $30,000 prior to separation. Accordingly, Seva believes that Elena stole $60,000 of cash.
35Seva values the gold, platinum and silver as being worth $314,945.25 on the valuation date (“V-date”). Seva claims that the precious metals were kept in the safe in his bedroom and in the other two small safes in the apartment. Elena accepts the value of the precious metals put forward by Seva and uses this figure both in her sworn financial statement and her NFP statement. Elena testified in chief that she is not able to verify the quantity or value of the precious metals, but she did not suggest another value for the precious metals. In cross-examination, Elena admits that she was given copies by Seva of receipts for every line item of the family’s precious metals that added up to $314,945.25. I find that the best evidence before the court is that the value of the family’s precious metals as at the date of separation was $314,945.25.
36I reject Elena’s testimony that there was $200,000 in cash in the safes at the time of separation. There is no evidence on the record to support this. However, both parties’ sworn financial statements, filed in this proceeding, refer to there being roughly $90-92,000 of cash in the apartment at the time of separation. Accordingly, I am persuaded that the total combined value of the cash and precious metals on the date of separation was $404,945.25, comprised of $90,000 of cash and $314,945.25 in precious metals. It is agreed that of the $90,000 cash, Seva gave Elena $30,000 just prior to separation.
37The parties also owned several share certificates primarily in resource companies and precious metal companies on the date of separation. After the separation, the parties reached an agreement and equally divided their shareholdings such that they each ended up with $125,000 in share certificates. The family did not have any bank debt or credit card debt on the date of separation.
38To determine which of Elena or Seva took the missing family assets, the events leading up to the separation are highly relevant, and an assessment of each party’s credibility is necessary.
The Parking Garage Incident in April 2020 and the events through to May 22, 2020:
39Elena testified that at the end of April 2020, Seva left the apartment and told her he was going for a walk with his friend, Slava Wolf. Elena testified that she was suspicious as to where Seva was going because he took his car keys with him, he had spent a long time in the shower, he left the apartment with wet hair, and it was cold out. Elena decided to follow Seva to the parking garage and saw him lying inside the back of the minivan with a woman. Elena testified that she knocked on the window and asked Seva to come out of the car. The woman covered her face and Elena could not see or identify her. Seva refused to come out of the car and jumped into the driver seat and started the engine. Elena then stood in front of the car and asked him to explain, Seva pressed on the gas pedal, and she moved out of the way, scared he would run her over. It is not disputed that later, when he returned to the apartment, Seva explained to Elena that his friend, Veronica Bak, had come to meet him in the garage because he had agreed to help her move a freezer to her apartment. Elena did not believe Seva. Seva showed Elena an invoice for the freezer he allegedly bought Veronica. Elena still did not believe Seva. Elena testified that this parking garage incident was the final impetus for her decision to end the marriage and that she had been unhappy in her marriage for five to six years prior to this.
40After this incident, Elena asked Lyudmyla Milavanova whether she was the woman in the minivan with Seva. Ms. Milavanova was a family friend who lived in the same apartment building as the parties during the marriage. Ms. Milavanova testified at trial as a witness for Seva. She confirmed that when Elena had asked her if she was having an affair with Seva, she denied any such affair with Seva, and stated that she is married.
41During his examination in chief, Seva testified that Veronica Bak appears to be at the centre of the marriage breakdown. Seva’s testimony was that about six years before separation, a woman with whom Seva had had a romantic relationship in Russia (prior to his marriage with Elena), contacted him and said her daughter would be coming to Toronto to study and asked if Seva would help her in any way he could. Seva agreed to help and told the woman that her daughter would be able to find him at the YMCA where he volunteers and teaches karate. The woman’s daughter is Veronica.
42Seva testified that Veronica came to the YMCA and began to take martial arts; he and Veronica became close; and he believes she is his daughter. Seva asked Veronica to take a DNA test, but she refused to do so. Seva describes his relationship with Veronica to be one where he acts as a mentor and advisor. Elena and E. both testified that they believe Seva was romantically involved with Veronica during the parties’ marriage.
43Veronica testified that Seva is someone her mother told her she could seek assistance from when she came to Canada. Veronica and her brother lived in a one-room bachelor apartment initially when she came to Toronto. As a result, Veronica did not meet or spend time with Seva in her apartment. Instead, both Seva and Veronica testified that they would make plans to spend time together, out of her apartment, away from her brother and away from his family. It is agreed that when Seva was charged criminally, Veronica was his surety. When asked as to whether she was Seva’s daughter, Veronica answered that she can neither confirm nor deny that.
44Seva admitted during his evidence that he hid the extent of his relationship with Veronica from his children because he was worried about their reaction if they found that she was also his child. It is agreed that Veronica came to the parties’ apartment on four-to-six occasions and met the family. Veronica testified that she brought a cake to celebrate D. getting into university. E. corroborated that Veronica came to the apartment several times. Seva testified that he felt his children were not comfortable with Veronica and that he decided not to tell Elena or the children that he was helping get Veronica a freezer so she could store meat and food in case there were shortages in food supplies.
45After the parking garage incident, Elena testified that she was convinced that Seva was having an affair. She was extremely upset and tensions in the home were running high. She told Seva that she wanted to separate and needed some time to get a condominium. The children were aware that Elena was upset. They asked her why she was upset with Seva and, ultimately, she told them about what she saw in the parking garage. Elena testified that both children believed that Seva was having an affair with Veronica, as she did. Elena told the children she had decided to leave the marriage and given their ages, they were free to go with her or stay with their father. Both D. and E. told Elena they wanted to leave with her.
46During her testimony, Veronica testified that she was never in the parking garage in the parties’ apartment building, nor was she in the back of the parties’ minivan with Seva. Veronica’s evidence was in direct contradiction with Seva’s testimony. During his closing submissions, Seva stated that he lied under oath about Veronica being the woman who was in the minivan with him that day. Seva did not name the woman who was with him in the van.
47Elena testified that in early May 2020, she told Seva that their marriage was at an end and there was no chance of a resumption of their reconciliation. Elena called E., the parties’ daughter, as a witness, and she testified that tensions in the home were running high before that because of the parking garage incident and the parties had been arguing.
48Notwithstanding Seva’s explanation that his relationship with Veronica was not sexual, Elena and E. both testified that they believe Seva was having a romantic relationship with her. This is a result of the fact that E. searched through Seva’s computer when he was in jail and found messages between Seva and Veronica that she assumed were romantic in nature. Neither Seva nor Veronica testified that their relationship was sexual.
49On May 11, 2020, Elena opened a bank account in her name with RBC. Since coming to Canada, the parties only held joint bank accounts. Seva was not aware that she had opened this account.
50On May 14, 2020, Elena incorporated a new company through which she intended to carry on with her IT consulting work on her own. She used a family friend’s address, Stiven Wolf, for the registration address for the company. To incorporate a company, Elena had to do an Equifax search. Seva was not aware that she had incorporated a new company.
51On May 18, 2020, Elena rented a new condominium in her name.2 She testified that she began to look at new places to live in early May. E. testified that she was aware that her mother had rented a new condominium and that she went with her mother to see the condominium before the separation. Seva was not aware that Elena had rented a new condominium or that the children had gone to see the unit with her.
52In mid-May 2020, Elena asked Seva for money to assist her and the children so she could find alternate housing. It is agreed that Seva gave Elena $30,000 in cash in multiple brown envelopes from the safe in his room. E. testified that she was present when Seva “threw” brown envelopes with cash on the bed for Elena. Seva confirms that he gave Elena this cash and explains that he did so, to “calm her down” so she would not believe that he would abandon the family and take the cash and precious metals. Seva testified that after the garage incident, Elena had told the children he was having an affair with Veronica and had convinced herself and the children that Seva would abandon the family and take all their assets from them. He hoped that giving Elena $30,000 cash would allay these concerns.
53Elena testified that once she told Seva she wanted to leave, Seva became angry and tried to scare her and the children many times. She deposed that Seva spent nights in his room and that she and the children believed he was packing things in boxes, and he was stealing things from the family. Elena testified that she did not see what Seva was packing in boxes. She swore that she and the children heard Seva packing at night.
54On May 20, 2020, Elena used some of the cash Seva gave her and purchased additional silver coins.3 Elena testified that she used the cash to purchase new furniture for her apartment, to pay rent and to make a $10,000 down payment on the lease of a new car.4
The May 22, 2020, Incident
55Seva testified that he noticed the Equifax charge on their credit card for $75 and asked Elena what the charge was for. Elena responded telling him not to worry about it and advised she would repay the $75 to him. He testified that it was only after the separation when he learned that the Equifax charge was incurred to enable Elena to incorporate a new company.
56That same day, Elena testified that Seva came into the principal room and started screaming at her. Her testimony was that Seva said to her, “I will tell you what will happen if you leave. You will spend all your income on hiring lawyers and you will spend all your money paying spousal support and paying your lawyer”. In her examination in chief, Elena deposed that Seva was mad and aggressive and told E. that he had already cut her out of his life because she was supporting her mother, and he told the children he would make their lives miserable because they chose to live with her.
57In cross-examination, Elena testified that Seva showed her and the children empty shelves in the safe in his bedroom where he had previously stored silver, gold and platinum and he told E. that she would get nothing; that D. may get something; and that Elena would get nothing. Elena also testified that a few days before this incident, Seva grabbed her and threatened to beat her, telling her that he had a black belt in karate, and he knew how to beat her professionally.
58E. testified that Seva asked her to come into his bedroom where he kept his safe. It is agreed that Elena and D. followed E. into the bedroom and Seva showed them empty shelves in his safe, where he had previously stored some of the precious metals and cash and proceeded to tell the three of them that they would get nothing if Elena pursued the separation. Elena describes that Seva was screaming at E. and threatening E. that he had cut her out of her life; that she would not get any of her grandmother’s heirlooms; and that he would make their lives hell. E. corroborated that Seva said these things.
59E. corroborated her mother’s testimony that on May 22, 2020, she was in the living room with D. and saw that her father went into the principal bedroom where her mother was, and she got up to join her mother because her father shut the door. E. swore that she called her brother for help because she was worried her father would be aggressive and she heard her father say to her mother, “If you leave, you will spend all your mother on a lawyer; I will take everything; you will be miserable”. E. then described that her father opened the door, saw her and D., and told them both that he would make their lives miserable, and she went into the bedroom to help her mother. She then testified that when her father realized her mother was calling the police, he went into his room and had a bag and she presumed that he took a box of silver and left the apartment. When E. was asked whether Seva took anything else with him, she responded that he only took the box of silver.
60Elena and E. both testified that they became frightened for their safety because of Seva’s yelling, resulting in Elena calling the police. When Seva realized the police had been called, he testified that he left the apartment, taking bags which included silver with him, and locked his bedroom door. Elena testified that the bags Seva took with him contained silver, cash and other precious metals. E. also testified that she believes her father took bags of silver with him. Seva testified that he left the home because he knew without a lawyer that he would be removed from the home and/or accused of rape, so he took file folders with receipts in them and some silver with him because he was aware that he may not be able to return to the home for a while and he had nothing else on which to live.
