COURT FILE NO.: FC-12-2425
DATE: 2023/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HÉLÈNE GEORGETTE BOYER
Applicant
– and –
MICHAEL BROWN
Respondent
Self-represented Applicant
Self-represented Respondent
HEARD: May 9-13 and 16-17, and September 7-8, 2022)
REASONS FOR DECISION
(Ruling No. 2)
Corthorn J.
Background
[1] Hélène Boyer and Michael Brown married in June 1995. They have three children: Stephanie (D.O.B., November 28, 1995); Olivier (D.O.B., March 6, 1997); and David (D.O.B., June 22, 1999). Mr. Brown has an adult son, Mark, from a previous relationship.
[2] From June 1997 until the spring of 2008, the family lived in a home on Des Sapins Gardens in Orleans. In the spring of 2008, Ms. Boyer and Mr. Brown purchased another home in Orleans – at 483 Keith Crescent (“the matrimonial home”). There were challenges in the marriage even before the parties moved to the matrimonial home. The family resided in the matrimonial home until late 2011.
[3] The parties executed a separation agreement in November 2011 (“the Agreement”). Mr. Brown moved out of the matrimonial home in December 2011.
[4] Ms. Boyer commenced this application in 2012. She originally sought to address spousal support, child support, decision-making (referred to at the time as “custody”), parenting time (“access”), and equalization of net family property. With the passage of time since the application was commenced, several issues raised in the application no longer require determination by the court. For example,
• the parties’ children are all adults. Decision-making for and parenting time with the children are not in issue; and
• Ms. Boyer has withdrawn her claim for spousal support.
[5] The parties disagreed as to the date of separation. Following a four-day trial in the fall of 2018, the court determined the date of separation to be August 31, 2011 (Boyer v. Brown, 2019 ONSC 3011 – “Ruling No. 1”).
[6] Issues related to property remain to be determined. Mr. Brown seeks to set aside the term of the Agreement which required Ms. Boyer to pay him $117,000 for his interest in the matrimonial home. Ms. Boyer abandoned her request for that term of the Agreement to be set aside. She requests, however, that the costs associated with disposition of the matrimonial home in 2018 be allocated equally to the parties.
[7] Equalization of net family property must be determined. Various line items about which the parties disagree or for which only one of the parties introduced evidence must be addressed. Two examples of items about which the parties disagree are (a) the treatment of the equity in a home purchased by Ms. Boyer in 1993 and in which the parties lived until 1997; and (b) the value of Mr. Brown’s RRSP at the date of marriage.
[8] Ms. Boyer asks the court to order that Mr. Brown reimburse her for 50 per cent of the expenses she incurred in the fall of 2011. Those expenses relate to a home which Ms. Boyer had arranged to purchase based on Mr. Brown’s stated intention, at the time, to remain in the matrimonial home.
[9] Child support and Section 7 expenses must be addressed. Ms. Boyer asks the court to impute income to Mr. Brown. In support of that request, Ms. Boyer relies on lack of disclosure, delayed disclosure, unreasonable business expenses claimed, deliberate shielding of personal income, and intentional underemployment.
[10] I will deal with the issues in the order in which they are discussed in the preceding paragraphs. Before addressing the substantive issues, I will first consider the quality of the evidence before the court.
The Evidence
[11] Both parties were self-represented at Parts 1 and 2 of the trial. The manner in which they presented their respective cases was significantly different. Ms. Boyer informed the court that she took several weeks away from her work to prepare for Part 2 of the trial. The level of detail in both her oral and documentary evidence reflects extensive preparation.
[12] Mr. Brown was not well-prepared. Mr. Brown’s case evolved throughout Part 2 of the trial. Mr. Brown changed his position on certain matters from his opening statement to closing submissions. In some instances, Mr. Brown took a specific position or advanced a claim for the first time in his closing submissions.
[13] Despite Ms. Boyer’s preparation and because of Mr. Brown’s lack of preparation, as the trial judge, I was faced with what I would describe as a fluid case including on the issue of equalization of net family property. For example, there are inconsistencies between Mr. Brown’s April 2022 Form 13 Financial Statement (Exhibit 102) and his position on equalization of net family property.
[14] Parts 1 and 2 of the trial of this action consumed 13 days of trial time. Given the parties’ very different approaches to their respective obligations as litigants, including with respect to preparation for trial, many issues could not be addressed with the efficiency that would have been possible if they had both devoted the requisite attention to the proceeding over time.
[15] The Court of Appeal recently reflected on the challenges faced by trial judges in situations of the kind faced by the court in the matter before this court. In Crozier v. Cusack, 2023 ONCA 178, the determination of family litigation generally was addressed as follows: “ Rules 2(2)-(4) of the Family Law Rules, O. Reg. 114/99 require the court to deal with cases justly by ensuring that the process is fair, saving time and expense, dealing with the case in a way that is appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases.”
[16] I am mindful of that approach in determining the numerous issues between Ms. Boyer and Mr. Brown. I turn next to discuss the parties as witnesses.
[17] Ms. Boyer presented her evidence in an organized manner. Her oral testimony was well-supported by documentary evidence. In addition, Ms. Boyer prepared charts and other summary documents (some of which were made lettered exhibits) in an effort to assist in the presentation of her case. The manner in which Ms. Boyer presented her evidence reflected the detailed documents she maintained from the date of separation forward.
[18] Mr. Brown acknowledged that he is not good at record-keeping or maintaining documents. Mr. Brown essentially asks the court to give him a ‘pass’ for his shortcomings in that regard. As a litigant in a family proceeding of which he has been aware since 2012, Mr. Brown is not entitled to such a pass.
[19] Ms. Boyer was forthright and did not evade answering questions in cross-examination. Mr. Brown, on the other hand, lacks credibility – specifically regarding his income, the corporations in which he had or has an interest, and his personal financial situation. For example, Mr. Brown portrayed himself as unaware as to the financial operation of a company of which he was, at a time, the President. As another example, Mr. Brown has a holding company in which his current partner also has a financial interest. Yet, Mr. Brown attempted to portray that he does not really understand what a holding company is. Mr. Brown also had the temerity to suggest in closing submissions that every expense upon which Ms. Boyer relies in support of her claim related to Section 7 expenses is “false”.
[20] For those reasons, where the evidence of the parties is contradictory, unless otherwise specified, I prefer the evidence of Ms. Boyer.
[21] I begin consideration of the substantive issues by determining Mr. Brown’s request to set aside the term of the Agreement relevant to his interest in the matrimonial home at the date of separation.
Issue No. 1 – The Matrimonial Home
a) Is the term of the Agreement requiring Ms. Boyer to pay $117,000 to Mr. Brown to be set aside?
▪ Fair Market Value of the Matrimonial home in 2011
[22] In the spring of 2008, the parties purchased the matrimonial home. It is undisputed that the purchase price was $621,332.19. In the Agreement, the parties identified April 15, 2008, as the date of separation. In Ruling No. 1, the court found the date of separation to be August 31, 2011. The parties’ respective interests in the matrimonial home are valued as of that date.
[23] Both parties rely on the evidence of Joel Beauregard, an appraiser with almost two decades of experience. Mr. Beauregard was called as a witness by Mr. Brown.
[24] In his career, Mr. Beauregard has carried out between 8,000 and 9,000 appraisals. Those appraisals include the fair market value of detached, single-family homes. Mr. Beauregard highlighted that he has, in the ten most recent years of his career, found himself in the “lane” of doing appraisals solely for the purpose of matrimonial litigation.
[25] Ms. Boyer did not dispute Mr. Beauregard’s qualifications. The court qualified Mr. Beauregard to give opinion evidence as to the fair market value of the matrimonial home in 2011.
[26] Mr. Beauregard was retained by Mr. Brown in 2021. The matrimonial home was sold in 2018. As a result, Mr. Beauregard did not have an opportunity to personally inspect the property as he typically would when carrying out an appraisal. Mr. Beauregard relies on (a) information and documents provided to him by Mr. Brown; (b) information available from MPAC[1] as of August 2021; and (c) information and photographs available from the 2018 MLS listing, when the matrimonial home was sold.
[27] Based on that information and those documents, Mr. Beauregard’s opinion is that a fair market value of the matrimonial home in 2011 is $700,000.
[28] Ms. Boyer takes issue with two factors considered by Mr. Beauregard to support that appraised value. Ms. Boyer cross-examined Mr. Beauregard as to his opinion based on a home that (a) is smaller in square footage than he understood the matrimonial home to be, and (b) has an unfinished basement as opposed to a partially finished one.
[29] Mr. Beauregard testified that he relies on 3,867 for the square footage of the matrimonial home. That figure comes from MPAC. Mr. Brown did not provide Mr. Beauregard with the floor plans for the matrimonial home, prepared by the builder Valecraft. Those floor plans showed a total square footage of 3,433. For a home of that size, Mr. Beauregard would reduce the appraised value by $20,000 to $25,000 from the $700,000. That reduction is based on a value of roughly $50 per square foot.
[30] There is no evidence to suggest that the square footage of the matrimonial home in 2011 differed materially from the square footage shown in the builder’s floor plans. I find it reasonable to reduce the appraised value by $20,000 to $25,000.
[31] Mr. Beauregard understands that, as of 2011, the basement of the home was partially finished. The parties disagree as to the state of the basement in 2011. Ms. Boyer relies on invoices for materials purchased from 2013 to 2017 as evidence of the timing of work done on the house, including on the basement. Mr. Brown’s evidence is that the basement was partially finished as of 2011. He did not, however, have any photographs from the relevant period or invoices as evidence of materials purchased for the work done on the basement between 2008 (when the home was purchased) and 2011.
[32] I find that the basement was unfinished as of 2011. Mr. Beauregard acknowledged that an adjustment downward, from $700,000, is required to account for the actual condition of the basement in 2011. Ms. Boyer asks the court to reduce the appraised value by $10,000 for the condition of the basement.
[33] In summary, Ms. Boyer asks the court to reduce the appraised value of $700,000 by a total of $30,000 to $35,000. She relies on the mid-point between $665,000 and $670,000 and rounds the mid-point value up to the nearest thousand-dollar figure. Ms. Boyer asks the court to find that the matrimonial home had a fair market value of $668,000 in 2011.
[34] Mr. Beauregard highlights three features of the property which, in his opinion, contribute to the value of the home. First, the lot is quite a bit larger than the lots for other properties in the area. Second, he understands the house to be larger than other houses in the area. Third, the lot backs onto a nature conservation area; there is no neighbouring home at the rear of the property. Mr. Beauregard testified that these three features place the value of the matrimonial home at the upper end of the range for similar homes.
[35] I consider the first and third feature together with the reductions for the overall square footage and an unfinished basement. Weighing those factors, I find that the fair market value of the matrimonial home is $675,000 at the date of separation.
▪ The Parties’ Respective Interests in the Matrimonial Home
[36] Following the release of Ruling No. 1, Ms. Boyer filed a Form 13C, Comparison of Net Family Property Statements. That document is dated March 2022. Both parties rely on $432,624 as the amount owing on the mortgage as of the date of separation. When that amount is subtracted from the fair market value of $675,000, the equity in the matrimonial home is $242,376.
[37] Based on equity of $242,376, each party’s interest in the matrimonial home is $121,188. That amount is $4,188 more than Mr. Brown was paid pursuant to the Agreement. That monetary difference is not the only factor considered to determine Mr. Brown’s request to set aside the relevant term of the Agreement. The court must also consider the circumstances in which the Agreement was reached and executed by the parties.
▪ Execution of the Agreement in November 2011
[38] When the parties were before the court in 2018 – for Part 1 of the trial – they gave evidence and made submissions on the issue of setting aside the term of the Agreement which required Ms. Boyer to pay Mr. Brown $117,000 for his interest in the matrimonial home. Mr. Brown alleges that, when he signed the Agreement, he did so under duress.