61Seva does not deny that an altercation took place on May 22, 2020. Rather, he testified that he called E. into his bedroom because he was angry with her. A few days earlier, Seva testified that he fainted and lost consciousness for a few minutes and when he awoke, D. was standing above him and E. was sitting on the couch, playing games on her phone and smiling. Seva swore that he was so shocked and disappointed that neither D. nor E. seemed to care about his well-being even though he had fainted and lost consciousness and he was angry and disappointed with them. D. ultimately apologized to Seva, but E. did not. Accordingly, Seva testified that when he asked E. to come into his room on May 22, 2020, he did threaten to take all the precious metals and cash from the safe and he did tell E. that he had cut her out of his life. However, Seva testified that he did not actually take the precious metals or cash from the apartment. Rather, he made this threat to E. because he was angry with her and he hoped that if she saw how upset he was, she would apologize to him.
62The police came to the apartment on May 22, 2020, looking for Seva. He was not home. There is no dispute that later that evening, police executed a search warrant for Seva’s bedroom at the apartment. They were concerned there were restricted guns in the room. The police broke down the door of Seva’s bedroom. In the bedroom, the police seized several guns and ammunition.
63Seva surrendered to the police on May 23, 2020, and he was charged. He was released about six days later. As indicated above, ultimately, the criminal charges against Seva were withdrawn on October 21, 2021.
May 22, 2020 – May 23, 2020, Mr. Wolf holding Seva’s Silver for Safekeeping
64Slava Wolf testified at trial. He gave his evidence by affidavit, sworn on April 26, 2022, and he was examined by both Elena’s counsel and Seva.
65Mr. Wolf testified that on May 22, 2020, Elena telephoned him, advising that the police were at her apartment and looking for Seva, who had left earlier in the day. Elena asked Mr. Wolf to try and reach Seva.
66Mr. Wolf testified that he called Seva and told him to come home but Seva did not do so. Mr. Wolf testified that on May 22, 2020, Seva asked him to keep a bag for him for safekeeping which contained silver, which he agreed to do. Mr. Wolf testified that he met Seva and Seva’s friend, Victoria Bak, at a parking lot in the plaza at Jane and Steeles, at which point Seva took a bag out of his van and brought the bag and placed it in Mr. Wolf’s car. Mr. Wolf testified that he saw Seva moving several bags around in his van and that he saw one of the bags had file folders. Mr. Wolf then drove with Seva in his car to Mr. Wolf’s gym in Woodbridge. Veronica Bak did not join them on this drive because Mr. Wolf did not want her to come into his car. Both Seva’s and Veronica’s testimony corroborated Mr. Wolf’s testimony.
67When they arrived at the gym, Mr. Wolf testified that Seva took the bag and placed it in an empty locker at Mr. Wolf’s gym which he then locked. Mr. Wolf kept a key and gave the second key to Seva. Mr. Wolf looked in the bag and knew that it contained silver. Mr. Wolf testified that he did not count how much silver was in the bag. Mr. Wolf and Seva then drove back in Mr. Wolf’s car to the plaza and Seva went back into his car, where Veronica had stayed and waited for him.
68Veronica Bak swore an affidavit, dated November 17, 2022, deposing that Seva showed her a bag in which he had a green metal ammunition box which contained 16 semi-transparent plastic tubes used for coin storage, in which 25 coins fit into each tube. In addition, she deposed that there were 4 plastic sheets of 1 oz silver bars in his bag. Veronica took a picture of the contents of the green ammunition box which Seva gave to Mr. Wolf for safekeeping. These pictures were attached as Exhibits to her affidavit which contained some of her evidence.
69Mr. Wolf’s evidence is that Seva contacted him when he was released from jail and wanted to retrieve his bag of silver from him. Mr. Wolf said that commencing on June 1, 2020, he begun to receive several texts from Veronica Bak and Seva to arrange for the return of the bag. Seva and his wife went to Veronica Bak’s apartment, where Seva was staying, but Mr. Wolf did not have the bag with silver with him because he had not gone to the gym on the way to Veronica’s apartment. Seva testified that he became concerned about how long it was taking Mr. Wolf to return the silver to him, and he began to distrust him.
70In the evening of June 1, 2020, Mr. Wolf testified that he went with his wife to return the bag of silver to Seva at Veronica’s apartment and called Seva to come and retrieve the bag from his car. Mr. Wolf testified that when he called Seva, he and Veronica refused to come down to the car and retrieve the bag (note that Seva testified that he contacted the police because it became clear to him that Mr. Wolf had no intentions of returning his bag of silver to him).
71On June 2, 2020, Mr. Wolf testified that he received a call from a police officer, Constable Murnane of the Toronto Police, asking him if he had a bag with silver in it and he confirmed that he did have the bag. Mr. Wolf testified that he was instructed by the police officer to turn the bag over to Elena, which he did. Prior to returning the bag, Mr. Wolf took a picture of the contents of the bag, but he did not count the silver.5 It is agreed that Elena has possession of the silver Seva had given Mr. Wolf for safekeeping.
72As indicated above, in addition to the large safe in Seva’s bedroom, there were two safes attached to the closet walls in two closets in the apartment: one in the hall near a bathroom and one in the principal bedroom. Seva alleges that Elena had the two smaller safes removed from the wall and stole the contents from the safes when he was in prison. Both Veronica Bak and Lyudmyla Milovanova testified that when they accompanied Seva into the apartment for the first time on June 3, 2020, they saw two closets where the small safes had been removed from the walls, with holes in the wall matching the flat sides of a crowbar, also found in the apartment. Pictures of the missing safes from the walls of the closets with the holes matching the size of the crowbar and the crowbar were attached as Exhibits to Veronica’s affidavit.
73Elena alleges she did not remove these safes from the wall. She testified that she did not know what was stored in these safes and she had nothing to do with them or their removal. Elena’s testimony is that she did not have the locks or combinations for these safes. There was no evidence led by either party as to what quantity of precious metals and/or cash was in the two smaller safes.
Events between May 22, 2020, and June 6, 2020
74Between May 22, 2020, and May 30, 2020, Elena and the children moved their belongings from the apartment to a new condominium Elena had rented.
75Mr. Wolf testified that he and his wife helped Elena and the children move to their new condominium.
76On May 30, 2020, at 1:07 p.m., Seva attended at the matrimonial apartment with two police officers to retrieve some belongings.6 At that time, Elena and the children left the unit temporarily to facilitate Seva’s attendance. During this visit, Seva located and turned over his Firearms-PAL licence to officers as per his bail conditions.
77Much was made at the trial about the changed locks on the parties’ apartment. Seva testified that Elena changed the locks on the apartment at some point after the May 22, 2020, incident without the permission of the building, which led to the building having to change the locks again on June 3, 2020, when he returned to the building. Elena denies this, as did E. Mr. Wolf testified that on June 3, 2020, he received a call from his wife who had been called by Elena to come to her apartment (the matrimonial home apartment) because Elena had received an email notification that the locks at her apartment were being changed. Elena testified that when she arrived at the apartment, the superintendent and maintenance men at the building were changing the locks of the apartment door at Seva’s insistence. Seva testified that he believes Elena and E. had planned to come back into the apartment for some reason, perhaps to retrieve belongings or to clean up the debris from having removed the two smaller safes in the unit.
78Mr. Wolf’s testimony confirmed that Elena asked him to attend the apartment and find out why the locks were being changed. He confirmed that Elena and E. came to the apartment, asked to enter the apartment to retrieve their bikes and were told that they could not enter the matrimonial home because they were no longer residents there.
79Elena testified that she returned to the apartment on June 3, 2020, because she received an email notification that the locks on the unit were being changed. When she arrived at the apartment on June 3, 2020, she found maintenance workers there who confirmed they were changing the locks at the direction of the property manager. It is agreed that Elena and E. were not permitted entry into the apartment.
80Seva testified that the locks on the apartment had to be changed because Elena had clearly changed the locks to the apartment after the May 22, 2020, without the permission of the building.
81The superintendent of the apartment building, Miodrag Jankovic, testified at trial. Mr. Jankovic confirmed that he was in the middle of changing the lock on the parties’ apartment on June 3, 2020, when Mr. Wolf, Elena and E. came to the apartment. He testified that they wanted to enter the apartment to pick up some things they had left there. When he was questioned by Elena as to the reason that he was changing the locks on the apartment, Mr. Jankovic said the property manager asked him to change the locks on the apartment. He confirmed when he first went to the apartment, the two spare keys that the building had for the lock did not work and they realized the locks had been changed illegally. The property administrator, John Lebow, attempted to contact Elena to obtain the keys for the lock that had been installed at the apartment, but they could not reach her. Mr. Jankovic explained that although there was no apparent damage to the door, it appeared that the locks on the apartment door had been changed sometime between May 22, 2020, and June 3, 2020, without notifying the building administration. Mr. Jankovic further explained that tenants in the building are not permitted to change the locks to their apartments without permission. As a result, the property manager, John Lebow, who took his instructions from Jeff Goldband, property management, told Mr. Jankovic to change the locks on the apartment.
82Mr. Jankovic’s version of why the locks on the apartment had to be changed was confirmed by Veronica and Ms. Milovanova,7 who each testified that they met Seva at the apartment on June 3, 2020, and he asked each of them to accompany him to the apartment to ensure that he had the right to be there because of the restraining order and the bail conditions which were in place. Each of Veronica and Ms. Milovanova testified that Seva asked John Lebow, the building administrator and the superintendent to check on the apartment to be sure that Elena and the children were not there. Veronica testified that she went up to the apartment with the superintendent when Mr. Jankovic discovered that the locks on the unit had been changed without the consent of the building, which caused them to break and remove those locks and change them.
83This is relevant because it appears, based on Elena’s reaction to finding out that the locks were being changed on June 3, 2020, she was sufficiently concerned that she asked Mr. Wolf to try and find out why. She and E. came to the apartment from their new condominium to learn why the locks were being changed, only to learn they were no longer able to enter the unit. I find that Elena and E. were surprised that the locks were being changed to the apartment and had hoped they would be able to enter the apartment.
E.’s Testimony
84E. is 19 years old, the youngest of the parties’ two children and in her second year at the University of Toronto. E. corroborated her mother’s evidence on several points. However, I do not accept her evidence as truthful as described more fully below.
85E. described the parties’ living conditions and her lack of space in the apartment. She testified that between January 2020 and April 2020, the tensions in the apartment were very high – “the worse they had ever been”. She recalled that the day her mother went to the garage and came back in April 2020, her mother was very angry. When E. asked her what had happened, her mother refused to tell her at first, but ultimately told her and D. what had happened. For the next couple of weeks, E. testified that the fights between her parents were very bad, and her mother decided to separate. E. deposed that her mother told her father, her and D. when they were all in the living room that she intended to leave the apartment. Her father was very angry.
86E. testified that her father did what he could to stop them from leaving: he taunted them; he took money and silver from the apartment; he put up cameras in the apartment; he called her into his room on May 22, 2020, and D. and Elena followed, and he sat on his bed, looked at the safe and said, “Whatever was there before, the silver and platinum is no longer there. The silver is no longer there. I cut you from my life. You are no longer my daughter, and you will get nothing”. After that, E. testified that her mother called the police.
87When asked whether she was present when her father gave her mother $30,000 of cash, E. testified that sometime at the beginning of May 2020, her father came into the principal bedroom and threw brown envelopes of cash at her mother and gave her $30,000. E. testified that afterward, her father was searching for the cash and that he demanded the money back from Elena. Seva denied this.
88In terms of Seva taunting them, E. testified that her father taunted each of her, Elena and D. at separate times: to her brother, Seva would yell at him randomly about something he was doing; to her, he would angrily come up to her and tell her to do things for him out of the blue; and to her mother, he was consistently yelling at her.
89E. testified that her father made a “big performance” out of removing things from the apartment in the days leading up to the May 22, 2020, incident. She stated that her father would take green ammunition boxes with silver inside them out of the safe in his room and put them in the living room; he would then put the boxes near the door; and then 30 minutes later he would take it and leave the apartment with it. She also testified that she heard her father shuffling things in his room in the middle of the night and she thought he was robbing her, D. and her mother and taking the silver. I do not accept E.’s evidence about her father removing the precious metals and/or cash from the apartment as credible for the following reasons:
a. E. did not say she saw her father remove boxes with silver or other precious metals from the apartment in her will-say statement.8 In answer as to why the trial was the first time that E. mentioned she saw her father remove the precious metals from the apartment, E.’s answer was “Mr. Berlin asked me about it yesterday and I testified about it.” In the will-say statement, E. stated that
“In the evenings he spent extra time in his room, and I heard the shelves or drawers opening and closing, metal sounds, and the sound of sticky tape he used to close the boxes of valuables. I told my Mother one night, “You’re being robbed by him. It’s entirely yours because you worked hard for it”. This was confirmed when later, my Father called us to his room and showed us the empty shelves where he had apparently kept gold, platinum, and silver, telling us that he had moved everything out of the apartment and that we would receive nothing.”
b. E.’s evidence that Seva made a production of showing them he was taking the precious metals from the apartment in the days leading up to the May 22, 2020, incident was contradicted by Elena, who said that she and the children did not see him move anything, they just heard him packing things and he threatened them on May 22, 2020, that he would leave them with nothing. When asked whether E. told anyone that she had seen her father removing green ammunition boxes of silver from the apartment, E. answered that she told her mother.
c. In cross-examination, Elena confirmed that the children were witness to Seva telling them he removed everything, but the children did not witness him taking the precious metals and/or cash, only witness to him saying he removed everything.
d. E. was not able to identify what time of the day Seva allegedly removed the boxes of silver.
e. E. emailed Seva after the separation on August 3, 2022. In this email, E. was very angry with her father and made many derogatory comments about him as a father and a person. It is noteworthy that E. failed to mention in this email that he had stolen the silver/precious metals out of the apartment. When asked to explain why she did not mention this in her email, E. answered, “You already told me that you had taken it out, I knew what I knew”. E. also said she, D. and her mother all knew he was removing the precious metals. I am not persuaded that this evidence is true. E. did not hold back in her email to Seva. She called him a “thief, cheater and a compulsive liar”. She accused Seva of about lying about having another daughter while also having sex with her and accuses him of depriving her of a loving childhood. It does not make sense that E. failed to mention that Seva stole all the cash and precious metals in the email in which she accuses her father of all his bad deeds.
f. E. testified that she, her brother and Elena all knew Seva was removing the precious metals and cash from the apartment. While I accept that the three of them believed Seva was packing things in his room and that he may try and take the cash and precious metals, if E. actually “saw” her father removing the precious metals in boxes as she testified, then it would follow when the police questioned her on May 22, 2020, she would have mentioned her witnessing her father remove cash and precious metals from the apartment in the days leading up to the May 22 incident. She did not do so.
g. When asked in cross-examination how Seva carried the green ammunition boxes filled with heavy silver out of the apartment, E. testified that he put the green boxes into brown cardboard boxes. When asked whether she saw Seva bringing empty carboard boxes into the apartment, E. answered that she did not know where the boxes came from and that she does not know whether she saw him bring empty boxes into the apartment. E. was also not able to explain how Seva stored the empty cardboard boxes in his room. When asked how Seva transported the boxes outside of the apartment, E. testified that Seva both carried the boxes and used a trolley on wheels that he used to carry heavy things. When asked during cross-examination how long Seva was gone from the apartment when he moved these cardboard boxes with silver in them, E. said she did not keep track, but he was gone for a very long time. When Seva asked in cross-examination how many times in a day he was gone removing the boxes with silver in them, E. answered that he was gone a few times in a day, and absent for a long time each time. E.’s answers to these series of question were vague and I find they did not have the ring of truth.
h. When E. was asked by her mother’s counsel, Mr. Berlin, whether she took a crowbar to remove the two small safes which were attached to the walls inside closets in the apartment, E. answered no. E. testified that she never had or saw a crowbar in the apartment and that she did not witness her mother or her brother use a crowbar to remove the two small safes from the apartment. She also testified that it was not possible for any one of the three of them to have removed the two small safes, because she, D. and her mother were constantly together. Again, this does not have the ring of truth, namely, that the three of them were always together between May 22, 2020, and when they moved out on May 30, 2020.
i. E.’s will-say statement matched Elena’s evidence that she “heard” her father moving belongings and packing things at night and she presumed he was packing up precious metals and cash. However, in her oral testimony, E. swore that she “saw” her father take boxes in and out of the apartment; he made a “big performance” out of what he was doing and that was the basis of her testimony that he stole these items. If this was true, then why did E. not tell her mother so someone could have stopped Seva from removing the precious metals, particularly since her evidence was that Seva removed boxes filled with precious metals and cash several times in a day? Further, why did Elena not call the police to report this? In addition, if, as E. testified, Seva left the apartment multiple times with boxes containing precious metals, then why were no steps taken by anyone to call the police and stop him from doing so more than once? What possible explanation is there for E., D. and/or Elena to have allowed and watched Seva repeatedly move boxes of precious metals from the apartment over days? At this time, E. testified she had visited the condominium where she, D. and her mother would be moving. There was already a plan in place for them to exit the family. It would follow that if Seva was removing the family’s savings over the course of a few days prior to May 20, 2020, E. would have told her mother and Elena would have reported it.
j. E. admitted to going through her father’s computer and finding messages between him and Veronica. Presumably, during the ten days that she, D. and Elena were in the apartment between May 20, 2020, and May 30, 2020, E. went through all her father’s belongings in search of anything to find that he was having an affair and/or to find cash and precious metals, including the two smaller safes.
90I found E.’s testimony credible about her cramped living circumstances; her father’s controlling nature with money; her father’s belief about the end of the world; how hard her mother worked; and how much better her and D.’s life has been after they moved out. I accept E.’s evidence about the difficulties in her relationship with her father during her later teenage years. I also accept her evidence that her father has hurt her, did not consider her feelings, was not child-focused and has blame for the damage in their relationship. I find that E. is committed to the narrative that Seva stole all the precious metals and cash from her, her brother and her mother, and that she is prepared to give that evidence, even if it is not fully true. I find this because E. was not able to agree to reasonable suggestions put to her in cross-examination and was not balanced in her testimony about her father. E. testified that she always had a horrible relationship with her father. However, when she was shown family pictures, including those of her and her brother as young children on holiday with her parents, where E. was sitting with her father, E. would not admit that she was a happy young child in those pictures. Instead, she insisted that even at a young age, she was “posing” for pictures and smiled only for that purpose. That evidence is not credible.
Elena’s Testimony
91I accept the following parts of Elena’s testimony as being credible:
a. There were many discussions between the parties as to the family’s lifestyle during the marriage. Both children complained about not having privacy; living and trying to do schoolwork in crowded space. they also found it difficult to study because of noise. Elena testified that she and the children asked Seva to move to a three-bedroom unit or to buy a house on several occasions and Seva’s answer was that the parties could not afford to do so. Elena’s evidence is that this issue and Seva refusing to work outside of the house caused many arguments and unhappiness for the family. Seva told her throughout the marriage that he was not someone who could work for someone else.
b. Seva has a degree in computer science and in TV journalism which he obtained in Moscow.
c. Seva was controlling with respect to finances. He kept receipts and invoices for all purchases. I find this evidence credible because it was confirmed by Seva during his evidence that he kept every receipt for every purchase for years, he oversaw the family’s finances, and he ensured the family had no debt. Both Elena and E. confirm that Seva made them account for purchases. It would follow, therefore, that the way Seva approached the family’s finances was considered controlling by Elena and E.
d. Seva refused to work other than the accounting work for Effective and investments for the family because he did not want to work for someone else.
e. Seva had concerns that the world would end, and chaos would ensue.
f. Elena paid for the children’s expenses on her own after separation; and
g. Seva was involved in an extra-marital affair.
92I do not, however, accept Elena’s testimony as credible that Seva took all the precious metals/cash that was in the apartment on May 22, 2020, or prior to that date, nor do I accept her evidence as to the fair market value of the household contents as at date of the marriage.
93Elena’s testimony about the precious metals and cash can be summarized as:
a. Seva stole all the cash and precious metals from the apartment, except for $30,000 cash he gave her prior to the separation and for the fair market value of the silver she recovered from Mr. Wolf after the separation, worth $70,765.97. Elena accepts Seva’s value placed on the precious metals of $314,945.25 and seeks an order that Seva pay her 50% of the balance of the precious metals and the remaining cash. While Elena did not testify about what the sum of cash was, her sworn financial statement indicates that she believes $32,000 of cash remained in the safe on V-date, all of which, or $16,000 of which, was taken by Seva.
b. In the days and weeks leading up to the incident on May 22, 2020, she and the children heard Seva packing up boxes in his room at night. She specifically testified that she did not “see” him take anything, but she “heard” the sounds of items being moved and packing tape being used to close cardboard boxes.
c. On the day Seva asked E. to come into his room (May 22, 2020), she and D. followed E. into Seva’s bedroom and Seva threatened E. by telling her and showing her empty shelves in the safe where she had previously seen cash and precious metals; Seva told E. that she, D. and her mother would get nothing if Elena left him, and that Elena would be left to spend all her money on lawyers. I accept this evidence as true not only because E. corroborated that these events took place, but because Seva testified that he called E. into his room, intending it to be her only, but D. and Elena followed her, and he did threaten to take the precious metals and cash and leave the family with nothing.
d. When cross-examined by Seva as to why she did not tell the police about the stolen precious metals and cash, since she testified that she was present when Seva threatened to steal these items and leave the family with nothing, she had no answer.
e. She knew nothing about the two other safes in the apartment that were nailed to the walls in two different cupboards. She testified that she never knew what was in these safes, they were always covered with clothing; she did not remove them from the apartment, and she did not know anything about their whereabouts. Elena had no explanation for Seva’s testimony, Victoria’s testimony and/or Ms. Milovanovic’s testimony, that the first time Seva returned to the apartment after being in custody, they found the two safes previously adhered to the walls inside two cupboards missing, a crowbar on the floor in the apartment, and holes in the walls where the safes had been removed matching the size of the crowbar.
f. She testified that she did not know the combination for these two safes, she had asked Seva for them, and he would not give them to her.
g. She testified that she did not tell the police about the two other safes because “it is not something you tell people about”.