[39] The evidence does not support a finding that Mr. Brown signed the Agreement under duress. For example, in cross-examination on October 11, 2018, Mr. Brown testified, “If I thought it wasn’t in our best interests, I wouldn’t have signed the [Agreement].” It was also Mr. Brown’s evidence in cross-examination that the anxiety he was feeling in November 2011 – around the time the parties executed the Agreement – related to the parties’ daughter and not to the Agreement.
[40] I also take into consideration Ms. Boyer’s uncontradicted evidence regarding how she ended up remaining in the matrimonial home. In that regard, I make the following findings:
• Mr. Brown originally intended to remain in the matrimonial home;
• Based on that approach to the parties’ separation, Ms. Boyer found alternate accommodation. She put a down payment on and obtained a pre-approved mortgage to purchase a home;
• A draft separation agreement was prepared, which reflected Mr. Brown remaining in the matrimonial home. Mr. Brown would purchase Ms. Boyer’s interest in the home. Ms. Boyer would apply the funds received from Mr. Brown towards the purchase of her home;
• The draft separation agreement was never signed. Mr. Brown ultimately changed his mind about remaining in the matrimonial home; and
• Without the benefit of her equity in the matrimonial home, Ms. Boyer was unable to purchase the home on which she had made a down payment. Ms. Boyer had no choice but to stay in the matrimonial home and pay Mr. Brown for his equitable interest in it.
[41] I find that (a) Mr. Brown dictated what would happen regarding the matrimonial home, and (b) he was not under duress when he signed the Agreement.
▪ Conclusion – Term of Agreement Not Set Aside
[42] Mr. Brown’s request to set aside the term of the Agreement as to the amount to be paid by Ms. Boyer to purchase Mr. Brown’s equitable interest in the matrimonial home is dismissed.
b) Is Ms. Boyer entitled to reimbursement of 50 per cent of the real estate commission paid when the matrimonial home was sold in 2018?
[43] It is undisputed that the matrimonial home was sold by Ms. Boyer, in 2018, for $770,000. Ms. Boyer’s unchallenged evidence is that the disposition costs incurred included four per cent of $770,000. Ms. Boyer paid that amount to her real estate agent.
[44] Ms. Boyer asks that the court allocate one-half of the disposition costs to each of the parties, based on the value of the matrimonial home determined under Issue No. 1 above.[2]
▪ The Positions of the Parties
[45] Ms. Boyer’s position is that allocation of the disposition costs is called for because it was always her intention to sell the matrimonial home. Mr. Brown’s position is that, at the time of separation, Ms. Boyer did not intend to sell the matrimonial home. Mr. Brown submits that Ms. Boyer ultimately had to sell the matrimonial home because she found herself in personal financial difficulties.
▪ Analysis
[46] For the following reasons, I find that as of 2011, when the parties signed the Agreement, it was Ms. Boyer’s intention to sell the matrimonial home in 2017.
[47] First, the parties’ youngest child, David, would be graduating from high school and commencing post-secondary education in 2017. He would potentially be moving out of the matrimonial home – leaving Ms. Boyer with a home that was larger than a single adult or a couple (i.e., with her new partner) would require.
[48] Second, based on the evidence as a whole, I draw an inference and find that, because it was not Ms. Boyer’s first choice to remain in the matrimonial home on separation, it was reasonable for her to plan to move once stability for one or more of the children was no longer a factor in where she would live.
[49] Third, given the challenges in the parties’ relationship when they both resided at the matrimonial home (2008 – 2011), I draw an inference and find that it was reasonable for Ms. Boyer to plan to move on from that period in her life, including by selling the matrimonial home.
[50] Ms. Boyer’s intention, even as of 2011, to sell the matrimonial home in 2017 does not, in and of itself, entitle her to reimbursement of 50 per cent of the disposition costs incurred.
[51] It was incumbent upon Ms. Boyer to address that intention when negotiating the terms of the Agreement. It was open to her to require that a term be included which provides for reimbursement of 50 per cent of the eventual disposition costs. The Agreement does not include such a term. I also note the Agreement states that both parties had the opportunity to obtain independent legal advice before signing the document (para. 3.1).
[52] Ms. Boyer abandoned her request for an order setting aside the term pursuant to which she was required to pay Mr. Brown $117,000 for his interest in the matrimonial home. Given the abandonment of that request and the lack of a term in the Agreement addressing disposition costs, Ms. Boyer is not entitled to reimbursement of the disposition costs incurred approximately six years after the date of separation.
▪ Conclusion – Costs of Disposition of the Matrimonial Home
[53] Ms. Boyer’s request for an order requiring Mr. Brown to reimburse her for 50 per cent of the disposition costs associated with the 2018 sale of the matrimonial home is dismissed.
c) The Matrimonial Home and Equalization of Net Family Property
[54] The findings made under Issue No. 1 are independent of the inclusion of the matrimonial home in the equalization of net family property. The fair market value of and the amount owed on the mortgage for the matrimonial home, as of the date of separation, are addressed in the equalization of net family property.
Issue No. 2 – Equalization of Net Family Property
[55] For Part 2 of the trial, the parties and the court relied on a Form 13C, Comparison of Net Family Property, prepared by Ms. Boyer and dated April 2022 (Exhibit “N”). In addition, the court reviewed the parties’ respective Form 13 Financial Statements dated April 2022 (Exhibits 102 and 105)
[56] The parties agree on the value assigned to many assets and liabilities relevant to equalization. The items for which a determination by the court is required are listed below:
a) The value of the household goods and furniture in Ms. Boyer’s possession at the date of separation;
b) The value of and indebtedness related to a 2008 Honda Odyssey in Ms. Boyer’s possession at the date of separation;
c) The value of the 2004 Honda Odyssey EX-L in Mr. Brown’s possession at the date of separation;
d) The value of general household items owned by the parties at the date of marriage;
e) The value of a vehicle owned by Ms. Boyer at the date of marriage;
f) The value of a GIC held by Ms. Boyer at the date of marriage;
g) Pensions - the value, at the date of separation, of Mr. Brown’s RRSP with Edward Jones (including the 20 percent notional disposition cost); the value of Mr. Brown’s “Nortel” pension at the date of marriage; the value of Mr. Brown’s RRSP at the date of marriage; and disposition costs for RRSPs held at the date of marriage; and
h) The parties’ respective ownership interests in and the disposition costs for 9 Blue Meadow Way – the home in which the parties lived before they purchased the home on Des Sapins Gardens.
[57] I will deal with each of these items in the order in which they are listed.
a) Household Goods and Furniture in Ms. Boyer’s Possession at the Date of Separation
[58] Ms. Boyer allocates $5,000, and Mr. Brown $7,000, to this item. The parties did not address this item in their respective testimony and closing submissions. Absent evidence on the subject and given its modest impact of this item on equalization, I split the difference between the parties’ respective values.
[59] I find that the value of Ms. Boyer’s household goods and furniture at the valuation date is $6,000.
b) 2008 Honda Odyssey in Ms. Boyer’s Possession at the Date of Separation
[60] Ms. Boyer values the vehicle at $20,000 and Mr. Brown at $22,000. Ms. Boyer’s evidence is that the vehicle was purchased only in July 2011, as a result of which the amount owing on the vehicle as of the date of separation was greater than the value of the car ($22,300). Mr. Brown allocates nothing towards indebtedness on the vehicle.
[61] Absent much, if any, evidence on the line items and given their modest impact on equalization, I treat the ownership and the indebtedness as ‘a wash’ and value each at $22,000.
c) 2004 Honda Odyssey EX-L in Mr. Brown’s Possession at the Date of Separation
[62] Ms. Boyer relies on a Red Book value of $9,475 for this vehicle (Exhibit 72). The Red Book value for the period from July 1, 2011 to September 30, 2011 (i.e., the period in which the valuation date falls) ranges from $7,475 to $9,475.
[63] Mr. Brown relies on a value of $1,500. He did not provide the court with an independent valuation or any other evidence to support that value.
[64] This court has historically accepted the Red Book as “a standard in the automobile sales industry”: Hunter v. Hunter, 2005 CanLII 22139 (Ont. S.C.), at para. 10. There is, however, no evidence to assist the court in determining specifically where, in the Red Book range, the value of the 2004 Honda vehicle falls. Absent evidence on that subject and given the modest impact on equalization of situating the value within the relevant range, I split the difference between the high and low ends of the range.
[65] I find that the value of the 2004 Honda Odyssey EX-L in Mr. Brown’s possession at the date of separation is $8,475.
d) General Household Items Owned by the Parties at the Date of Marriage
[66] Ms. Boyer allocates $2,000, and Mr. Brown $1,000, to the general household items owned by Ms. Boyer at the date of marriage. The parties did not address this item in their respective testimony and closing submissions. Absent evidence on the subject and given its modest impact on equalization of situating the value of these goods within that $1,000 range, I split the difference between the high and low ends of the range. I find that the value of the household goods owned by Ms. Boyer at the date of marriage is $1,500.
[67] Ms. Boyer allocates $1,000 and Mr. Brown $5,500 to the general household items owned by Mr. Brown at the date of marriage. For the same reasons given in the preceding paragraph, I find that the value of the household goods owned by Mr. Brown at the date of the marriage is $3,250.
e) Vehicle Owned by Ms. Boyer at the Date of Marriage
[68] Mr. Brown’s position is that, as of the date of marriage, Ms. Boyer owned a vehicle valued at $10,000. Ms. Boyer asserts that because there is no Red Book value available for the specific vehicle, the vehicle should be attributed a NIL value. The parties did not address this item in their respective testimony and closing submissions.
[69] To determine a reasonable value for the subject vehicle, I consider the following factors:
• The fact that a Red Book value for the vehicle could not be found does not mean that the vehicle in fact had no value as of 1995;
• In April 1991, Ms. Boyer began working in a position for which her annual salary was $50,000;
• When separating from her first spouse, Ms. Boyer was self-represented; and
• In 1993, despite receiving a lump sum payment following the separation from her first spouse, Ms. Boyer was required to borrow money privately to assist her in the purchase of a home.
[70] I draw an inference and find that, in the first half of the 1990s, Ms. Boyer did not have significant disposable income to apply towards the purchase of a vehicle.
[71] I also consider that Mr. Brown values the 2004 Honda Odyssey EX-L at approximately 20 per cent of its Red Book value. A low value to that vehicle at the date of separation is to Mr. Brown’s favour in the equalization process. I draw an inference and find that Mr. Brown also provides a value for Ms. Boyer’s vehicle that is favourable to his position on equalization.
[72] For those reasons, I find that a reasonable value of the vehicle owned by Ms. Boyer at the date of marriage is $6,000.
f) GIC Held by Ms. Boyer at the Date of Marriage
[73] In her April 2022 Form 13 (Exhibit 105), Ms. Boyer lists a GIC in the amount of $1,906.48. Ms. Boyer’s evidence on the value of this item is unchallenged. I find that the value of the GIC held by Ms. Boyer at the date of the marriage is $1,906.48.
g) Ms. Boyer’s and Mr. Brown’s and Pensions
▪ Ms. Boyer – RRSP (Date of Separation)
[74] On the basis of my assessment of the parties as witnesses and my view of their respective record-keeping capabilities, I accept Ms. Boyer’s evidence that the RRSP held by her with Edward Jones at the date of separation had a value of $20,902.34 (as opposed to the $22,615.42 value posited by Mr. Brown).
▪ Ms. Boyer – RRSP (Date of Marriage)
[75] On the basis of my assessment of the parties as witnesses and my view of their respective record-keeping capabilities, I accept Ms. Boyer’s evidence that the RRSP held by her at the date of marriage had a value of $11,504 (as opposed to the $13,419 value posited by Mr. Brown).