94I find that Elena did not prove on a balance of probabilities that Seva stole the precious metals and cash from the apartment. I am not persuaded that Elena had no knowledge about what happened to the two smaller safes in the apartment. I find that Elena removed the two smaller safes from the inside of two cupboards and took the remainder of the precious metals and cash from the apartment because:
a. When Elena started the within application on July 8, 2020, she sought a divorce only. Had Seva not responded on September 15, 2020, with a claim for division of net family property and the return of what he claims to have been cash and precious metals stolen by Elena, Elena would not have been seeking that Seva repay her for 50% of the precious metals and cash that she now claims Seva stole.
b. Elena had prior opportunity to report Seva stealing the precious metals and cash and did not do so. When Elena called the police on May 22, 2020, to report Seva’s assault, she did so to report his criminal acts to the police. This resulted in the police having to obtain a warrant and they came into the apartment and seized Seva’s arms, weapons, ammunition and contents of the large safe in Seva’s room. Elena never mentioned to the police that Seva stole all the precious metals and/or cash when he left the apartment. When cross-examined as to whether Elena told the police that Seva stole $500,000 of precious metals, Elena said that she told the police that Seva had threatened to remove things from the apartment, but she could not recall whether she mentioned the value of the precious metals of $500,000. Even though Elena testified that she had suspicions that Seva had been removing precious metals and/or cash from the apartment in the days prior to May 22, 2020, and that she heard, but did not see, Seva packing bags or boxes for days prior to May 22, 2020, she could not explain why she failed to mention that to the police.
c. When Seva cross-examined Elena as to whether she told the police that he had removed $100,000 cash from the apartment, she answered that she does not remember exactly what she said, but she believes she said he removed cash. There was no evidence led to demonstrate that Elena mentioned the missing cash in the apartment to the police. Elena could not explain why she failed to mention the stolen cash to the police. I find that it is only once Seva made a claim for the return of these items in this court application that Elena tried to rebut the allegation and took the position that Seva stole these items.
d. Even if Elena had forgotten when the police were at the apartment on May 22, 2020, to report her suspicions that Seva stole the cash and precious metals from the apartment, she had many other opportunities to report to the police that she was concerned or had suspicions that Seva stole these items between May 22, 2020, and when she issued this Application on July 8, 2020. This is particularly the case, since Seva had left the apartment and did not report to the police until May 23, 2020, and was then in custody for about six days. Elena would have had a chance to go through everything in the apartment while he was in custody and if she truly was concerned that Seva had stolen all the family’s savings she could have and should have reported it to the police, since she had already engaged them regarding Seva’s other conduct that she believed was criminal.
e. The police took photographs of Seva’s room when they searched the apartment. The police photographs of the safe in Seva’s room show the safe with the door open.9 Inside the safe, the police photographs show a number of items, including a wallet, black boxes, a green ammunition box, black plastic boxes, three large yellow plastic boxes, one large blue plastic box and a small white cardboard box in the corner of the right side of the safe.10 There are no police photographs of the two smaller safes since they were not in Seva’s room and the search warrant was only for Seva’s bedroom. Both parties testified that the three large yellow plastic boxes and the large blue plastic box in the large safe contained precious metals. Seva’s testimony was that the yellow and blue plastic boxes are known as Royal Canadian Mint Monster Boxes, of which there were 4 in total, containing 2,000 oz. of precious metals. Elena did not know how much silver was in these boxes. It is clear from the police photographs that Seva had not stolen all the precious metals and/or cash from the safe when he left the apartment on May 22, 2020, or nothing would have been in the safe. When asked in cross-examination who took the three large yellow plastic boxes and the large blue plastic box from the safe in Seva’s room, Elena admitted that she has them. This evidence is inconsistent with her evidence in chief that Seva took all the precious metals in the safe.
f. Elena had the opportunity to remove the precious metals and the cash from the apartment between May 22, 2020, until May 30, 2020, when she and the children moved. She was in the apartment without Seva, and she was aware that he was in custody. Elena did not dispute that once Seva left, the conditions of his bail prevented him from being able to come to the apartment.
g. Elena had no explanation for why Seva, Veronica11 and Ms. Milovanova12, all of whom testified that they came into the apartment on June 3, 2020, found the apartment a mess, the two small safes inside the cupboards missing, a hollowed-out space where each safe had previously been and a crowbar on the ground covered with clothing. Elena did not address this in her evidence in chief and merely insisted she knew nothing about the two safes. In the fall of 2021, Veronica and Ms. Milovanovic each filed affidavits in chief in this proceeding and, as a result, Elena was aware before the trial that each of them deposed that they had found the holes in the wall on the inside of two cupboards where the two small grey safes had previously been, with flat holes in the wall that matched the side of the crowbar. Yet, she failed to address this in her evidence in chief. In cross-examination, when Seva asked Elena for an explanation as to why he would have removed the two safes from the walls with a crowbar when he, himself, knew how to open the safes and/or had the keys or combination, she answered that he did so because he had a plan to call the police and accuse her of robbing him. When Seva then asked her whether he had called the police and reported that Elena robbed him, she acknowledged that he did not do so. This answer by Elena is nonsensical and I find it to be disingenuous.
h. When asked in cross-examination how Seva could have ripped two safes off the wall with crowbars given that he was not in the apartment between May 22, 2020 (the day Elena called the police), and June 3, 2020, when he returned to the apartment after being in custody, Elena answered that she did not know. When Seva asked Elena during cross-examination, if after his arrest, at any time whether she recalls seeing any debris that would have come off the wall when Seva allegedly came into the apartment and removed the two safes were removed, Elena answered that she does not know whether she saw any garbage or debris and she cannot remember if she did see any garbage or debris. It is not disputed that the only time Seva entered the apartment after his arrest on May 23, 2020, was when he was accompanied by the police on May 30, 2020, to retrieve his belongings and deliver his PAL licence to them.
i. Other than the one visit Seva had at the apartment accompanied by the police on May 30, 2020 (referred to in h. above), Elena admitted that Seva first came into the apartment without the police on June 3, 2020, and she had no information or knowledge that he had been to the apartment before that date since she had called the police on May 22, 2020. This confirms that Seva had no opportunity to remove the two small safes from the inside walls of the two cupboards. At no time did Elena suggest that Seva removed the two small safes prior to the arrest.
j. Elena testified during her cross-examination that the children did not witness Seva removing the cash or precious metals from the apartment, but they were witness to Seva telling them that he had removed everything.
k. When asked in cross-examination whether Elena had any idea when she first realized that the two small safes were missing from the apartment, Elena answered that she has no idea when the two safes were removed because she did not check on the safes when she left and she has no idea. I find that Elena is a skilled and competent person. She demonstrated that by the work she did through Effective and the fact that she seamlessly carried on her contract work after the separation through a new company she incorporated, she would have tried her best to locate what was in the two smaller safes. In the weeks leading up to the separation, Elena was able to secure new housing for her and the children; incorporate a new company, and open a new bank account, on her own, without Seva knowing. If Elena was truly concerned that Seva had stolen the family’s entire savings in the form of cash and precious metals, she would have looked to see if the two safes in the apartment remained intact and she would have told the police about this at some point between May 22, 2020, and May 30, 2020, when she left the apartment. She did not do so.
l. Elena and E. clearly thought they could return to the apartment after they moved out. I am persuaded of this fact given how Elena reacted when she learned the locks on the apartment were being changed by the landlord. I find this relevant because if Elena thought she could return to the apartment, it is also possible that she could have thought she would have had an opportunity to clean up the mess that was found on June 3, 2020, and clean up the debris and crowbar left in the apartment to remove the two smaller safes.
m. Finally, Elena insisted that Seva’s grandmother’s vase, which the parties agree was an heirloom, was left in the apartment under Seva’s bed and she took it when she moved. Seva, however, testified that there is no possible way for that vase to have been under his bed, since it did not fit under the bed. Instead, Seva claims that the vase was kept in one of the small safes. Seva took photographs of the vase in front of his bed to demonstrate that there was no way that vase could have possibly been under his bed.13 I find that Elena did not prove on a balance of probabilities that Seva’s grandmother’s vase could have fit under the bed in Seva’s room, which means she was able to have obtained the vase and remove it from the apartment in some other fashion.
Seva’s Testimony
95I accept the following testimony of Seva to be credible,
a. Seva admitted that on May 22, 2020, he threatened E. that he would remove the precious metals, cash and family heirlooms from the apartment. However, his evidence was that he did so because he hoped the threat would make E. want to repair his relationship with him. He was very disappointed and angry with E., and he tried in his own way, albeit not effectively, to make E. feel guilty for how she had treated him.
b. Seva testified that he gave Elena the $30,000 cash because she was so angry with him, believing he was having an affair, and he wanted to assure her that he would not leave or abandon the family and take all the cash and precious metals from them, as Elena was telling the children he would do. Considering Veronica’s testimony that she was not the individual in the van with him, it follows that Seva gave Elena $30,000 of cash because he felt guilty, and he was trying to salvage the marriage or keep the family together.
c. Seva testified that after Elena called the police, he left and grabbed folders he had filled with receipts, and he took 400 silver tubes and 100 bars of silver which he put in a sport bag and gave it to Mr. Wolf for safekeeping.
d. There would be no reason for Seva to have removed the two smaller safes attached to the walls of the two cupboards in the apartment with a crowbar when he knew the combinations and/or had the keys to open the safes.
e. There were two other witnesses who entered the apartment with Seva on June 3, 2020: Veronica Bak and Lyudmyla Milovanova14. They both testified that in addition to the apartment being a total mess, the two safes had been removed from the walls, a crowbar was on the floor, and the holes in the wall matched the size of the crowbar. In addition to the testimony of these three witnesses, they took photographs showing that the two smaller safes had been removed. Elena did not have a plausible explanation for how or why these safes were not there when Seva came into the apartment, only that she did not do it.
f. If Seva had taken the precious metals and cash from the apartment, then it would follow that he would not have reported to the police that Mr. Wolf would not return his $70,000 of silver he gave Mr. Wolf for safekeeping. He did so because Seva quickly grabbed the silver he could find and carry with him when he left once, he learned that Elena had called the police, and he needed it back. Elena’s evidence from her sworn financial statement and NFP statement15 confirm that Seva left silver in the safe which she took after the V-date.
g. In his emails to E. and D. after the separation, Seva acknowledged that he threatened to take the precious metals and cash from the family, but he never did it and he was apologetic.
96Seva admitted during his closing submissions that he lied to Elena about being in the car with Veronica when she came into the parking garage and saw him lying down in their Honda Odyssey minivan with a woman. Seva also lied under oath when he testified in court that he was in the minivan with Veronica in the parking garage. Seva was self-represented at trial. During his closing submissions, he said that Veronica was not the woman with whom he was found in the minivan. Although not sworn evidence, I accept Seva’s story that he was with another woman, not Veronica, and that his story was the truth and that Seva lied under oath when he told the court that the woman in the car was Veronica. Seva’s statement in his closing argument is consistent with Veronica’s testimony that she was never in a minivan with Seva lying down in the parking garage of their building.
97I have serious concerns about Seva lying under oath in court. However, for the reasons listed above, I find, on a balance of probabilities, that Seva was credible when he said he did not take the $314,000 in precious metals and the remaining cash from the apartment. Seva did not have an opportunity to remove the two smaller safes from inside the two closets when he left the apartment on May 22, 2020, and he returned on June 6, 2020. There was no reason for Seva to have removed the two smaller safes from the inside of the two closets with a crowbar since he had the combinations to the safes. Further, I am persuaded that Elena had intended to return to the apartment after she moved out on May 30, 2020, using the keys to the lock she had changed after Seva’s arrest, since it was corroborated by the building superintendent, Seva, Veronica and Ms. Milovanova that Elena and E. were denied access to the apartment, when the superintendent was directed by management to change the locks on June 3, 2020.
Conclusion on who took the Precious Metals
98I find, therefore, on a balance of probabilities, that Elena retained the balance of the precious metals and the cash that was in the apartment. As a result, Elena owes Seva 50% of the value of the precious metals and cash she took as a post-separation adjustment to the EP.
Issue Two: Which party owes the other an EP, taking post-separation adjustments into account?
99The property division provisions of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), provide that the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them: s.5(1). This is known as the equalization payment (“EP”).
100Net family property, (“NFP”) is defined as the value of all the property a spouse owns on the valuation date (date of separation) (“V-date”), after deducting the spouse’s debts and liabilities as at the date of separation, and the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage less the spouse’s debts and other liabilities on the date of marriage.
101After the date of separation, the parties equally divided all their stocks and investments, which totalled $249,529.92, resulting in each of them receiving $124,766.
102Other than the fact that Seva gave Elena $30,000 cash just prior to separation, the parties do not agree as to who retained the remaining $60,000 of cash which was being held in the safe and/or whether the balance of the cash on the V-date was $60,000 (as Seva claims) or $30,000 (as Elena claims).
103Seva prepared a Schedule which details the precious metals, including but not limited to, gold, silver and platinum Bullion/Bars/Coins that had been kept in the safe as at the V-date. The total value he placed on the precious metals was $314,945.25.16
104It is agreed that at the time of the May 22, 2020, incident, Seva took with him silver that had a value of $70,765.97. As indicated above, Seva testified that he gave Stivan Wolf this silver for safekeeping while he was in prison; after Seva was released from prison, he tried to get Mr. Wolf return the silver to him; when Mr. Wolf would not do so, Seva reported this to the police; Mr. Wolf testified that he was told by the police to give the silver to Elena, which he did. I find that Mr. Wolf had the silver Seva took with him when he left the apartment on May 22, 2020, in his possession for safekeeping and returned it to Elena. Elena testified that she has retained the silver with a fair market value (“FMV”) of $70,765.97.
105On Elena’s financial statement, sworn on February 24, 202317, she lists 50% of the precious metals on the V-date as being worth $157,472.50, being half of the $314,945.25 (the agreed upon value) stated by Seva. She deposes that most of the precious metals had been taken from the apartment by Seva. Elena also lists precious metals on her side of the ledger as at the date of statement with a FMV of $82,867.78 and deposes that “after the V-date, she received some of the precious metals that the husband had left in the safe in his bedroom and a bag of precious metals he had left with a friend, which she continues to have in her possession”. Since it is agreed that $70,765.97 of silver in Elena’s possession came from the silver Mr. Wolf had in his possession for Seva’s safekeeping, this means that Elena took additional silver worth $12,101.81, which she retrieved from the safe after Seva was arrested. According to her financial statement, Elena deposes that she received “some” of the precious metal that Seva had left in the safe in his bedroom. Elena did not testify about this additional silver at trial.
106On her financial statement, sworn on February 24, 2023, Elena also lists cash of $28,000 on the V-date on her side of the ledger. She deposes that the parties had accumulated cash at their matrimonial home, estimated to be at least $92,000, prior to the V-date. She swears that prior to the V-date, she received $30,000 from Seva in cash, and what was left from the $30,000 on the V-date was $28,000. She also lists $16,000 of cash on her side of the ledger on the V-date and states that “the parties were entitled to an equal portion of the said Cash, which, after taking into account the $30,000 she had received is estimated to be $16,000.” This appears to mean that Elena believed there was an additional $32,000 of cash left on V-date, of which she was entitled to $16,000, that being 50%.
107According to Elena’s NFP statement18, her NFP is $378,263.59; Seva’s NFP is $377,071.65, and she owes Seva an EP of $595.97.
108Elena attached a Post Separation Adjustment and Analysis chart to her NFP statement to account for events that transpired post-separation and indicates that once these adjustments are considered, Seva owes her $129,790.25. The post separation adjustments Elena seeks are as follows:
a. She seeks to be reimbursed $18,570.79 from Seva to account for 50% of the household contents Seva was able to keep after the V-date;
b. She seeks to be reimbursed $9,500; $3,250; and $2,000, from Seva to account for the 2015 Honda Odyssey EX-L; the 2012 Yamaha Wave Runner SHO Cruiser and the two Trek bicycles Seva kept after the date of separation.
c. She seeks to be reimbursed $86,706.53 from Seva which represents what she claims is 50% of the value of the precious metals Seva kept after the date of separation. This figure, however, does not add up to 50% of the $244,179.28. Elena did not explain this discrepancy or inconsistency in her evidence.
d. She agrees to reimburse Seva the sum of $898.57; $40.51; $750.04, being the overage of what she claims to have withdrawn from the parties’ joint BMO bank account after the date of separation from accounts #853 and #244.
e. She agrees to reimburse Seva the sum of $3,073.04, which is the overage of what she claims to have withdrawn from the Effective bank account after the date of separation which was a joint account belonging to both parties.
f. She seeks to be reimbursed $16,000 from Seva which represents what she claims to be half of the cash she believes remained in Seva’s possession on the V-date. Again, this figure does not add up to 50% of the $62,000 of cash that was left on the V-date. Elena did not explain in her testimony how she arrived at the figure of $32,000 of cash being left in the safe on the V-date.
g. She agreed to repay Seva the sum of $1,080.93, which represents the fact that Seva paid the parties’ Capital One credit card after the V-date.
h. She seeks to be reimbursed $202 because she paid the parties’ BMO credit card on the V-date.
109Elena states that of the post-separation adjustments, the following items are in dispute:
a. The value she has placed on the household contents at the V-date, and about which contents each party retained.
b. Whether or not Seva has the Trek bicycles, since he claims he does not have them, and Elena claims she does not have them.
c. Which party has possession of the balance of the precious metals from $314,945, other than the $82,867.78 she retained (which includes the silver that remained in the safe at the matrimonial home and the silver Seva gave to Mr. Wolf for safekeeping which was returned to her).
d. Which party has possession of the balance of the cash on hand at the date of separation and whether the balance of the cash was $30,000 as Elena claims or $60,000 as Seva claims.
110Of these disputed items, the central issue of this trial, which impacts which party owes the other a property payment from the division of the parties’ NFP and the post-separation adjustments, is whether Elena or Seva kept the balance of the precious metals worth $244,179.28 and the cash, either $30,000 or $62,000, totaling at most $306,179.28.
111As indicated above, I have determined that Elena kept the balance of the precious metals and cash that existed on the V-date.
Disputed Items in the NFP Calculations
112The two other items in dispute are the following:
a. Whether the value of the household goods and furniture were worth $60,000 in total on the V-date and whether Seva retained most of these contents.
b. Whether Elena had undisclosed bank accounts as at the V-date.
Value of Household Contents
113On Elena’s sworn financial statement, dated February 24, 2023, she lists the value of 50% of the household contents on the date of separation being $30,000.19 On her financial statement, Elena lists
a. a 2015 Honda Odyssey EX-L with a value of $9,500 on her side of the ledger and a 2012 Yamaha Wave Runner SHO Cruiser with a value of $3,500 on her side of the ledger. She deposes that after valuation date, Seva kept both these items.
b. 2 Trek bicycles with a value of $2,000 on her side of the ledger. She deposes that Seva kept the trek bicycles.
114As a result, as a post-separation adjustment, Elena seeks reimbursement from Seva in the sum of $15,000 since Seva kept the car, wave runner and the Trek bicycles. Seva deposes that he does not have the Trek bicycles.
115I do not accept that Seva does not have the bicycles. Several witnesses heard Elena ask the police on June 3, 2020, to allow her into the apartment to retrieve the Trek bicycles. I accept Elena’s and E.’s testimony that they did not keep the bicycles.
116I accept that Seva kept the Honda Odyssey EX-L and the Yamaha Wave Runner. I find, therefore, that Elena should receive a post-separation adjustment for all three items in the sum of $15,000.
117Exhibit #23 at trial is a detailed breakdown of the household contents Elena prepared which she claims were left in the matrimonial home, in the possession of Seva. According to Elena, the fair market value of the contents totalled $82,455. This figure includes a Honda Odyssey which remained with Seva, which she valued at $19,000; a Jet ski, which she valued at $6,500, 4 trek bikes, which she valued at $8,000;20 televisions; appliances; used furniture; a laptop computer and desktop computer; and an Alkaline Water Ionizer. In her NFP statement, Elena uses a total figure of $60,000 for the value of the household contents she claims to have left in the matrimonial home with Seva and for which she seeks a post-separation adjustment of $30,000 as reimbursement. During the trial, Elena did not explain the discrepancy between her NFP statement which lists the total value of the household contents on the V-date at $60,000 from the detailed list of household contents which lists the total value of the household contents at the V-date at $82,455.
118Since I have already accounted for the Honda Odyssey, the Yamaha Wave Runner and the bikes, the remaining household contents according to Elena’s evidence is $7,500 if the total value of the contents on the V-date was $60,000 or $29,955 if Elena’s evidence is that the total value of the contents on the V-date was $82,455.
119During Elena’s cross-examination it became clear that 1) she overestimated the value of many of the items on her contents list; 2) she thought she was supposed to use the original price the parties’ paid for items or replacement cost for the contents, as opposed to the fair market value of these items; and 3) she was otherwise not truthful about the value of the household contents. Seva, who had kept most of the receipts for all major items purchased by him during the marriage, was able to demonstrate that Elena was not being truthful about the values she placed on many items. By way of example, Elena listed the value of the LG television at $2,400 and Seva was able to produce the original receipt for the same television of $589.98; Elena listed the value of a used sofa bed at $2,300, when the original price of the cost was $1,349.50; Elena listed the value of the LG Computer at $3,000 when the original invoice shows the cost was $1,503.09; Elena listed a Microsoft surface laptop at $2,000, when the receipt for the laptop shows the original cost was $1,349. Elena also admitted that she overvalued the price of frozen food and canned food in her list of household contents. I am not persuaded that the values of the household contents placed on Elena’s NFP statement is correct at $60,000 in total. Most of the items are used contents.
120Given that I have accounted separately for the Honda Odyssey, Yamaha Wave Runner and the bicycles, I find that total value of the used contents is $7,500. Since Seva retained most of the contents, I find that he owes Elena a post-separation adjustment of $3,750 for the contents he retained.
Undisclosed Bank Accounts in Elena’s Name
121During Elena’s cross-examination, Seva put three statements to her as evidence that she had failed to disclose the existence of these bank accounts/shares. One of these statements was from BMO and related to an account from an old TFSA account.21 The BMO bank statement showed a total balance of $645.63 as at December 2021. This bank account was not disclosed by Elena on her sworn financial statement.
122Seva also showed Elena a letter written to her from ICICI Bank, dated January 31, 2023, which referenced a TFSA account ending with #9903 and confirmed that there had been no transactions in the account for over 2 years, which resulted in the account being deactivated.22 The amount of the TFSA was not referenced in the letter. It is not clear as to whether there was a TFSA in Elena’s name on the date of separation.