▪ Mr. Brown - Edward Jones RRSP (Date of Separation)
[76] In his Form 13 Financial Statement (Exhibit 102), Mr. Brown identifies the existence, as of the date of separation, of several RRSPs with Edward Jones. One of the RRSP accounts ends with no. “05-1-9”. It is valued by Mr. Brown at $5,843.
[77] It is unclear whether Mr. Brown listed that RRSP in his net family property statement. Regardless, that RRSP account and a notional disposition cost ($1,168) must be addressed as part of the equalization. Both items are included in Schedule ‘A’.
▪ Mr. Brown - Nortel Pension (Date of Marriage)
[78] In 1993, when his first marriage broke down, Mr. Brown obtained a letter from his then employer, Nortel, setting out the value of his pension (Exhibit 99). It is undisputed that the value of Mr. Brown’s Nortel pension as of January 15, 1993 – the date of the breakdown of Mr. Brown’s first marriage – was $13,062.
[79] Mr. Brown was laid off from Nortel in 2000. It is undisputed that the value of Mr. Brown’s pension paid out to him as part of his severance package was $55,417.09 (Exhibit 100). The parties disagree as to the pace at which the pension grew and, therefore, the value of the pension when they married in June 1995:
• Mr. Brown values his Nortel pension at $25,162 at the date of marriage. He bases that figure on equal growth, in absolute dollars, from year-to-year between 1993 and 2000; and
• Ms. Boyer values the Nortel pension at $19,761.50 at the date of marriage. Ms. Boyer bases that figure on an equal rate of return, on a percentage basis, in each year from 1993 to 2000. Ms. Boyer calculates the average rate of return in those years to be 23 per cent.
[80] Neither Ms. Boyer nor Mr. Brown have any qualifications to give opinion evidence on pension values or rates of return from 1993 to 2000. Absent any better evidence than the valuations proposed by each of the parties, I prefer Ms. Boyer’s method of determining the year-to-year growth in the pension. Mr. Brown’s method results in a decrease in the rate of return from year-to-year. I find Ms. Boyer’s method to be the fairer and more reasonable method of determining the value of the Nortel pension in 1995.
[81] It is, however, necessary to slightly revise Ms. Boyer’s calculation. Her calculation addresses the rate of return on a year-to-year basis. As a result, the value at which she arrives is for January 1995. I consider the increase in the value of the pension from January 1995 to June 1995 (i.e., over an additional five months to the month in which the parties were married).
[82] I find the value of the Nortel pension as of June 1995 was $21,655.31.[3]
▪ Mr. Brown - RRSP (Date of Marriage)
[83] Mr. Brown asserts that, at the date of marriage, he had an RRSP of an estimated value of $20,000. He provided no evidence of the existence of such an investment. Ms. Boyer’s position is that Mr. Brown did not have an RRSP worth $20,000, or at all, as of the date of marriage.
[84] In the next section of these reasons, I find that Mr. Brown made no contribution towards the purchase of Blue Meadow Way – the property at which the parties resided prior to and for several years after the date of marriage. Ms. Boyer was required to borrow money from Mr. Brown’s parents to amass the funds for the down payment on that property. Based on Mr. Brown’s lack of contribution to the purchase of Blue Meadow Way, I draw an inference that he did not have significant disposable income in those years and was not contributing to an RRSP.
[85] I therefore exclude the $20,000 RRSP from Mr. Brown’s assets as of the date of marriage.
▪ Disposition Costs
[86] The parties agree that disposition costs are calculated at 20 per cent of the principal amount. The parties disagree as to the total of disposition costs to be included in their respective columns for the purpose of determining net family property. In Schedule ‘A’, disposition costs of 20 per cent are applied, where required, to the items upon which the parties agreed and to the RRSPs and pensions otherwise about which findings are made in these reasons.
h) Ownership Interests in and Disposition Costs for 9 Blue Meadow Way
▪ Background
[87] The property at 9 Blue Meadow Way (“Blue Meadow Way”) was historically the matrimonial home of Mr. Brown and his first wife, Barbara Alexandra Brown. In late 1993 or early 1994, after Mr. Brown separated from his first wife, Blue Meadow Way was sold to Ms. Boyer. When purchasing Blue Meadow Way, Ms. Boyer used her married name of “Girardo” (i.e., from her first marriage). The title to the home was always in Ms. Boyer’s name only. Mr. Brown acknowledges that his name was never on the title to Blue Meadow Way.
[88] The purchase price for Blue Meadow Way was $192,000. Ms. Boyer and Mr. Brown agree that as of the date of marriage, in 1995, (a) Blue Meadow Way had a fair market value of $196,000, (b) the balance owing on the mortgage was $132,496, and (c) the equity in the property was $63,504.
▪ The Positions of the Parties
[89] Ms. Boyer’s position is that the title to the property was in her name only and it was never intended that Mr. Brown would have any interest in the property.
[90] Mr. Brown’s position is that he always considered Blue Meadow Way to be a joint asset. In the alternative, he asks the court to conclude that the purchase of Blue Meadow Way was a “joint family venture”. In the further alternative, he asks the court to conclude that Ms. Boyer held 50 per cent of the property in trust for him.
▪ The Evidence
[91] Mr. Brown’s evidence is that after he and his first wife separated, she did not want to sell her interest in Blue Meadow Way to him. The property was therefore put on the market. Ms. Boyer purchased the home in her married name of “Girardo” – specifically to avoid having Mr. Brown’s first wife connect the purchaser to Mr. Brown.
[92] There is no evidence from Mr. Brown as to any financial contribution made by him to the purchase of Blue Meadow Way. Ms. Boyer’s uncontradicted evidence is that the purchase of the home was funded by the following means:
• First, Ms. Boyer made a successful application to the Bank of Nova Scotia to secure funds from a “Home Buyer’s Plan” (Exhibits 38 and 39);
• As of August 1993, prior to the purchase of Blue Meadow Way, Ms. Boyer had received $16,000 from her first husband (of the $24,000 in total to be paid by the first husband). Ms. Boyer applied the $16,000 towards the down payment of approximately $50,000 on Blue Meadow; and
• Ms. Boyer required additional funds to meet the Canada Mortgage and Housing Corporation requirement of a 25 per cent down payment (i.e., to avoid the expense of mortgage insurance). For that reason, Mr. Brown’s parents loaned Ms. Boyer money towards the down payment. Mr. Brown’s father loaned $18,000 and Mr. Brown’s mother loaned $8,000. Ms. Boyer paid both amounts back. She did so by December 1994 and without assistance from Mr. Brown.
[93] In support of his position, Mr. Brown relies on the contents of a two-page letter he received from his mother. The letter is Exhibit 74. That exhibit is evidence of the existence of the letter. The contents of the letter are not, however, evidence; they are hearsay.
▪ Analysis
[94] Sections 4 and 18 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), address family property and matrimonial homes. Section 4(1) includes the following definitions of those terms:
“matrimonial home” means a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date;
“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
a) the spouse’s debts and other liabilities, and
b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage.
[95] Pursuant to s. 4(1), Ms. Boyer is entitled to deduct from her net family property, the value of Blue Meadow Way on the date of marriage, unless either (a) the matrimonial home exception applies, or (b) Mr. Brown is successful on one or more of the positions he takes with respect to the property.
▪ The Matrimonial Home Exception does Not Apply
[96] The matrimonial home exception does not apply – specifically because Blue Meadow Way was sold prior to the August 31, 2011 date of separation.
[97] In s. 18(1) a “matrimonial home” is defined as follows: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”
[98] In Nahatchewitz v. Nahatchewitz (1999), 1999 CanLII 787 (ON CA), 1 R.F.L. (5th) 395, the Court of Appeal for Ontario considers the legislative intent behind ss. 4 and 18. The Court concludes that the FLA permits a spouse to deduct, from their net family property, the value of property purchased by the spouse prior to the date of marriage (a) which becomes a matrimonial home, and (b) does not remain as such at the date of separation (Nahatchewitz, at paras. 19-32).
[99] To be clear, the “value” of the property means the net value (Patterson v. Patterson (2006), 2006 CanLII 53701 (ON SC), 36 R.F.L. (6th) 268 (Ont. S.C.J.) and Gervasio v. Gervasio, 2007 ONCA 780, at para. 9). Therefore, the party claiming the deduction from their net family property must account for both the fair market value of and outstanding liabilities on the property at the date of marriage.
[100] In her financial documents, Ms. Boyer accounts for both the fair market value of and the outstanding mortgage on Blue Meadow Way at the date of the marriage: see Exhibit 105, Ms. Boyer’s April 2022 Form 13 Financial Statement.
[101] Ms. Boyer also includes as a liability/debt as of the date of marriage, the disposition costs associated with the sale of Blue Meadow Way (i.e., four per cent of $196,000). Those costs were incurred subsequent to the date of marriage. They do not serve to reduce the value of the property as of the date of marriage. I exclude that item from Ms. Boyer’s liability/debt as of the date of marriage.
▪ There is no Merit to Mr. Brown’s Claims
[102] In his Answer, Mr. Brown sets out the claims he is making.; he does so in 16 numbered paragraphs. He makes no mention therein of either a “joint family venture” or “unjust enrichment”. In his May 2022 opening statement for Part 2 of the trial, Mr. Brown made no mention of making either type of claim. It would be unfair and prejudicial to Ms. Boyer for the court to consider claims made by Mr. Brown for the first time, in his closing submissions, in September 2022. Mr. Brown’s claims of joint venture and unjust enrichment are dismissed.
[103] At p. 4, item 11 of his Answer, Mr. Brown requests an “unequal equalization” of net family property “by virtue of the unconscionable circumstance that would result if the parties’ net family [property was] equalized pursuant to s. 5(6) of the Family Law Act.” To the extent that this broad-sweeping form of relief might apply to Blue Meadow Way, I find nothing “unconscionable” in the circumstances to warrant treatment of Blue Meadow Way other than as requested by Ms. Boyer.
[104] In his opening statement, Mr. Brown alleged that he and Ms. Boyer had an agreement to share equally in Blue Meadow Way. The evidence does not support the existence of such an agreement.
▪ Conclusion – Blue Meadow Way
[105] In the equalization process, Ms. Boyer is entitled to deduct the net value (fair market value less outstanding mortgage) of Blue Meadow Way, as of the date of marriage. The disposition costs for Blue Meadow Way are not relevant to the equalization process.
f) Matrimonial Home
[106] The parties’ respective interests in the matrimonial home as of the date of separation are addressed in Schedule ‘A’ to these reasons. That document addresses (a) the fair market value of the home at $675,000, and (b) $432,624 as the amount owing on the mortgage as of the date of separation.
Conclusion – Equalization of Family Property
[107] All amounts included in Schedule ‘A’ are either as agreed upon by the parties or as determined in these reasons. As calculated in Schedule ‘A’, an equalization payment in the amount of $77,732.51 shall be made by Mr. Brown to Ms. Boyer.
[108] It has been almost 12 years since the parties separated and over 11 years since Ms. Boyer commenced this proceeding. There is no reason for there to be any delay in the equalization payment. For that reason, in the order made at the conclusion of these reasons, (a) a deadline for the payment to be made is set, and (b) post-judgment interest accrues on the equalization payment from the date of these reasons to the date of payment (i.e., regardless of whether the equalization payment is made prior to the deadline set).
Issue No. 3 – Post-Separation Costs
[109] Ms. Boyer asks the court to order that Mr. Brown reimburse her for 50 per cent of the $25,000 deposit she paid in September 2011 towards the purchase of a home into which she intended to move by late October 2011.
▪ The Evidence
[110] Ms. Boyer’s evidence as to how she came to lose the deposit is as follows:
• As of early September 2011, the parties agree that Ms. Boyer will move out of the matrimonial home;
• Relying on that agreement, Ms. Boyer borrows $25,000 from her mother to make a deposit on a Claridge-built home that will be ready for occupancy in October 2011;
• In reliance on that agreement, Ms. Boyer also applies to the TD Bank and obtains approval for a $354,000 mortgage (Exhibit 29). That approval is subject to Ms. Boyer providing the TD Bank with evidence (i.e., a signed separation agreement) that Mr. Brown is releasing her from liability on the mortgage for the matrimonial home;
• In late September or early October 2011, Ms. Boyer presents Mr. Brown with a partial separation agreement. That document states the date of separation remains to be determined;
• Mr. Brown refuses to sign the partial separation agreement unless it stipulates April 15, 2008, as the date of separation; and
• Ms. Boyer does not, at that time, agree to the 2008 date of separation. The partial separation agreement is not signed, the mortgage with the TD Bank falls through, and Ms. Boyer forfeits the $25,000 deposit on the Claridge home.
[111] Mr. Brown did not cross-examine Ms. Boyer on any of the above-listed points, nor did Mr. Brown give any contradictory evidence. I accept Ms. Boyer’s evidence and find that she lost the $25,000 deposit in the circumstances as she described them. Is Ms. Boyer entitled to reimbursement of 50 per cent of the $25,000 deposit?
▪ Analysis
[112] Ms. Boyer relies on the decision of Braid J., in Haras v. Camp, 2018 ONSC 3456. In Haras, the husband continued, after the parties separated and he had moved out of the matrimonial home, to pay some of the family expenses until the matrimonial home was sold. For example, the husband paid the home insurance premiums, property taxes, overdraft, overdraft interest, and dog-sitting expenses. He also continued to contribute to the wife’s RRSP.
[113] Braid J. concluded the expenses claimed were reasonable; the husband was entitled to reimbursement of 50 per cent of the expenses which benefitted the family (Haras, at paras. 79-80).
[114] The husband also claimed occupation rent, blaming the delay encountered in the sale of the home on the wife. Braid J. found there was significant hostility between the parties regarding the sale of the home (at para. 92). Braid J. ultimately concluded she could not find any one party was more unreasonable than the other. Braid J. declined to order occupation rent (at paras. 96-97).
[115] Are the circumstances and findings made in Haras analogous to Ms. Boyer’s circumstances regarding the loss of the $25,000 deposit on the Claridge home?
[116] By 2011, Ms. Boyer and Mr. Brown had been married for 16 years. Based on the duration of the marriage, I draw an inference and find that Ms. Boyer had some appreciation for Mr. Brown’s personality, Mr. Brown’s emotional state after learning of her infidelity, and the likelihood that finalizing a separation agreement with Mr. Brown would not be straightforward.
[117] Ms. Boyer initially believed she would be the party to move out of the matrimonial home. In the circumstances, she may well have been anxious to do so. I find, however, that, before the parties had finalized the terms of their separation, Ms. Boyer made a unilateral decision to pursue the purchase of another home. She made the down payment on the Claridge home at a time when the parties’ future circumstances remained uncertain.
[118] Ms. Boyer’s claim for reimbursement of 50 per cent of the down payment lost is more closely analogous to the claim for occupation rent than it is to the claim for reimbursement of post-separation expenses in Haras.
▪ Conclusion – Post-Separation Expenses
[119] Ms. Boyer’s claim for reimbursement of 50 per cent of the $25,000 down payment is dismissed.
Issue No. 4 – Mr. Brown’s Income for the Purpose of Child Support and Section 7 Expenses
[120] The court has a broad discretion to impute income for the purpose of determining child support. The onus is on the party seeking support to have income imputed to the other party to establish an evidentiary basis in support of the requisite findings.
[121] In support of her request that income be imputed to Mr. Brown for the purpose of determining his child support and Section 7 obligations, Ms. Boyer asks the court to consider Mr. Brown’s conduct:
• His failure to fulfill his disclosure obligations in a timely manner or at all;
• Organization of professional corporations and employment status with the deliberate intention of shielding personal income;
• Making unreasonable claims for business expenses, again with the deliberate intention of shielding (or minimizing) personal income; and
• Intentional underemployment.
[122] It is undisputed that, since that date, the parties’ three children have all ceased to be children of the marriage for the purpose of child support obligations. The parties agree on the dates on which the children each ceased to be children of the marriage:
Stephanie – April 30, 2017
Olivier – April 30, 2019
David – April 30, 2021
[123] The dates listed above represent the date on which each child ceased to be enrolled for an undergraduate level, post-secondary education program.
[124] Ms. Boyer is not advancing a claim for child support or Section 7 expenses for the months of September through December 2011, when the parties continued to reside separate and apart under the same roof in the matrimonial home. Ms. Boyer’s claim commences on January 1, 2012 and ends on April 30, 2021.
[125] Mr. Brown’s child support obligations for the years 2012 to 2016, both inclusive, were the subject of a motion for interim relief heard by Sheard J., in January 2017. The order made at that time and the reasons for it provide context for the respective positions of the parties at trial: see Boyer v. Brown, 2017 ONSC 501 (“the 2017 order” and “the 2017 Ruling”, respectively).
a) The 2017 Order
[126] In 2017, Sheard J. determined Mr. Brown’s child support obligations, on an interim basis, for the years 2012 through 2016. In addition, Sheard J. set Mr. Brown’s child support obligations commencing January 1, 2017.
[127] Mr. Brown’s child support obligations for 2012, 2013, and 2014, as ordered by Sheard J., were based on Mr. Brown’s Line 150 income as reported for those years:
Year Income No. of Children Child Support
2012 $145,550 2[4] $1,236.00
2013 $102,604 2 (Jan. – May) $1,258.00
3 (Jun. – Dec.) $1,886.00
2014 $ 49,628 3 $ 951.44
[128] Ms. Boyer asked Sheard J. to impute income to Mr. Brown for each of the years 2014, 2015, and 2016. Sheard J. declined to do so for 2014 (2017 Ruling, at para. 21).
[129] Ms. Boyer requested that income be imputed to Mr. Brown for 2015 and 2016 in amounts ranging from $102,000 to $147,735 (rounded figures). Those amounts were based on Mr. Brown’s historical income in the years 2010 to 2013.
[130] Mr. Brown’s reported income for 2015 was $10,807 (2017 Ruling, at para. 23). When the parties were before Sheard J. in January 2017, there was minimal evidence of Mr. Brown’s income for 2016.
[131] In opposing Ms. Boyer’s motion, Mr. Brown submitted that, after being laid off by Nortel in 2012, he was unable to find alternate employment. He therefore embarked on a new self-employed business venture, but that venture had (by 2017) not come anywhere close to replacing the Nortel-based employment income (2017 Ruling, at para. 2).
[132] At paras. 38 and 39 of the 2017 Ruling, Sheard J. reflects on Mr. Brown’s circumstances, and the impact of his income-related decisions on his ability to fulfill his child support obligations:
[38] I conclude that the Father has been allowed more than enough time to pursue a business venture. Not only is it not even providing him with an income equal to minimum wage, he states that he will be required to go deeper into debt in order for the business to survive. Three of his six partners have already left, having recognized the lack of profitability.
[39] The Father’s refusal to provide any meaningful financial disclosure and his lack of debts on his financial statement lead to a conclusion that the Father is refusing to disclose income or to provide information that would reveal his true income. If that conclusion is not correct then his failure to provide income shows that the Father is failing to take proper steps to earn an income and to discharge his obligation to support his children.
[133] At para. 51, Sheard J. considers the evidence before her as to the range of income for someone with Mr. Brown’s qualifications as a senior industrial designer: $46,000 to $91,000 per year. In the end, Sheard J. imputes the same income to Mr. Brown for 2015 and 2016 as she does for 2014: $49,628 (at para. 53). The table amount of child support for three children in 2015 and 2016 continued to be $951.44 (i.e., as it was in 2014).
[134] The 2017 order is a temporary one. At para. 57 of the 2017 Ruling, Sheard J. makes it clear the child support ordered is “subject to adjustment by the judge hearing the [trial] and who may have the benefit of a fuller record”.
[135] Neither party requests any adjustment to the child support ordered by Sheard J. for the years 2012 and 2013. The final order made at the conclusion of these reasons includes terms which repeat the order made by Sheard J. for those years (2017 Ruling, at paras. 13-15 for 2012 and at paras. 16-19 for 2013).
[136] Mr. Brown asks the court to adjust child support as ordered by Sheard J. from 2014 through 2017. Ms. Boyer asks the court to adjust child support as ordered by Sheard J. in 2017 only. Both parties ask the court to determine child support for 2018 through 2021.
b) The Positions of the Parties
▪ Ms. Boyer
[137] Ms. Boyer asks the court to (a) make the terms of the 2017 order addressing child support in 2014, 2015, and 2016 part of the court’s final order, (b) adjust and make a final order for child support in 2017, and (c) make a final order for child support for the period from January 1, 2018 to April 30, 2021.
[138] Ms. Boyer asks the court to include RRSP income reported by Mr. Brown in any given year in the income upon which child support is based. In addition, Ms. Boyer asks that, in certain years, income be imputed to Mr. Brown in the range of $80,000 to $100,000.
[139] Ms. Boyer’s overall position is that Mr. Brown is in arrears in an amount in excess of $50,000. Ms. Boyer asks that the court order Mr. Brown to pay the arrears – whatever the amount – by way of a lump sum.
▪ Mr. Brown
[140] Mr. Brown asks the court to (a) adjust and make a final order for child support for 2014, 2015, 2016, and 2017, and (b) make a final order for child support from January 1, 2018 to April 30, 2021. Mr. Brown asks that child support for the entire period – January 1, 2014 to April 30, 2021 – be based on his actual income and, where relevant, that RRSP income be excluded.
[141] Mr. Brown’s overall position is that he has overpaid child support by approximately $10,000.
[142] I will first determine Mr. Brown’s request for RRSP income, where reported to be excluded from the income upon which child support is based.
c) RRSP Income Reported by Mr. Brown
[143] Section 16 of the Child Support Guidelines, S.O.R./97-175 (“Guidelines”), prescribes how a party’s income is to be calculated. It provides that, subject to the matters addressed in ss. 17-20 of the Guidelines, “a spouse’s annual income is determined using the sources of income set out under the heading ‘Total income’ in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.”
[144] Section 17(1) of the Guidelines is relevant to the issue of whether RRSP income is deducted from that total income figure; it addresses “Pattern of Income”:
If the court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuations in income or receipt of a non-recurring amount during those years.
[145] Within that framework, I consider Mr. Brown’s request for the exclusion of RRSP income.
▪ Mr. Brown’s RRSP Income
[146] Mr. Brown asks the court to exclude RRSP income from his income for child support in the years 2014, 2017, 2018, and 2020. In support of that request, Mr. Brown relies on two grounds. First, Mr. Brown submits he was required to withdraw funds from his RRSPs to pay arrears of and ongoing child support. Second, Mr. Brown submits he withdrew funds from his RRSPs to pay legal expenses. I will deal with the latter, and then the former, ground.
- Legal Expenses
[147] Mr. Brown made no mention in his opening statement of withdrawing funds from his RRSPs to pay legal expenses arising from this litigation. In closing, Mr. Brown asked the court to conclude he had to pay legal expenses associated with the litigation. In neither his testimony nor his documentary evidence did Mr. Brown address legal expenses incurred for this or any other (i.e., employment or business-related) litigation.
[148] It would be unfair to Ms. Boyer to permit Mr. Brown to rely on legal expenses as a ground in support of the relief he requests regarding RRSP income. Mr. Brown did not give Ms. Boyer or the court notice that he intended to rely on that ground.