123The third document was a statement from Computershare to Elena regarding a shareholder meeting, dated March 22, 2023, which indicates that Elena owns common shares in Computer share, which Elena did not disclose.23 Again, it is not clear as to whether Elena owned these shares on the V-date and, if so, what the value of the shares was.
124None of the account statements put to Elena in cross-examination evidence any balances in these accounts on the V-date. I accept Elena’s testimony that she was not aware of a TFSA at ICICI bank, or the Computer share shares. However, given that the parties’ banked at BMO, I find that the TFSA of $645.63 existed on the V-date and was not disclosed. I do not find that Elena necessarily actively tried to conceal this account, but I am prepared to find that a TFSA existed, and it was left off her financial statement inadvertently.
Post Separation Adjustments to the EP
125Based on Elena’s NFP statement, it is her position that she owes Seva an EP of $595.97. This calculation, however, contains the following incorrect figures:
a. a value of $30,000 on each party’s side of the ledger for household contents, which is a figure I have found to be incorrect.
b. a value of $44,000 for Cash on hand on Elena’s side of the ledger, and I have found that Elena retained all the cash after the V-date, which amounted to $90,000, $30,000 of which was given to her prior to the V-date.
c. this calculation does not include the BMO account of $645.63 on Elena’s side of the ledger, which account I have found to exist on the V-date, and which was not disclosed by Elena.
126Accordingly, Elena’s NFP of $378,263.59, set out in her NFP statement, should be increased by $46,645.64 ($46,000 extra for the cash Elena kept and $645.63 for the undisclosed BMO account), such that her NFP is $424,909.23. Since Seva’s NFP is $377,071.65, Elena would owe Seva an EP of $23,918.79, as opposed to $595.97.
127In terms of the post-separation adjustments, I find that Elena owes Seva the sum of $233,363.02, particularized as follows:
| Item | Comments | Adjustment |
|---|---|---|
| Equalization Payment | EP owing by Elena to Seva | $23,918.79 |
| Household Contents | Seva to reimburse Elena by $3,750 | ($3,750.00) |
| Vehicles/Watercraft | Seva to reimburse Elena the sum of $15,000 for the Honda Odyssey, Yamaha Wave Runner and Trek bicycles | ($15,000) |
| Precious Metals | Elena to reimburse Seva for the precious metals I find her to have kept after V-date. The parties agree the total value of the precious metals on V-date was $314,945. Elena’s sworn FS sets out that she retained $82,867.78, leaving a balance of $232,077.47 | $232,077.47 |
| BMO bank accounts | Elena agreed to reimburse Seva $1,689.14 on account of the difference between what each party took out of their joint BMO accounts | ($1,689.13) |
| Effective Technologies Bank Account | Elena agreed to reimburse Seva $3,073.04 from this joint account which she took after V-date | ($3,073.04) |
| Cash on Hand | This was already accounted for in the NFP adjustment above. Instead of $44,000 on E’s side of the ledger as Cash on the V-date, a total of $90,000 was listed on her side of the ledger. | |
| Credit Cards | Elena agreed to reimburse Seva $1,080.93 for the fact that he paid off the Capital One credit card and Seva is to reimburse Elena $202 for the fact that she paid the BMO credit card | $878.93 |
| Post-Separation Date Adjustments | Elena owes Seva and adjusted EP in the amount of | $233,363.02 |
128Accordingly, Elena shall pay Seva the adjusted EP sum of $233,363.02 within 30 days in full and final satisfaction of any and all property claims he may have against her under Part I of the Family Law Act.
Issue Three: What is Seva’s Income for Child Support Purposes?
129As indicated above, during the marriage, Seva was responsible for the financial operations for Effective, which included the bookkeeping, reconciling the invoices, collecting the cheques, completing the corporate income tax return and the parties’ personal income tax returns. It is agreed that Seva determined how income would be allocated to the parties from Effective. Elena was responsible for generating business for Effective and completing the IT and database consulting work for Effective. It is agreed that all the income earned from the consulting contracts was deposited into the Effective bank account, which was in the joint names of the parties.
130After the separation, Elena carried on with her IT and database work through her new consulting company. Seva testified that after separation, he tried to get some contract work in IT but was not successful.
131It is agreed that Seva determined how each party would receive income from Effective. Seva testified that the consistent pattern was to declare dividends and divide the dividends on a roughly equal, 50/50 basis between him and Elena.
132For two years prior to separation, the parties engaged in income splitting, as follows:
a. In 2018, Elena’s Notice of Assessment indicates that she earned a total income of $69,216; Seva’s Notice of Assessment indicates that he earned a total income of $62,345, and D. reported a salary from Effective in the sum of $7,050 as an income splitting exercise, with the total income earned by Effective being $138,611.
b. In 2019, Elena’s Notice of Assessment indicates that she earned a total income of $78,000 and Seva earned dividend income of $71,000, with the total income earned by Effective being $149,000.
133After the date of separation, Seva’s income decreased to $18,352 in 2020. His income was $24,791 and $16,800 in 2022. Seva testified that currently he is building decks and helping a friend who is a builder with driving and delivering tools and materials. He is also renting out one of the rooms in the apartment to Ukrainian refugees to earn rental income. Other than that, he earns some interest income.
134Seva testified that he would like to work in the information technology business, but he needs to take some courses to upgrade his computer knowledge, which cost between $10,000 and $18,000, and that he does not have the funds to pay for these courses.
135In 2020, Seva testified that he received CERB income of $40,000, but when asked in cross-examination, Seva admitted that he did not use these funds to upgrade his computer skills because he understood the purpose of the CERB funds to be for Effective and not for him personally. As far as the Court knows, the CERB funds continue to exist and can be used by Seva to upgrade his computer skills.
Should Income be Imputed to Seva for Child Support Purposes?
136Elena seeks an order imputing income to Seva in the range of $75,000 to $100,000 a year for child support purpose for the following reasons:
a. Seva is very educated and knowledgeable about finances and can obtain work in the accounting industry.
b. Seva’s prior work experience is in the IT field where he was employed by technology companies.
c. Seva is skilled at investing and managing finances.
d. Seva is skilled at bookkeeping, accounting, invoicing and can obtain work in bookkeeping for small companies, comparable to the work he did for Effective throughout the marriage.
e. Seva is skilled at preparing income tax returns and in 2012 he went to court against the CRA and was successful; and
f. Seva has no physical or mental limitations making him unable to work.
137When determining whether to impute income to a payor, the court has regard to s.19 of the Federal Child Support Guidelines, S.O.R. /97-175 (“CSG”), which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.
138In Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 23, Gillese, J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed:
a. Is the spouse intentionally under-employed or unemployed?
b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
c. If no, what income is appropriately imputed in the circumstances?
139The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, at paras. 25-26, 29.
140“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning”: Drygala, at para. 32.
141In terms of what income is appropriately imputed in the circumstances, the court cannot arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala, at para. 33.
142I find that Seva is capable of working. He has skills in bookkeeping, accounting and investment arenas. He also has a history of being employed in the information technology industry.24 In these circumstances, I find that Seva should be imputed with an annual income equivalent to minimum wage from the date of separation onward in the sum of $32,000. Seva requires an opportunity to upgrade his technology skills and he shall have until January 1, 2024, to do so. Accordingly, commencing January 1, 2024, Seva shall be imputed with the higher of a) his actual income he is earning or b) an income of $45,000 a year for child support purposes.
Issue Four: What does Seva owe Elena as child support for the parties’ two children, retroactively and going forward?
143In making a child support order pursuant to s.15.1 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (“DA”), the court shall do so in accordance with the applicable guidelines: s.15.1(3).
144In a case where there is no previous order or agreement in place for child support, the court has jurisdiction under s.15.2 of the DA to grant retroactive relief, notwithstanding the absence of a clear indication to that effect in the section, provided the child was entitled was entitled to support during the period covered by the retroactive order: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.
145It is unreasonable for the payor parent to believe he or she was acquitting him/herself of his/her obligations toward his/her children: D.B.S., at para. 80.
146On an income of $32,000 a year, Seva’s Table child support obligation for two children under the CSG is $488 a month and for one child it is $273 a month.
147At the time of separation, D. was enrolled in full-time post-secondary education and, therefore, both D. and E. were children of the marriage as defined in the DA.
148I find that Seva had an obligation to pay Table child support for both D. and E. from the time of separation until D. completed his undergraduate degree.
149After D. completed an undergraduate degree in May 2022, he began taking an IT bootcamp course. It is unknown as to whether D. has been enrolled in full-time education once he graduated and, in the circumstances, at of June 2022, I find that D. was no longer a “child of the marriage” as defined by the DA. If D. resumes full-time post-secondary education in terms of a master’s degree, then the issue will have to be revisited, considering the parties’ means and what reasonable contribution D. may be able to make.
150E. remains a child of the marriage, being only in the second year of her university studies.
151I find that Seva owes Elena the following sum in retroactive child support from the date of separation to the current date in the total sum of $15,163, calculated as follows:
| Year | Income | Table Child Support | Total child support owing |
|---|---|---|---|
| 2020 | $32,000 | 8 months @ $488 for 2 children -starting May 1, 2020, onward | $3,904 |
| 2021 | $32,000 | 12 months @ 488 for 2 children | $5,856 |
| 2022 | $32,000 | 5 months @ 488 for 2 children 7 months @$273 for 1 child |
$2,400 $1,911 |
| 2023 | $32,000 | 4 months @273 for 1 child | $1,092 |
| Total amount of retroactive Table child support owing from May 1, 2020, to and including April 30, 2023 | $15,163 |
152Commencing May 1, 2023, and on the first day of each following month until January 1, 2024, Seva shall pay Table child support to Elena for E. in the sum of $273 a month based on an imputed income of $32,000.
153Commencing January 1, 2024, Seva shall pay Table child support to Elena for E. in the sum of $418 a month, based on an imputed income of $45,000 a year, unless his earned income is higher than $45,000.
154The parties shall exchange annual income disclosure on May 1 of each year in accordance with s.21(1) of the CSG, beginning on May 1, 2024, and adjust the child support accordingly.
Section 7 Expenses for the Children
What is Elena’s income for Child Support Purposes (s.7 expenses)?
155During Elena’s examination-in-chief, she testified that in 2020, she was working as an IT consultant for RBC through Effective, at an hourly rate of $73 for 37.5 hours a week. Once Elena incorporated her new company and continued her IT contract work through that company, she testified that her corporate year-end is April 30.
156Elena explained that the income for Effective was earned by her solely through her consulting contracts and Seva would decide how to declare and divide the dividend income as between the two of them and whether some income should be attributed toward the children to minimize the income taxes the family paid. For the period 2018 to and including 2020, the year of separation, Elena’s evidence is that her gross total income was as follows:
a. In 2018, she earned $69,216 as set out in her Notice of Assessment. Seva reported dividends of $62,345 and D. reported a salary from Effective in the sum of $7,050 as an income splitting exercise.25 Accordingly, the total income generated by Elena’s consulting work in 2018 through Effective amounted to $138,611.
b. In 2019, Elena initially filed an income tax return reporting dividend income of $731.13. She testified that she did this because she did not have the financial information, she needed from Seva who had typically filed her income tax returns. She later filed a T1 adjustment request which stated that the taxable amount of dividends she earned from Effective was $77,858.04 as reflected in her Notice of Reassessment.26
c. In 2020, Elena initially filed an income tax return showing that her Line 12000 income, meaning the taxable amount of dividends she received, was $34,593.37. Elena testified that she understood this figure did not accurately reflect all of her earnings.27 Since Seva was responsible for calculating the dividends each of them would earn, Elena had requested accounting information from Seva, which he initially refused to give her. Upon her receipt of the information, Elena filed a T1 Adjustment Request because she required information from Seva before she was able to properly file her income tax return. Her total dividends declared for 2020 amounted to $77,858.04. Elena testified that for the period after separation, from May 14, 2020, to April 30, 2021, the total revenue earned by Elena through Effective amounted to $83,884, which corresponds to her corporate year end. D. reported a salary from Effective in the sum of $10,500, making Elena’s total income earned in 2020 $88,358.04.
d. In 2021, Elena earned $84,953 as set out in her Notice of Assessment, comprised of employment income of $50,163.76, a taxable amount of dividends of $29,790.06 and employment insurance of $5,000. In 2021, D. reported as salary from Effective in the sum of $25,500, making Elena’s total income earned in 2021 $110,453.
e. In 2022, during her examination in chief, Elena testified that her total gross income for the period of January 1, 2022, to and including December 31, 2022, including vacation time and her Furlough income was $141,308.93. Elena explained that in 2022, there was a two-month period during which she was unemployed. She found alternate full-time work from another company and worked for that company for three months, after which RBC called and renewed her IT consulting contract.
f. In 2023, Elena testified that she believes her income will be $121,169.25.
157Section 5 of Schedule III of the CSG requires that the taxable amount of dividends received from taxable Canadian corporations be replaced by the actual amount of those dividends received by spouses. This section was not raised by either party. Typically, when a spouse received dividend income, adjustments are made to the calculation of his/her income pursuant to the CSG to adjust for the taxable amount to dividends to actual, and to adjust for the income tax gross-up on dividends. These adjustments are typically done and provided for in Schedule III of the CSG to reflect that dividend income is taxed at lower rates than ordinary employment or business income. In this case, neither party provided any evidence of the amounts of dividends from Canadian corporations he/she actually received, as opposed to those declared on each of their income tax returns for the year of separation (2020) or onward. Nor did either party offer any calculations that might have assisted the trial judge, such as what income tax rate ought to be used to gross-up the dividend income. In the absence of any evidence on the record to ascertain the actual amount of dividends each party received in 2020, or the actual amount of dividends Elena received in 2021 and 2022, along with no income tax rate information on which to calculate the gross-up of the dividend, I have no option but to rely on the dividends declared by Elena when determining her proportionate share of the children’s s.7 expenses.
158Elena’s testimony was inconsistent with the sworn financial statements she filed in this proceeding. For example, in Elena’s most recent financial statement, sworn on February 24, 2023, she swore that her income in 2021 was $121,169.25 and that her current income was estimated to be $103,102.80 in 2022. The supplementary records brief filed by Elena for the trial, which displays all the income earned by Effective in 2022, lists the total gross income for Effective to be $141,308.93. Where there is an inconsistency, I am using the higher of the incomes reported by Elena.
Section 7 Expenses
159Pursuant to the CSG, s.7 expenses, referred to also as “special or extraordinary expenses”, include expenses relating to child care expenses incurred as a result of employment, medical or dental insurance premiums attributable to a child; uninsured medical or dental expenses in excess of $100 for a child; extraordinary expenses for primary or secondary education for a child or other educational expenses to meet a child’s needs; and post-secondary educational costs or extraordinary expenses for extra-curricular activities: s.7(1) of the CSG.
160In determining whether a spouse is obliged to contribute to a s.7 expense, the court may consider the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation: s.7(1) of the CSG.
161In determining whether an expense is considered “extraordinary” for primary, secondary or post-secondary educational costs or for extra-curricular expenses, s.7(1.1) of the CSG provides as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
162Elena has claimed the following section 7 expenses for D. and E. since the date of separation:
a. In 2020, the children’s section 7 expenses totalled $17,540, comprised of,
i. D.’s university of Toronto tuition of $6,772.66.
ii. D.’s car insurance of $1,508.08.
iii. a computer desk for D. of $223.74.
iv. a computer chair for E. of $225.99.
v. an iPad for D. of $1,635.11.
vi. a computer chair for D. of $225.99.
vii. earphones for D. of $248.50.
viii. a laptop computer for E. of $1,783.11.
ix. a computer desk for E. of $346.92.
x. school and home office supplies of $399.96.
xi. cell phones at a cost of $1,502.62.
xii. uninsured dental expenses for E. of $2,099; and
xiii. uninsured dental expenses for D. of $569.
b. In 2021, the children’s section 7 expenses totalled $26,630.39, comprised of
i. both D.’s and E.’s university tuition of $8,115.50 and $8,262.76 respectively.
ii. a laptop and monitor for E. of $3,122.13.
iii. school and home supplies of $474.56.
iv. books for university of $646.99.
v. car insurance for D. of $3,442.77; and
vi. cell phones at a cost of $2,575.68.
c. In 2022, the children’s section 7 expenses totalled $26,704 comprised of
i. D.’s data engineering bootcamp of $11,700.
ii. E.’s university tuition of $8,132.37.
iii. E’s headphones of $298.
iv. D.’s computer of $2,383.03.
v. D.’s mousepad of $33.89.
vi. E.’s books of $84.69.
vii. D.’s car insurance of $2,220; and
viii. cell phones at a cost of $1,762.80.
d. In 2023, the children’s section 7 expenses to March 2023, have come to $1,329, comprised of uninsured dental expenses for D. of $689: cell phones at a cost of $293.80 and D.’s car insurance of $346.20.
163Seva agrees that the children’s post-secondary educational costs are legitimate s.7 expenses to which he must contribute. He submits, however, that the remainder of the other s.7 expenses claimed by Elena are not true s.7 expenses as defined under the CSG.
164I note that in her financial statement, Elena attached receipts for clothing for both children28, as well as two computers for E., being a laptop computer in 2020 of $1,783.11; and a laptop and monitor in 2021 of $3,122.13; wireless noise cancelling headphones29, and car insurance for D. (note that in 2021, D.’s car insurance was $3,442 for the year) claiming these costs as s.7 expenses.
165I am not persuaded that many of the expenses listed by Elena come within the definition of s.7(1) of the CSG. In my view, purchasing two new computers for a child successively in two years is not a legitimate s.7 expense. Further, I find that none of the clothing items, headphones or car insurance or cellular phone bills, qualify as a legitimate s.7 expense to which Seva must contribute.
166Using the best evidence on the record for Elena’s income for 2020 to and including 2023, I have set out below each party’s respective income in each calendar year and his/her proportionate responsibility for the children’s s.7 expenses:
| Year | Elena’s Income | Seva’s Income | Proportionate share of combined incomes |
|---|---|---|---|
| 2020 | $88,358.04 (Note this includes the income reported by D.) |
$32,000 (My finding that Seva be imputed with minimum wage income) |
$120,358.04 Elena’s proportionate share = 73.4% Seva’s proportionate share = 26.6% |
| 2021 | $110,453 (Note this includes the income reported by D.) |
$32,000 (Same as above) |
$132,453 Elena’s proportionate share = 83.3% Seva’s proportionate share = 16.7% |
| 2022 | $141,308.93 | $32,000 (Same as above) |
$173,308.93 Elena’s proportionate share = 81.5% Seva’s proportionate share = 18.5% |
| 2023 | 121,169.25 | $32,000 | $153,169.25 Elena’s proportionate share = 79.1% Seva’s proportionate share = 20.9% |
167In terms of the s.7 expenses claimed by Elena on behalf of the children for which she seeks an order that Seva contribute, I find that the expenses related to the children’s post-secondary education (s.7(1)(e)), uninsured medical and dental expenses (s.7(1)(c)), university books and reasonable computer expenses for school (s.7(1)(e)) are legitimate s.7 expenses as they fall within the subsections of s.7(1) of the CSG. I am not persuaded that the expenses Elena incurred for or on behalf of the children for an additional computer, when one was purchased for the same child a year earlier, clothing, electronic equipment, car insurance and cellular phone bills are necessary in relation to either child’s best interests nor are they reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation. As a result, Seva will only be required to contribute to the s.7 expenses incurred by Elena that fall within the legitimate s.7 expense category.
Are D.’s database engineering bootcamp course fees a s.7 expense?
168In terms of D.’s database engineering bootcamp, in which he is currently enrolled at a cost of $11,700 for the year, Seva took the position at trial that D. is no longer a “child of the marriage” as defined in the DA, and is therefore no longer entitled to child support, since he completed one undergraduate university degree. This legal issue was not addressed by Elena at trial. For example, Elena did not argue that D. was unable to withdraw from parental charge and, therefore, remains a child of the marriage and eligible to the child support provisions of the DA. Further, Elena did not argue that the data engineering bootcamp course fees are tantamount to post-secondary educational expenses.
169Section 3(2) of the CSG provides that where a child to whom a child support order relates is the age of majority or over, the amount of an order for child support is either the Table amount under the guidelines as if the child were under 18 years of age, or if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of that child.
170D. graduated from the University of Toronto in May 2022. Since then, he has been living with Elena and enrolled in a database engineering bootcamp course. No evidence was led as to whether this course is a one-year or two-year course, but the receipt submitted by Elena confirms that the annual tuition was $11,700 for the 2022-2023 year. There is no evidence on the record as to whether D. has plans to enrol in a further graduate degree at university or college. The Court is not aware if D. worked between May and September 2022 or whether he will be working between May and September 2023. The Court is not aware of how many courses D. was taking when he was enrolled in this database engineering bootcamps and/or whether it was a full-time or part-time endeavour.
171Although not referred to by Elena, the Ontario case of Menegaldo v. Menegaldo, 2012 ONSC 2915, sets out a comprehensive list of factors identified in the case law as relevant to the eligibility for child support of adult children attending post-secondary education. Chappel, J. set out these factors at para. 157,
a. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
b. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
c. The ability of the child to contribute to their own support through part time employment.
d. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
e. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
f. The child's academic performance, and whether the child is demonstrating success in the chosen course of studies.
g. The age, qualifications and experience of the child.
h. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
i. Whether the child is performing well in the chosen course of studies.
j. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
k. The means, needs and other circumstances of the parents and the child.
l. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.
172My analysis of the Menegaldo factors as they relate to D. is as follows:
a. D. was enrolled in database engineering bootcamp for this past academic year. The court is unaware as to whether this was a one-year or two-year course; or whether this course required D. to attend part-time or full-time.
b. The court is unaware of D.’s plans to attend school as of September 2023.
c. The Court is not aware of whether D. had any bursaries, scholarships or student loans.
d. While it is common for Courts to conclude that a child should have summer employment to help contribute toward his education and upbringing (Rebenchuk v. Rebenchuk, 2007 MBCA 22, 35 R.F.L. (6th) 239, at paras. 53-54), the Court is not aware as to whether D. had any part-time or full-time employment during the 2022-2023 academic year.
e. The Court has no evidence on record as to whether D.’s enrollment in the database engineering bootcamp will lead him to be able to enter the work force.
f. The Court is not aware of D.’s further education plan, if any.
g. The Court has no information about D.’s academic performance or performance at this bootcamp course.
h. The Court has no information about D.’s aptitude, abilities or commitment to this database bootcamp.