[149] I would, in any event, deny the request for the subject relief. Mr. Brown failed to present any evidence to connect the withdrawal of RRSP funds to payment of legal expenses.
[150] Based on Mr. Brown’s testimony and the relevant notices of assessment, I find the total of the RRSP income in the years 2014, 2017, 2018, and 2020 is $170,879. There is no evidence which in any way connects the withdrawal of RRSP funds in those years (or in that total amount) to legal expenses of any kind, let alone specifically for this litigation.
[151] Mr. Brown delivered his Answer in November 2012. He was represented by counsel at that time. Mr. Brown was self-represented when case conferences were conducted in November 2013 and September 2016. He was also self-represented when he attended a settlement conference in February 2018.
[152] A lawyer appeared with Mr. Brown for several events (a) prior to the commencement of Part 1 of the trial, and (b) between Parts 1 and 2 of the trial. The lawyer did so in a capacity other than that of lawyer of record. Mr. Brown was self-represented for both Parts 1 and 2 of the trial.
[153] I turn, then, to Mr. Brown’s alternate ground in support of the request for exclusion of RRSP income – to pay arrears of an ongoing child support.
- Child Support Obligations
[154] In his opening statement, Mr. Brown asserted that his alternative explanation for the reliance on RRSP funds in 2014, 2017, 2018, and 2020 is the payment of arrears of and ongoing child support. When making his closing submissions, Mr. Brown did not address this alternative explanation regarding RRSP funds in those years. I will deal with each of the four years separately.
o 2014
[155] In the 2017 Ruling, Sheard J. found that Mr. Brown paid nothing towards his child support obligations at any time in 2014 (at paras. 21-22). Ms. Boyer’s evidence during Part 2 of the trial is that Mr. Brown paid $2,500 towards child support in 2014. Mr. Brown did not present any evidence to support a finding that he paid more than $2,500 in child support in 2014.
[156] I find that the $24,816 of RRSP income in 2014 was not withdrawn to assist Mr. Brown in fulfilling his child support obligations. I refuse Mr. Brown’s request to deduct RRSP income when determining his child support obligations for 2014.
[157] Ms. Boyer does not ask the court to do anything other than convert the term of the 2017 order addressing the 2014 child support obligations from a temporary to a final order. That relief is granted.
o 2017
[158] For 2017, Mr. Brown asks the court to deduct $42,857 in RRSP income from his total income of $74,713 – resulting in income of $30,383. Ms. Boyer’s unchallenged submissions include that Mr. Brown paid no child support in 2015 or 2016. Pursuant to the 2017 Order, Mr. Brown was required to pay child support of $11,417.28 in each year – for a total of $22,834.56. On its face, it appears that a significant portion of the RRSP funds withdrawn was applied towards the payment of child support in 2017. According to Ms. Boyer’s records, Mr. Brown paid $21,814.04 in child support in 2017.
[159] For the following reasons I am not persuaded that excluding the RRSP income would lead to the fairest determination of Mr. Brown’s income for 2017:
• First, the RRSP funds, if withdrawn to meet child support obligations, were withdrawn in an effort to catch up on over five years of arrears, including arrears that accrued in two years when Mr. Brown was making a six-figure income;
• Second, the Guidelines do not make any special provision for RRSP income. (See Fraser v. Fraser, 2013 ONCA 715, 235 ACWS (3d) 163, at para. 100 referring to Stevens v. Boulerice (1999), 99 ACWS (3d) 153 (Ont. S.C.).); and
• The fact that Mr. Brown’s RRSPs are included for the purpose of equalization addresses the assets as between the parties. That inclusion does not address the availability of funds from which Mr. Brown could have been fulfilling his separate and distinct obligations to his children. (See Fraser, at para. 102, again referring to Stevens.)
[160] I have considered the findings with respect to the equalization of net family property. There is nothing in the equalization process which renders it unfair to Mr. Brown to include the RRSP withdrawals in his 2017 income (Fraser, at para. 103).
[161] In summary, Mr. Brown’s request to deduct RRSP income for the purpose of determining his 2017 child support obligations is denied.
o 2018
[162] For 2018, Mr. Brown asks the court to reduce his income of $111,758 by $95,481 (RRSP) to $16,277. As of the end of 2017, Mr. Brown continued to be in arrears of child support by an amount in the tens of thousands of dollars. In 2018, Mr. Brown paid a total of $13,424.60 towards child support.
[163] I find there is minimal, if any, connection between the withdrawal of $95,481 in RRSP funds and the payment of $13,424.60 in child support. I am not persuaded that Mr. Brown applied the funds withdrawn from his RRSP in 2018 towards either his historical or ongoing child support obligations. I find his position in that regard to be entirely disingenuous. The reduction in income requested is refused.
o 2020
[164] For 2020, Mr. Brown asks the court to reduce his reported income of $42,499 by $7,725 (RRSP), and by the smaller, unexplained amount of $1,173, to $33,601. Ms. Boyer’s evidence is that Mr. Brown paid approximately $10,000 in child support that year. Mr. Brown admits that he had several sources of income that year and that he continued to receive the benefit of a vehicle and a mobile phone paid by Tungsten.
[165] Mr. Brown provided no evidence as to the timing of his withdrawal of RRSP income – in absolute terms or in relation to when child support payments were made in 2020. I am not persuaded that Mr. Brown withdrew funds from his RRSP in 2020 to make child support payments. The reduction in income requested is refused.
Conclusion – RRSP Income
[166] Mr. Brown’s request for RRSP income to be deducted in 2014, 2017, 2018, and 2020, on the basis of fulfilment of historical and/or ongoing child support obligations, is denied.
[167] I note that Mr. Brown also requested that his 2021 income be reduced from $33,306, by $1,665, to $31,641. Mr. Brown did not, however, provide any evidence in support of that request. I therefore dismiss Mr. Brown’s request for relief related to his 2021 income.
d) Imputation of Income
[168] With Mr. Brown’s request for relief related to RRSP income dismissed for each of the relevant years, I will next determine Ms. Boyer’s request for income to be imputed to Mr. Brown.
[169] Section 19 of the Guidelines sets out a non-exhaustive list of circumstances in which income may be imputed. The listed circumstances relevant to Ms. Boyer’s request to impute income to Mr. Brown are as follows:
(a) The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(f) the spouse has failed to provide income information when under a legal obligation to do so; [and]
(g) the spouse unreasonably deducts expenses from income.
[170] Mr. Brown’s employment history is relevant to the request for imputation of income. That history includes full-time employment with Nortel until 2000; full-time employment thereafter with Allen Vanguard until 2012; at least one further period of full-time employment (in 2013 with EODC); and the pursuit of several business ventures.
▪ Mr. Brown’s Employment History
[171] Mr. Brown is an industrial designer. After being laid off by Nortel in 2000, Mr. Brown eventually became a senior industrial designer with Allen Vanguard. That company carried on business in the field of military security. Mr. Brown’s work was in the design of personal protective equipment. In his testimony, Mr. Brown referred to this type of equipment as “bomb suits”. Mr. Brown was laid off by Allen Vanguard in September 2012. He was in his fifties at the time.
[172] Mr. Brown’s evidence is that he had begun looking for another position in the summer of 2011. Mr. Brown testified that Allen Vanguard was no longer doing any product design in the area in which he was employed; he could see the writing on the wall.
[173] Exhibit 84 is said by Mr. Brown to represent over 15 positions which he considered, investigated, and/or for which he applied from 2011 to 2014. Mr. Brown described responding to everything that “popped up” – even jobs that were engineering-based rather than in the field of industrial design.
[174] Mr. Brown ultimately landed a position with a company he referred to as “EODC”. Mr. Brown described being hired by this German-based company to assist them with a bid to win a specific contract for armour-plated vehicles (i.e., once again in the field of military security). Mr. Brown was employed by EODC from July 2, 2013 to October 28, 2013 (Exhibit 85, the Record of Employment (“ROE”)). In that period, Mr. Brown earned $46,815.27. The ROE indicates that Mr. Brown “Did not meet employer’s expectations” and he would not be returning to EODC.
[175] Mr. Brown’s evidence is that, before he secured the position with EODC, he had become concerned he was unemployable because of both his age and niche experience in the field of personal protective equipment. After his position with EODC came to an end, Mr. Brown pursued a number of business ventures. Ultimately none of them proved successful.
[176] First, together with Richard Levesque, Mr. Brown formed “Synergy IDM Group”. The plan was for the company to offer a broad base of design and manufacturing services. Mr. Brown’s evidence is the company never got off the ground.
[177] Mr. Brown was of the view he had developed some name recognition with the name “Synergy”. Therefore, even though Synergy IDM Group never got off the ground, Mr. Brown incorporated “Synergy Product and Design Management Inc.” (“SPDMI”). He used and continues to use that company as a holding company. Mr. Brown’s spouse, Raluca Dragnea is the sole director of SPDMI.
[178] Second, in the fall of 2014, Mr. Brown joined five mechanical engineers to form Tungsten Collaborative Inc. (“Tungsten”). Mr. Brown was the President. SPDMI, Mr. Brown, and Ms. Dragnea are shareholders in Tungsten.
[179] Mr. Brown’s evidence is that three of the founding members left Tungsten within its first year of operation. They did so out of concern about Tungsten’s lack of viability: see para. 132, above, quoting paras. 38 and 39 of the 2017 Ruling.
[180] Mr. Brown wanted to keep Tungsten going because of his uncertainty of finding employment elsewhere. He and the other two remaining founders kept the company going. They hired junior designers and continued to rent office space. Mr. Brown testified that, even though the company continued to struggle, it appeared to him Tungsten could ultimately be successful.
[181] Mr. Brown’s evidence is that, while he remained with Tungsten, he was compensated in dividend income. In cross-examination, Mr. Brown acknowledged that, when he was still with Tungsten, he also received several non-financial benefits including the following benefits:
• From 2017 to the date of trial, the use of a vehicle purchased by Tungsten – a Jaguar;
• Tungsten paid and continues to pay premiums for motor vehicle insurance on the Jaguar; and
• Tungsten provided Mr. Brown with a mobile phone in 2014 and continued to pay for the phone until at least April 30, 2021.
[182] The other two Tungsten founders voted Mr. Brown out of the company in May 2020. He did not receive any compensation at that time. Mr. Brown, Ms. Dragnea, and SPDMI are now pursuing litigation against Tungsten and the two co-founders by whom Mr. Brown was voted out of the company. That litigation remained unresolved as of dates on which closing submissions in this proceeding were made.
[183] From May 2020 to April 30, 2021, Mr. Brown did not obtain employment. He had no interviews, and no job offers in that period.
[184] Mr. Brown’s other sources of income from 2017 to 2021 were (a) rental income from a residential property, (b) in 2020, the CERB (Covid-related benefit), and (c) dividend income from SPDMI. Since 2013, Mr. Brown has been residing in a home, on Lakeside Terrace, owned by his spouse, Ms. Dragnea. Since moving into the home owned by Ms. Dragnea, Mr. Brown has been renting the home which he purchased after separating from Ms. Boyer. The rental income which Mr. Brown receives from that home has been steadily increasing since 2013. In the years 2019, 2020, and 2021, the annual rental income was $23,400.
[185] For the years 2017 to 2020, Mr. Brown’s dividend income from SPDMI ranged from as low as $11,500 (2020) to as high as $51,750 (2019). Mr. Brown acknowledged in cross-examination that, on average, he received dividend income of $31,379 per year in each of the years from 2015 to 2019.
[186] I turn next to each of the three grounds upon which Ms. Boyer relies in support of her request for income to be imputed to Mr. Brown.