173On the limited evidence the Court has on record, I am not persuaded that D. remains a child of the marriage as defined in the DA, rendering him entitled to receive child support once he graduated from university in May 2022. It is reasonable for the Court to conclude that D. enrolled in the database engineering bootcamp to gain and/or improve his skills in this field and to become employable. There is no information as to whether there were any discussions between D. and Seva about this plan, but it is safe to conclude that no such discussion took place, given that D. and Seva have been estranged. The degree of closeness or lack thereof between Seva and D. does not disentitle D. to child support and s.7 expenses. However, given Seva’s lack of employment, I do not find that it is reasonable for him to contribute to the cost of the database engineering bootcamp tuition as a s.7 expense. If D. decides to enrol in further post-secondary education and, therefore, resumes his status as a child of the marriage as defined in the DA, then the issue of Seva’s contribution toward these costs as a s.7 expense can be addressed at that time.
174According, I find that Seva shall pay his retroactive proportionate share of the following s.7 expenses in each year from the date of separation onward in the total sum of $7,534.54, calculated as follows:
a. For 2020, Seva shall pay 26.6% of D.’s University of Toronto tuition of $6,772.66; a laptop computer for E. of $1,783.11; school and home office supplies of $399.96; uninsured dental expenses for E. of $2,099; and uninsured dental expenses for D. of $569, being a total of $3,091.91, of the total of these collective expenses of $11,623.73.
b. For 2021, Seva shall pay 16.7% of both D.’s and E.’s university tuition of $8,115.50 and $8,262.76 respectively; school and home supplies of $474.56; books for university of $646.99, being a total of $2,922.47, of the total of these collective expenses of $17,499.81.
c. For 2022, Seva shall pay 18.5% of E.’s university tuition of $8,132.37; E.’s books of $84.69, being a total of $1,520.16, of the total of these collective expenses of $8,217.06.
175Commencing in 2023, Seva shall pay 18.5% of E.’s university tuition, school-related expenses and uninsured medical and dental expenses. If, when annual income disclosure is exchanged in May 2024, Seva’s proportionate contribution toward E.’s s.7 expenses should have been higher or lower, that adjustment will be paid by Seva, or he will be credited over a three-month period.
176Starting in 2024, Seva’s annual income is imputed to be the higher of $45,000 or his actual income earned and, as a result, the parties’ proportionate responsibility toward the children’s s.7 expenses will have to be recalculated at that time.
Issue Five: Does Seva have entitlement to Spousal Support?
177Seva is seeking spousal support from Elena. When asked by the Court, Seva could not identify the basis of his spousal support entitlement. I find that the only basis on which Seva has entitlement to spousal support from Elena is on a needs basis. Seva does not have a compensatory claim for spousal support, in my view.
Seva’s Position on Spousal Support
178Seva proposed that the court divide Elena’s annual income into thirds, that he receive one-third and she and the children keep the remaining two-thirds.
179Seva also proposed that if Elena was ordered to pay him for 50% of the precious metals and cash she stole from him, he would be prepared to release Elena from any spousal support claim he has against her.
180There is no basis in law for Seva’s position that Elena’s income be divided in the manner in her proposes.
181If Seva has entitlement to spousal support, then the quantum of spousal support Elena would have to pay Seva is to be in the amount as the courts thinks reasonable: s.15.2(1) of the DA.
182In making any order for spousal support, the court must consider the condition, means, needs and other circumstances of each spouse, including a) the length of time the spouses cohabited; b) the functions performed by each spouse during cohabitation; and c) any order agreement or arrangements relating to support of either spouse: s.15.2(4) of the DA.
183The objectives of a spousal support order should,
a. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.
b. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage
c. Relieve any economic hardship of the spouses arising from the breakdown of the marriage, and
d. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: s.15.2(5).
184Given that I have found Elena retained the cash and precious metals and owes Seva 50% of these funds and given that Elena is primarily responsible for E. and D. such that she will shoulder most of their expenses, I dismiss Seva’s spousal support claims as against Elena.
Disposition
185Order to go as follows:
Child Support
a. Pursuant to s.19(1) of the Child Support Guidelines, S.O.R./97-175, the respondent shall be imputed with an annual income of $32,000 for 2023.
b. Pursuant to s.19(1) of the Child Support Guidelines, S.O.R./97-175, commencing on January 1, 2024, the respondent shall be imputed with the higher of a) an annual income of $45,000 or b) the actual income he earns, for child support purposes. He shall pay child support for E. accordingly.
c. Pursuant to s.15.1 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), the respondent shall pay the applicant the following sums, which shall be set off against the equalization payment the applicant owes the respondent:
i. Retroactive Table child support in the sum of $15,163 for the period May 1, 2020, to and including April 30, 2023.
ii. Retroactive s.7 expenses in the sum of $7,534.54 for the period January 1, 2020, to and including, December 31, 2023.
d. Pursuant to s.15.1 of the Divorce Act, commencing May 1, 2023, and on the 1st day of each following month until and including December 1, 2023, the respondent shall pay the applicant child support for the child E. in the monthly sum of $273, based on his imputed income of $35,000. The payments shall be made on the 1st day of each month until further order or agreement of the parties.
e. Pursuant to s.15.1 of the Divorce Act, commencing January 1, 2024, and on the 1st day of each following month until further agreement of the parties or court order, the respondent shall pay the applicant child support for the child, E., in the monthly sum of $418 a month, based on his imputed income of at least $45,000. The payments shall be made on the 1st day of each month.
f. Pursuant to s.7 of the Child Support Guidelines, commencing January 1, 2023, the respondent shall pay 18.5% of E.’s university tuition, school related expenses, such as books, and uninsured medical and dental expenses as s.7 expenses, provided the applicant obtains the respondent’s consent to the s.7 expenses in advance of incurring same.
g. Pursuant to s.21 of the Child Support Guidelines, the parties shall exchange a copy of his and her personal income tax returns on May 1 in each year, beginning on May 1, 2024, along with a copy of every notice of assessment and reassessment; the financial statements for his/her business, and a statement showing a breakdown of all salaries, wages, management fees or other payments of benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length; the financial statements of the corporation, and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation.
Property Division
h. In satisfaction of all property division claims the respondent may have against the applicant under Part I of the Family Law Act, R.S.O. 1990, c.F.3 and the common law and in satisfaction of all claims the applicant has against the respondent on account of post-separation adjustments, the applicant shall pay the respondent an equalization payment (“EP”) of $233,363.02 less the retroactive child support in the adjusted sum of $210,665.48, calculated as $233.363.02 less,
i. The sum of $15,163 in satisfaction of the respondent’s arrears of table child support for the period May 22, 2020, to and including April 30, 2023.
ii. The sum of $7,534.54 in satisfaction of the respondent’s arrears of s.7 expenses for the children for the period January 1, 2020, to and including December 31, 2023.
i. The respondent’s spousal support claim against the applicant is hereby dismissed.
j. SDO to issue.
k. The parties should endeavour to resolve the issue of costs. If they are unable to do so, the applicant shall serve and file costs submissions of no more than 4 pages (double spaced, 12-point font), not including a Bill of Costs and/or Offers to Settle within 15 days of the release of this Endorsement. The respondent shall serve and file costs submissions of no more than 4 pages (double spaced, 12-point font), not including a Bill of Costs and/or Offers to Settle within 7 days of receipt of the applicant’s costs. Reply costs, if any, shall be limited to one page in writing and shall be served and filed within 5 days of receiving the responding costs submissions.
______________________ M. Kraft, J.
Released: May 2, 2023
Footnotes
- After being released from prison, Seva’s bail conditions, among other things, required him to reside with his surety, Veronica Bak; to have no contact with Elena or D.; to attend for counselling with a psychiatrist at CAMH; and to surrender his PAL licence to police within 72 hours. On June 29, 2020, Seva’s bail conditions were varied to allow Seva to reside with his surety at the matrimonial home apartment since the children and Elena were no longer living there, the requirement that he attend for counselling at CAMH was amended to at the direction of Seva’s family doctor to allow him to attend an assessment for mental health issues and take such counselling as necessary in the opinion of the assessing physician of his surety. The house arrest conditions were rendered unnecessary
- Exhibit #36 at Trial: Rental Agreement for Elena’s new condominium.
- Exhibit #37 at Trial: Invoice from XC, dated May 20, 2020, purchase 30 one-oz. silver.
- Exhibit #26: Willowdale Subaru Offer to Lease for Elena confirming she made a down payment of $10,026.96 on July 20, 2020.
- Note that Seva started a Small Claims Court action against Mr. Wolf 2 years after the 2020 incident. In the Statement of Claim, Seva stated that in the bag was 250 ounces of Silver in the form of 1 oz. silver coins/bars, the value of which was $9,750. Mr. Wolf defended the claim, but it has not yet been resolved.
- Exhibit #25 at Trial: Supplementary – Get Belongings Occurrence Report, dated May 30, 2020.
- Ms. Milovanova swore an affidavit in chief, dated October 29, 2021 (Exhibit #60 at trial) and she was examined by both parties at trial.
- Exhibit #32 at trial: E.’s will say statement.
- Exhibit #42 at trial: Police photographs taken of the contents of the safe in Seva’s bedroom on May 22, 2020.
- Exhibit #15 at trial: Police photographs taken on May 22, 2020, including pictures of the inside of the safe and other pictures of the contents in Seva’s bedroom.
- Veronica swore an affidavit on November 22, 2021, in this proceeding, regarding the two smaller safes and testified at trial.
- Lyudmyla Milovanova swore an affidavit on October 29, 2021, regarding the two smaller safes in this proceeding and testified at trial.
- Exhibit #45 at trial, pictures of Seva’s grandmother’s vase right side up and lying sideways in front of the space under the bed in Seva’s bedroom.
- Ms. Milovanova swore an affidavit in chief, dated October 29, 2021.
- Exhibits #2 and #3 at Trial.
- Exhibit #18 at trial: Schedule of precious metals in the apartment as at the valuation date.
- Exhibit #2 at Trial.
- Exhibit #3 at Trial.
- Exhibit #2 at trial. Elena deposes in her sworn financial statement that after the V-date, she removed some of the contents and Seva kept most of the contents.
- Note this is a higher value for the Trek bicycles than what is listed on Elena’s sworn financial statement.
- Exhibit #19 at trial.
- Exhibit #20 at trial.
- Exhibit #21 at trail.
- In 1999, Seva was employed by EPod Corporation as a Data Base Administrator, earning $62,000 a year plus stock options (Exhibit #52). In 2000, Seva was employed by MDS Inc. as a Senior Software Development, earning $70,000 a year (Exhibit #53).
- Exhibit #13 at trial: D.’s Notices of Assessment, for 2018 to 2021.
- Exhibit #8 at trial: Elena’s 2019 T1 Adjustment Request and her Notice of Reassessment.
- Exhibit #11 at trial: Elena’s 2020 income tax return.
- Including such items as a bikini for E. totalling $254.24.
- At a cost of $398.