▪ Grounds Upon Which to Impute Income
- Failure to Fulfill Financial Disclosure Obligations (s. 19(1)(f))
[187] I find that Mr. Brown’s conduct regarding his financial disclosure obligations ranges from cavalier, at times, to deliberately non-compliant. In making that finding, I consider the following factors:
• The first order with respect to financial disclosure was made in November 2013. Additional orders addressing financial disclosure were made in September 2016, June 2017, August 2017, and June 2020;
• Mr. Brown did not comply with the deadline set by Audet J. in June 2020 for the production of tax returns for SPDMI for the years 2015 to 2019.
• Mr. Brown’s explanation for his failure to produce those documents by the deadline set by Audet J. was, “I didn’t know how to deal with that basically”. In addition, he delayed in making that disclosure because his spouse, and partner in SPDMI, Ms. Dragnea, was unhappy with the requirement to disclose the documents;
• Mr. Brown did not include the SPDMI tax returns for 2015 to 2019 in the book of documents from which he would seek to have documents admitted as evidence at trial;
• Mr. Brown was unable to explain the source of $19,000 of income in 2013 and at least one source of income in 2019;
• Mr. Brown testified that, although he was a founder and the President of Tungsten, he never looked at Tungsten’s financial records to ascertain how much the company was paying to supply him with a vehicle. Mr. Brown’s evidence is: “The CFO was running the company”;
• Mr. Brown testified that he has no idea how much Tungsten paid from 2014 to April 30, 2021 to provide him with a mobile phone;
• Mr. Brown received $40,000 from Mr. Levesque to resolve their dispute related to Synergy, deposited the funds into a bank account for SPDMI, and did not account for those funds as a source of income potentially relevant to his child support obligations; and
• When asked about the decision to have SPDMI as a holding company, Mr. Brown’s evasive response was, “I don’t know the legal definition of a holding company”.
[188] It is not unusual for a businessperson to structure their corporate and personal finances to minimize both corporate and personal liability for income tax. Mr. Brown may well have taken such an approach to corporate and personal tax liability. That approach, if taken, does not entitle Mr. Brown to keep Ms. Boyer and the court in the dark as to the full financial picture – specifically for the purpose of child support and Section 7 obligations.
[189] Mr. Brown cannot be naïve as to the consequences of failure to fulfill his financial disclosure obligations. Sheard J. made it clear in the 2017 Ruling that the lack of disclosure by Mr. Brown, as of early 2017, was a contributing factor to her decision to impute income to Mr. Brown for the years 2015 and 2016. In her decision on costs related to the motion, Sheard J. again mentioned Mr. Brown’s failure to fulfill his financial disclosure obligation (Boyer v. Brown, 2017 ONSC 2047, “the 2017 Costs Decision”). At para. 12 of the 2017 Costs Decision, Sheard J. concluded that Mr. Brown acted both unreasonably and in bad faith.
[190] I find that Mr. Brown’s approach to his financial disclosure obligations throughout this litigation was unreasonable and deliberate – with the intention of thwarting Ms. Boyer and the court in their respective efforts to address and determine a fair and reasonable income upon which to base Mr. Brown’s child support and Section 7 obligations. I find that Mr. Brown’s conduct falls within the scope of s. 19(1)(f) of the Guidelines. For that reason alone, I exercise the court’s discretion to impute income to Mr. Brown for the period from January 1, 2017 to April 30, 2021.
- Intentional Underemployment or Unemployment (s. 19(1)(d))
[191] Ms. Boyer asks the court to find that Mr. Brown is intentionally underemployed or unemployed within the meaning of s. 19(1)(a) of the Guidelines. She asks the court to impute an income to Mr. Brown in the range of $80,000 to $100,000.
[192] In her affidavit on the motion before Sheard J., Ms. Boyer provided documentary evidence as to a range of employment income for someone with Mr. Brown’s experience, expertise, and training. Based on that evidence, at para. 51 of the 2017 Ruling, Sheard J. concludes the range of pay for a senior industrial designer was $46,000 to $91,000 per year.
[193] Based on the evidence set out in paras. 187 to 190, above, I draw an inference and find that Mr. Brown structured his corporate and personal finances in a way that serves to minimize liability for income taxes and, at the same time, shields income that would otherwise be included for the purpose of child support.
[194] Whether Mr. Brown’s conduct amounts to intentional underemployment or unemployment (s. 19(1)(d)) or to diversion of income (s. 19(1)(f)), may be more than a matter of semantics. Mr. Brown’s delayed and/or incomplete financial disclosure made it challenging for Ms. Boyer to advance her claim and respond to Mr. Brown’s positions.
[195] Based on Mr. Brown’s delayed and/or incomplete financial disclosure, I draw a negative inference and find that Mr. Brown has, since 2013 when he ceased to work at EODC, become intentionally underemployed or unemployed. I find it fair and reasonable to impute income to him.
- Unreasonable Business Expenses Claimed (s. 19(1)(g))
[196] As explained above, I find that Mr. Brown failed to comply with his financial disclosure obligations. His failure in that regard includes the failure to comply with the deadline set in the summer of 2020 by Audet J., for the disclosure of documents related to corporations in which Mr. Brown had an interest and/or from which he derived income after being laid off by Allen Vanguard. Mr. Brown’s failure to meet his financial disclosure obligations has been perpetual, protracted, and persistent.
[197] It would be unfair to Ms. Boyer to ‘reward’ Mr. Brown for his delays and failure regarding financial disclosure by permitting him to rely on documents disclosed after the relevant deadline. It is therefore unnecessary to address the issue of unreasonable business expenses. The relief sought by Ms. Boyer is granted based on ss. 19(1)(d) and (f) of the Guidelines.
▪ Imputing Income to Mr. Brown
- Mr. Brown’s Income Potential
[198] There is no evidence at trial from Ms. Boyer as to the range of income for a senior industrial designer in the years 2017 to 2021. There is, however, evidence upon which the court may base a determination of Mr. Brown’s income potential in those years. That evidence is found in the ROE issued to Mr. Brown following termination of his employment with EODC (Exhibit 85).
[199] Mr. Brown’s position with EODC appears to have related to his ten-plus years of experience in both the field of military security and in securing financing for projects. The position with EODC may not have related exclusively to Mr. Brown’s education and experience in the field of industrial design. Regardless, I find that Mr. Brown’s income from EODC is a fair and reasonable starting point from which to determine his income potential in 2017 through 2021.
[200] The ROE from EODC shows that from July 2, 2013 to October 28, 2013, Mr. Brown was paid $46,815.27. The ROE reflects a weekly income of $4,423.20. The ROE also indicates payment of vacation pay in the total amount of $3,025.49. So as not to overestimate Mr. Brown’s income potential, I exclude vacation pay when imputing income.
[201] At a weekly rate of $4,423.20, and assuming 48 paid weeks per year, the contract position with EODC equates to a salaried position of $140,445 ($46,815.17 / 4 mos. x 12 mos.).
- Allowing for Periods of Unemployment
[202] Mr. Brown’s evidence is that it took from the fall of 2012, when he was laid off by Allen Vanguard, until the summer of 2013 to find the position with EODC. An inference can reasonably be drawn that an individual of Mr. Brown’s age and career experience would be unemployed at times – even if they were diligently pursuing employment opportunities with a view to fulfilling their child support obligations. It is reasonable and fair to allow for challenges encountered in finding employment and, as a result, periods of unemployment.
[203] How significant would the periods of unemployment be? As explained in an earlier section of these reasons, I question the credibility of Mr. Brown’s evidence regarding his searches for employment over time. I am not satisfied that Mr. Brown was mindful of his child support obligations when pursuing employment and/or business ventures – whether in industrial design, a related field, or any form of employment at all.
[204] I find that Mr. Brown would be unemployed 40 per cent of the time. It is reasonable to impute an income to Mr. Brown based on 60 per cent of the $140,000 salary equivalent which he was earning at times in 2013 and to adjust that income for inflation from year to year.
[205] In reaching that conclusion I also take into consideration Mr. Brown has other sources of income (rental income from real property and dividend income from SPDMI). Even if Mr. Brown were to be unemployed more than 40 per cent of a given year, I draw an inference and find that his employment or self-employment income and income from other sources would equate to at least 60 per cent of the $140,000 salary equivalent he earned when working at EODC.
- Adjusting 2013 Income for Inflation
[206] I therefore start with an income of $84,000 in 2013 ($140,000 x 0.6). I rely on the Bank of Canada inflation calculator to determine Mr. Brown’s income potential for the years 2017 through 2021. The Bank of Canada annual inflation rate is a matter about which the court is entitled to take judicial notice (R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863).
[207] Relying on that approach, Mr. Brown’s income for the years 2017 through 2021, when adjusted for inflation, is as set out below:
2017 $ 89,270
2018 $ 91,255
2019 $ 93,105
2020 $ 92,900
2021 $ 96,050
[208] I rely on those figures for the years 2017 through 2020. Ms. Boyer does not request that income be imputed for 2021. For that year, I rely on $33,306 – the amount set out in the notice of assessment received by Mr. Brown for that year.
[209] The only other year which requires specific attention is 2018. Mr. Brown’s actual income in that year is $111,758 – approximately $20,000 higher than the income imputed based on the approach discussed in the preceding paragraphs. Mr. Brown withdrew $95,481 in RRSP funds and paid $13,424.60 in child support that year. The Guidelines require the court to consider patterns of income. I find that imputation of income based on the chart set out above establishes a reasonable pattern of income. I treat Mr. Brown’s actual income for 2018 as an ‘outlier’.
▪ Conclusion – Imputation of Income
[210] Mr. Brown’s child support obligations are determined based on the following levels of income for the years 2017 through 2021:
2017 $ 89,270
2018 $ 91,255
2019 $ 93,105
2020 $ 92,900
2021 $ 33,306
[211] I next determine Mr. Brown’s child support obligations for the years 2014 through 2021.
Issue No. 5 – Child Support for 2014 through 2021
▪ Monthly Child Support
[212] Mr. Brown’s child support obligations for January 1, 2012 to April 30, 2021 are based on the following factors:
a) the child support ordered by Sheard J., in 2017, for the years 2012, 2013, 2014, 2015 and 2016;
b) income as imputed in these reasons for 2017, 2018, 2019, and 2020;
c) actual income for 2021;
d) the number of the parties’ children living with Ms. Boyer from January 1, 2012 to April 30, 2021; and
e) the completion by the children of their respective undergraduate degrees.
[213] The chart immediately below, sets out Mr. Brown’s child support obligations from January 1, 2012 to April 30, 2021:
Year
Income
Number of Children
Child Support
2012
$145,550
2
$1,236.00
2013
$102,604
2 (Jan. to May) 3 (Jun. to Dec.)
$1,258.00 $1,886.00
2014
$49,628
3
$951.44
2015
$49,628
3
$951.44
2016
$49,628
3
$951.44
2017
$89,270
3 (Jan. to Apr.) 2 (May to Dec.)
$1,752.40 $1,341.70
2018
$91,255
2
$1,365.10
2019
$93,105
2 (Jan. to Apr.) 1 (May to Dec.)
$1,387.05 $856.05
2020
$92,900
1
$854.00
2021
$33,306
1 (Jan. to Apr.)
$285.06
[214] I turn next to Ms. Boyer’s request for the arrears of child support to be paid in a lump sum.
▪ Calculation of Arrears of Child Support
[215] Ms. Boyer submits that, as of September 2022, the arrears of child support owed by Mr. Brown were in excess of $50,000. Ms. Boyer did not include interest when calculating arrears of child support.
[216] I am not convinced that Ms. Boyer used the correct method for determining the amount of arrears owing. I anticipate that the method used by Ms. Boyer underestimates the principal amount owing for arrears.
[217] Much, if not the majority, of the delay in having a final order made regarding child support is the result of Mr. Brown’s failure to make timely and full financial disclosure. It would be unfair to Ms. Boyer and to the parties’ children to ignore the opportunity costs lost as a result of the delay in obtaining full payment of child support. The entirety of the court’s final order addresses retroactive child support obligations.
[218] The order provides for pre-judgment interest at the rate of two (2) per cent. I find that rate to be reasonable for the period from 2012 through 2023.
[219] Pre-judgment interest begins to accrue on the date of each default in payment of the full amount owed on a given date – commencing with the first child support payment owed as of January 1, 2012 and continuing to and including the final child support payment owed as of April 1, 2021. Interest continues to accrue beyond April 1, 2021 (to the date of these reasons) for any child support which remains unpaid as of that date.
[220] The order also provides for post-judgment interest at a rate to be determined by the court when the order is issued and entered.
[221] The terms of the order regarding child support and Section 7 expenses are enforceable through the Family Responsibility Office (“FRO”). It is incumbent upon Ms. Boyer to file the requisite documents with FRO, including documents relevant to the calculation of pre-judgment interest.
[222] The court is not in a position, at this time, to fix arrears of child support as of the date of the order. The order made at the conclusion of these reasons leaves it open to Ms. Boyer to arrange for a further date on which the parties may make submissions regarding fixing the arrears of child support as of the date of the order. Additional evidence would required including, for example, a statement from FRO setting out Mr. Brown’s child support obligations from January 1, 2012 to April 30, 2021 (based on the terms of the final order) and payments made to date. If the FRO statement does not also address pre-judgment interest, then additional evidence (i.e., a calculation of pre-judgment interest) is also required.
▪ Payment of Arrears by a Lump Sum
[223] It is now more than 11 years since the litigation was commenced. It is more than two years since the youngest of the parties’ children completed their undergraduate degree and ceased to be a child of the marriage.
[224] Ms. Boyer has had to wait an extraordinary amount of time for Mr. Brown’s child support obligations to be finally determined. More to the point, the parties’ children have each grown up and transitioned into adulthood without the financial support from their father to which they were and remain entitled. However distressed Mr. Brown may have been by the breakdown of the marriage, including the reason for it, that distress did not entitle Mr. Brown to ignore his financial obligations to his children for more than a decade.
[225] In his April 2022 Form 13 Financial Statement (Exhibit 102), Mr. Brown identifies that he owns a home on Des Brousailles Terrace, in Ottawa. Mr. Brown estimates the fair market value of the home as $500,000. For the reasons discussed above with respect to valuation of items required to determine equalization of family property, Mr. Brown may very well be undervaluing the Des Brousailles Terrace property.
[226] In his April 2022 Form 13 Financial Statement, Mr. Brown lists a mortgage of $210,618.07 on his “rental property”. There appears to be approximately $300,000 in equity in the Des Brousailles Terrace property. In addition, Mr. Brown’s evidence is that he generates rental income in excess of $20,000 each year from that property.
[227] If Mr. Brown is required to re-finance the Des Brousailles Terrace property to be in a position to comply with the financial terms of the court’s final order, that situation is entirely of Mr. Brown’s doing. Mr. Brown alone is responsible for his failure, over time, to meet his financial obligations to the parties’ children.
[228] In summary, a further appearance is required for the parties to present evidence and make submissions in support of an order fixing arrears of child support as of the date of this order. Arrears of child support (including pre-judgment interest), once fixed, shall (a) be payable in a lump sum, and (b) bear post-judgment interest.
Issue No. 6 – Section 7 Expenses
a) Ms. Boyer’s Claim
[229] Much of Ms. Boyer’s evidence – both in chief and in cross-examination – was devoted to Section 7 expenses for which she is advancing a claim. Ms. Boyer prepared detailed charts to assist the court in understanding the types of expenses incurred for each of the children. The chart entered as Exhibit “O” was prepared by Ms. Boyer to summarize the expenses, on an annual and total basis, for which she is seeking reimbursement. The total of Section 7 expenses which are the subject of Ms. Boyer’s claim, is $72,361.06.
[230] Ms. Boyer asks that Section 7 expenses in that amount be shared between the parties, on a pro-rata basis, from 2011 through 2021.
[231] It was not until his closing submissions that Mr. Brown informed Ms. Boyer and the court that he does not dispute the total of $72,361.06 for Section 7 expenses calculated by Ms. Boyer. Mr. Brown disputes whether the expenses were actually incurred.
[232] Mr. Brown specifically questions whether any of the medical expenses summarized by Ms. Boyer were actually incurred. He asks the court to completely disbelieve Ms. Boyer’s evidence in that regard and, in turn, to disbelieve her evidence with respect to the balance of Section 7 expenses. Mr. Brown first took that position in closing submissions – leaving Ms. Boyer, as described in her reply submissions, “gob-smacked” that she was hearing that position for the first time. When asked by the court if he was submitting that Ms. Boyer is attempting to perpetrate a fraud regarding Section 7 expenses, Mr. Brown responded that he does not know what fraud is.
[233] For the following reasons, I (a) find that Mr. Brown’s position with respect to Section 7 expenses is entirely lacking in merit, and (b) accept Ms. Boyer’s evidence – both her testimony and documentary evidence – in support of her Section 7 expenses claim:
• Ms. Boyer presented detailed records in support of Section 7 expenses claimed by type, by child, and by year;
• Ms. Boyer kept track of expenses as and when they were incurred. Her calculations are down to the penny;
• Ms. Boyer presented detailed evidence of her efforts to communicate with Mr. Brown over the years to address Section 7 expenses as they were being incurred; and
• There were periods during which Mr. Brown failed to respond to any communication from Ms. Boyer, including communication related to Section 7 expenses.
[234] Section 7 expenses are apportioned based on each party’s income in the subject year. During Part 2 of the trial, Mr. Brown admitted that Ms. Boyer’s Line 150 income for the purpose of apportioning Section 7 expenses is as set out in her notices of assessment. Exhibits 58 to 66 are Ms. Boyer’s notices of assessment for the years 2012 through 2020. There are four years for which the parties’ respective incomes need to be addressed specifically:
• For 2011, I rely on (a) Exhibit 26 (from Part 1 of the trial) as evidence of Mr. Brown’s income, and (b) Ms. Boyer’s evidence (at Part 2 of the trial) as to her income;
• For 2017 and 2018, I rely on Ms. Boyer’s imputation to herself of income in the amount of $50,000. Ms. Boyer acknowledges that she earned a lower than typical income in those year because of her choice to take some time away from work to address her personal and family circumstances; and
• For 2021, I rely on Ms. Boyer’s evidence (at Part 2 of the trial) as to her income in that year.
[235] For Mr. Brown’s income in the years 2012 through 2021, I rely on the income set out in the chart which appears in para. 212, above.
[236] In accordance with the calculations set out in the chart attached as Schedule ‘B’, Mr. Boyer is required to reimburse Ms. Boyer in the principal amount of $40,586.33. For the same reasons given above regarding child support, that amount (a) shall be paid in a lump sum, (b) bears pre-judgment interest at the rate of two (2) per cent per year, and (c) shall bear post-judgment interest.
[237] For each of 2011 through 2020, pre-judgment interest shall be calculated from the first of January of the year following the year for which the payment is due. For example, for the amount owing for 2011, pre-judgment interest shall accrue at the rate of two per cent per year commencing January 1, 2012. For 2021, pre-judgment interest shall be calculated from May 1, 2021.
[238] The chart at Schedule ‘B’ includes the calculation of pre-judgment interest. The calculation of pre-judgment interest does not account for leap years. The calculation runs to June 30, 2023 so as to make the calculation simple (based on 0.5 years for 2023). By doing so, days lost for the exclusion of leap years are roughly made up. The total pre-judgment interest to June 30, 2023, is $5,098.30.
b) Mr. Brown’s Claim
[239] Mr. Brown is also advancing a claim for reimbursement of Section 7 expenses which he alleges he incurred. Mr. Brown’s record-keeping and approach to those expenses falls at the far end of the spectrum from Ms. Boyer’s:
• The expenses for which Mr. Brown makes a claim were incurred years ago. He did not inform Ms. Boyer of the expenses at the time they were incurred. Mr. Brown failed to disclose the expenses to Ms. Boyer in a timely manner, if at all;
• Several of the receipts upon which Mr. Brown relies pre-date the date of separation (August 31, 2011) and therefore fall outside the period during which the Section 7 expenses are to be apportioned between the parties; and
• Some of the receipts upon which Brown relies are duplicative of one another.
[240] In his closing submissions, Mr. Brown made no adjustments as a result of the points identified in the two final bullet points above. In addition, Mr. Brown made a deliberate choice not to respond to the specific points raised by Ms. Boyer, in her closing submissions, about the Section 7 expenses claim which Mr. Brown is advancing.
[241] Mr. Brown’s evidence regarding the Section 7 expenses for which he is advancing a claim is neither reliable nor credible. I also consider Mr. Brown’s failure to address those expenses with Ms. Boyer in a timely manner, if at all. I dismiss Mr. Brown’s claim for apportionment of Section 7 expenses he incurred.
c) Conclusion – Section 7 Expenses
[242] Mr. Brown shall pay Ms. Boyer the principal sum of $40,586.33 and pre-judgment interest in the amount of $5,098.30 – for a total of $45,684.63.
Disposition
[243] For the reasons set out above, I make the following final order:
Relief Not Granted
THIS COURT ORDERS that the request by the respondent, Michael Brown, to set aside paragraph 2.5 of the separation agreement dated November 14, 2011 is dismissed.
THIS COURT ORDERS that the requests by the applicant, Hélène Georgette Boyer, for reimbursement of 50 per cent of each of (a) the disposition costs regarding the sale of 483 Keith Crescent, Orleans, Ontario in 2018, and (b) the $25,000 down payment made on a Claridge home in the fall of 2011 are dismissed.
THIS COURT ORDERS that Michael Brown’s request for RRSP income to be deducted in 2014, 2017, 2018, and 2020 and for other income to be deducted in 2021 – in determining income for the purpose of child support and Section 7 obligations – is dismissed.
THIS COURT ORDERS that Michael Brown’s claim for reimbursement of Section 7 expenses is dismissed.
Equalization of Net Family Property
- THIS COURT ORDERS that the Michael Brown shall pay to Hélène Georgette Boyer the sum of $77,732.51 for equalization of net family property and that said amount, plus any post-judgment interest which accrues on said amount from the date of this order to the date of payment shall be paid to Hélène Georgette Boyer in a lump sum on or before August 30, 2023, at 3:00 p.m.
Child Support
THIS COURT ORDERS that effective January 1, 2012, and on the first day of each subsequent month to and including December 31, 2012, Michael Brown shall pay child support to Hélène Georgette Boyer for two children (Olivier Brown, born March 6, 1997 and hereinafter, “Olivier”; and David Brown, born June 22, 1999 and hereinafter, “David”), in the amount of $1,236.00 based on annual income of $145,550.
THIS COURT ORDERS that effective January 1, 2013, and on the first day of each subsequent month to and including May 31, 2013, Michael Brown shall pay child support to Hélène Georgette Boyer for two children (Olivier and David), in the amount of $1,258.00 based on annual income of $102,604.
THIS COURT ORDERS that effective June 1, 2013, and on the first day of each subsequent month to and including December 31, 2013, Michael Brown shall pay support to Hélène Georgette Boyer for three children (Stephanie Brown, born November 25, 1995 and hereinafter, “Stephanie”; Olivier; and David), in the amount of $1,886.00 based on an annual income of $102,604.
THIS COURT ORDERS that effective January 1, 2014, and on the first day of each subsequent month to and including December 31, 2014, Michael Brown shall pay child support to Hélène Georgette Boyer for three children (Stephanie, Olivier, and David), in the amount of $951.44 based on annual income of $49,628.
THIS COURT ORDERS that effective January 1, 2015, and on the first day of each subsequent month to and including December 31, 2015, Michael Brown shall pay child support to Hélène Georgette Boyer for three children (Stephanie, Olivier, and David), in the amount of $951.44 based on annual income of $49,628.
THIS COURT ORDERS that effective January 1, 2016, and on the first day of each subsequent month to and including December 31, 2016, Michael Brown shall pay child support to Hélène Georgette Boyer for three children (Stephanie, Olivier, and David), in the amount of $951.44 based on annual income of $49,628.
THIS COURT ORDERS that effective January 1, 2017, and on the first day of each subsequent month to and including April 30, 2017, Michael Brown shall pay support to Hélène Georgette Boyer for three children (Stephanie, Olivier, and David), in the amount of $1,752.40 based on an annual income of $89,270.
THIS COURT ORDERS that effective May 1, 2017, and on the first day of each subsequent month to and including December 31, 2017, Michael Brown shall pay support to Hélène Georgette Boyer for two children (Olivier and David), in the amount of $1,341.70 based on an annual income of $89,270.
THIS COURT ORDERS that effective January 1, 2018, and on the first day of each subsequent month to and including December 31, 2018, Michael Brown shall pay child support to Hélène Georgette Boyer for two children (Olivier and David), in the amount of $1,365.10 based on annual income of $91,255.
THIS COURT ORDERS that effective January 1, 2019, and on the first day of each subsequent month to and including April 30, 2019, Michael Brown shall pay support to Hélène Georgette Boyer for two children (Olivier and David), in the amount of $1,387.05 based on an annual income of $93,105.
THIS COURT ORDERS that effective May 1, 2019, and on the first day of each subsequent month to and including December 31, 2019, Michael Brown shall pay support to Hélène Georgette Boyer for one child (David), in the amount of $856.05 based on an annual income of $93,105.
THIS COURT ORDERS that effective January 1, 2020, and on the first day of each subsequent month to and including December 31, 2020, Michael Brown shall pay child support to Hélène Georgette Boyer for one child (David), in the amount of $854.00 based on annual income of $92,900.
THIS COURT ORDERS that effective January 1, 2021, and on the first day of each subsequent month to and including April 30, 2021, Michael Brown shall pay support to Hélène Georgette Boyer for one child (David), in the amount of $285.06 based on an annual income of $33,306.
Section 7 Expenses
- THIS COURT ORDERS that Michael Brown shall pay to Hélène Georgette Boyer, Section 7 expenses incurred from September 1, 2011 to April 30, 2021, (a) the sum of $40,586.33 for the principal amount, and (b) the sum of $5,098.30 for pre-judgment interest on the aforesaid amount – for a total of $45,684.63.
Method of Payment and Enforcement of Child Support and Section 7 Expenses
THIS COURT ORDERS that Michael Brown shall, no later than August 30, 2023 at 3:00 p.m., pay to Hélène Georgette Boyer, in a lump sum, the $45,684.63 referred to in paragraph 19, above, plus any post-judgment interest which accrues on that amount from the date of this order to the date of payment.
THIS COURT ORDERS that unless this order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
THIS COURT ORDERS that Hélène Georgette Boyer shall arrange for the parties to appear before the court for the purpose of fixing the arrears of child support as of the date of this order.
Post-judgment Interest
- THIS COURT ORDERS that, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, this order bears post-judgment interest at the rate of ____ per cent per annum effective from the date of this order.
[244] Ms. Boyer shall be responsible to draft the order and have it issued and entered. In light of Mr. Brown’s historical conduct – including his refusal at times to reply to Ms. Boyer regarding Section 7 expenses, his failure to fulfill his child support obligations, and his failure to fulfill his financial disclosure obligations – I dispense with the requirement for the draft order to be approved as to form and content by Mr. Brown. The draft order shall be filed with the court in the usual manner to be issued and entered. When filing the draft order, Ms. Boyer shall request that it be brought to my attention for signature.
[245] I remain seized of the matter. The hearing at which arrears of child support will be fixed shall proceed before me. When scheduling a date for that hearing, Ms. Boyer must inform the office of the Family Trial Co-ordinator that I remain seized of the matter.
Costs
[246] I find that Ms. Boyer is the more successful of the two parties. She is presumptively entitled to her costs of the proceeding. Following the determination of the arrears of child support owed as of the date of this order, I will provide the parties with directions regarding written costs submissions.
Madam Justice Sylvia Corthorn
Date: June 30, 2023
ONTARIO
Court File Number
Superior Court of Justice, Family Court
FC-12-2425
(Name of Court)
at
161 Elgin Street, Ottawa, Ontario, K2P 2K1
Form 13B: Net Family Property Statement
(Court office address)
SCHEDULE ‘A’
Applicant(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Helene Georgette Boyer
Respondent(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Michael Brown
My name is (full legal name)
The valuation date for the following material is (date)
The date of marriage is (date)
(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND
Nature & Type of Ownership (State percentage interest)
Address of Property
APPLICANT
RESPONDENT
Matrimonial home
483 Keith Crescent, Orleans, ON
$337,500.00
$337,500.00
- Totals: Value of Land
$337,500.00
$337,500.00
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
Item
Description
APPLICANT
RESPONDENT
Household goods
& furniture
6,000.00
2,000.00
Cars, boats,
2004 Honda Odyssey EX-L
8,475.00
vehicles
2007 Mercedes Benz B200
12,000.00
2011 Honda Odyssey
22,000.00
Jewellery, art,
electronics, tools,
sports & hobby,
equipment
Other special
items
- Totals: Value of General Household Items and Vehicles
$28,000.00
$22,475.00
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
Category (Savings, Checking, GIC, RRSP, Pensions, etc.)
Institution
Account Number
APPLICANT
RESPONDENT
RRSP – LIRA
Edward Jones
n/a
20,902.34
RRSP – LIRA
Edward Jones
***04-1-0
76,107.99
RRSP
MRS
***03438
21,004.43
DRSP
MRS
***03453
16,288.38
RRSP
Edward Jones
***05-1-9
5,843.00
Bank Account
TD Bank (Joint Account)
442.19
442.19
- Totals: Value of Accounts And Savings
$21,344.53
$119,685.99
PART 4(d): LIFE AND DISABILITY INSURANCE
Company, Type & Policy No.
Owner
Beneficiary
Face Amount ($)
APPLICANT
RESPONDENT
- Totals: Cash Surrender Value Of Insurance Policies
$0.00
$0.00
PART 4(e): BUSINESS INTERESTS
Name of Firm or Company
Interests
APPLICANT
RESPONDENT
- Totals: Value Of Business Interests
$0.00
$0.00
PART 4(f): MONEY OWED TO YOU
Details
APPLICANT
RESPONDENT
- Totals: Money Owed To You
$0.00
$0.00
PART 4(g): OTHER PROPERTY
Category
Details
APPLICANT
RESPONDENT
- Totals: Value Of Other Property
$0.00
$0.00
- VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])
$386,844.53
$479,660.99
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
Category
Details
APPLICANT
RESPONDENT
Mortgage
483 Keith Crescent, Orleans, ON
216,312.00
216,312.00
Credit Cards
CIBC Visa
23,088.00
TD Visa
5,870.00
Capital One
14,477.66
TD Visa
3,703.54
Car Loans
2007 Mercedes
12,000.00
2011 Honda
22,000.00
Notional Disposition Costs (20 %)
Edward Jones LIRA - Helene ($22,615.42)
4,180.47
Edward Jones LIRA – Mike ($76,107.99)
15,221.59
MRS RRSP – Mike ($21,004.43)
4,200.87
MRS DPSP – Mike ($16,288.38)
3,257.68
Edward Jones RRSP – Mike ($5,843)
1,168.00
- Totals: Debts And Other Liabilities, (TOTAL 2)
$271,450.47
$270,341.34
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
Category and Details
APPLICANT
RESPONDENT
Land (9 Blue Meadow Way).
196,000.00
General household items and vehicles (Helene - $1,500 plus $6,000 for vehicle)
7,500.00
3,250.00
Bank accounts and savings (Helene - $1,906.48 + $500 // Mike - $500)
2,406.48
500.00
Life and disability insurance
Business interests
Money owed to you
Pension or RRSP
11,504.00
21,655.31
3(a) TOTAL OF PROPERTY ITEMS
$217,410.48
$25,405.31
Debts and other liabilities (Specify)
Mortgage on Blue Meadow Way
132,496.00
Disposition costs, at 20%, of RRSP (Helene) and pension (Mike)
2,300.80
4,331.06
3(b) TOTAL OF DEBTS ITEMS
$134,796.80
$4,331.06
- NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)
$82,613.68
$21,074.25
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”
Item
APPLICANT
RESPONDENT
Gift or inheritance from third person
Income from property expressly excluded by donor/testator
Damages and settlements for personal injuries, etc.
Life insurance proceeds
Traced property
Excluded property by spousal agreement
Other Excluded Property
- TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)
$0.00
$0.00
TOTAL 2: Debts and Other Liabilities (item 23)
$271,450.47
$270,341.34
TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)
$82,613.68
$21,074.25
TOTAL 4: Value of Excluded Property (item 26)
$0.00
$0.00
TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)
$354,064.15
$291,415.59
APPLICANT
RESPONDENT
TOTAL 1: Value of Property Owned on Valuation Date (item 22)
$386,844.53
$479,660.99
TOTAL 5: (from above)
$35064.15
$291,415.59
TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)
$32,780.38
$188,245.40
EQUALIZATION PAYMENTS
Applicant Pays Respondent
Respondent Pays Applicant
$0.00
$77,732.51
Signature
Date of signature
Schedule 'B'
Section 7 Expenses
Year
Total
Boyer
Brown
Total
Brown
Brown
Pre-Judgment
Expenses
Income
Income
Income
Share
Payment
Interest
2011
$ 1,678.49
$135,524
$143,341
$278,865
51%
$ 862.77
$ 198.44
2012
$ 1,751.07
$ 79,971
$144,550
$224,521
64%
$ 1,127.37
$ 236.75
2013
$ 2,279.03
$ 23,667
$102,604
$126,271
81%
$ 1,851.87
$ 351.86
2014
$ 6,040.36
$ 29,612
$ 49,628
$ 79,240
63%
$ 3,783.08
$ 643.12
2015
$ 7,899.20
$ 68,096
$ 49,628
$117,724
42%
$ 3,330.00
$ 499.50
2016
$12,922.74
$ 47,609
$ 49,628
$ 97,237
51%
$ 6,595.53
$ 857.42
2017
$13,304.32
$ 50,000
$ 89,270
$139,270
64%
$ 8,527.87
$ 938.07
2018
$11,973.70
$ 50,000
$ 91,255
$141,255
65%
$ 7,735.37
$ 850.89
2019
$ 7,175.88
$108,761
$ 93,105
$201,866
46%
$ 3,309.67
$ 297.87
2020
$ 5,536.14
$107,787
$ 92,900
$200,687
46%
$ 2,562.73
$ 179.39
2021
$ 1,800.13
$ 33,306
$ 33,306
$ 66,612
50%
$ 900.07
$ 45.00
$72,361.06
$40,586.33
$ 5,098.30
COURT FILE NO.: FC-12-2425
DATE: 2023/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HÉLÈNE GEORGETTE BOYER
Applicant
– and –
MICHAEL BROWN
Respondent
REASONS FOR DECISION
(Ruling No. 2)
Madam Justice Sylvia Corthorn
Released: June 30, 2023
[1] “MPAC” is the short form for the Municipal Property Assessment Corporation.
[2] One-half of the disposition costs based on the fair market value as determined is $13,500 = ($675,000 x 0.04) / 2.
[3] $21,655.31 = $19,761.50 + ($19,761.50 x 0.23 x 5/12).
[4] In 2012, two children lived with Ms. Boyer and one child lived with Mr. Brown.