Court File and Parties

COURT FILE NO.: FS-19-00094101-0000 DATE: 2023 07 13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CICEAL ROSE LEVY Applicant

Paul Buttigieg, for the Applicant

- and -

FLOYD WILLIAMS Respondent

Self-Represented

HEARD: June 20 and 21, 2023, in person, Written Submissions on Costs received July 7, 2023

Reasons for Judgment

MCGEE J.

Introduction

[1] This is the Uncontested Trial of Ms. Levy’s Application issued January 18, 2019. The Trial was uncontested because Mr. William’s pleadings with respect to the support and property issues were struck on April 29, 2022, and he chose not to participate on the parenting issues.

[2] The Trial was conducted over two days. The evidence included the oral and affidavit testimony of Ms. Levy, numerous exhibits that included a recent valuation of the jointly owned home, and the parties’ sworn Financial Statements filed throughout the proceeding.

[3] Counsel provided me with Divorcemate calculations for each year since 2019, child arrears and lump sum spousal support calculation charts, a Net Family Property Statement, and a summary of the law with respect to Family Law Act vesting Orders. Since June 21, 2023, I have been able to further review the evidence and the law following on a period of reserve; and I am satisfied to grant the final Orders sought, as revised.

[4] Those Orders include the vesting of Mr. William’s joint titled interest in the former matrimonial home: 25 Atira Avenue, Brampton to Ms. Levy absolutely; pursuant to sections 9(1)(d) i and section 34(1)(c) of the Family Law Act.

Relevant Background

[5] The parties are the separated parents of Taijon, aged 25 Taiyah aged 18 and Tavia aged 16. On August 25, 2018, their 13-year marriage ended on a final basis without any further prospect of a reconciliation. Taijon is now independent and not a subject of this proceeding.

[6] To be determined in this uncontested Trial is the financial provision for the parties’ two daughters, as well as the equalization payment owing to Ms. Levy.

[7] Ms. Levy initially tried to avoid this proceeding. Her counsel wrote to Mr. Williams on September 7, 2018, with an invitation to resolve the legal issues arising from the end of their marriage.

[8] The invitation was not well received, and in November of 2018 Mr. Williams quit his 14-year employment as a letter carrier with Canada Post. Being a letter carrier had allowed him to also run an after-hours appliance repair business, which over the years, had produced significantly more income than he earned at Canada Post. So much so, Ms. Levy deposes, that he had taken a medical leave of absence prior to separation so that he could devote more time to his business.

[9] The business started as cash only and occasional. As it grew, it drew repeat business, and Mr. Williams contracted with an appliance store as a sole proprietor. After separation, he incorporated the business now known as Triple T Appliance Repair, and/or as Flyz Logistics Inc. He is the sole shareholder of the corporation.

[10] Ms. Levy issued this Application upon learning that her former spouse had quit his employment. The Application asks for parenting Orders, support Orders, an equalization payment, and the determination of other issues.

[11] Although Mr. Williams consented to pay table child support of $915 a month for Taiyah and Tavia on January 29, 2019, and he eventually filed an Answer (after receiving a consent Order permitting late filing,) he never fully participated. To the contrary, he took active steps to defeat Ms. Levy’s claims. He refused to provide court ordered financial disclosure. He breached a preservation Order. He never paid the child support to which he had consented. He made no payments on the joint mortgage, municipal taxes, home insurance or other costs of maintaining the home in lieu of child or spousal support.

[12] He was not without means to do so. In addition to his business income, Mr. Williams received a pension payout from Canada Post in December 2018, just before he left for England. He did not disclose that he had, or the amounts: a lump sum of $105,350 and a locked in transfer of $85,547.

[13] Ms. Levy only learned about the pension payout because Mr. Williams left the Canada Post documents in a car registered in her name that Mr. Williams refused to return. When she forcibly retrieved the vehicle in 2019, the pension documents were on the front seat.

[14] Mr. Williams did not make a child support payment until July 2019 when he required his passport to again travel to England. By this time, he was in significant arrears of child support and the Family Responsibility Office (“FRO”) had suspended his passport. He made a payment of $13,641.32 to discharge the arrears so that he could travel to England where his new partner resides. A child of that relationship was born in September of 2020.

[15] As the litigation progressed, Mr. Williams continued to breach court Orders and avoid the payment of child support, while contributing nothing towards his share of the expenses of the jointly owned home. His choice to do so created real hardship for Ms. Levy and the children. The mortgage went into arrears for periods of time, and she had to call on family and friends for financial support.

[16] In addition to being unable to enforce the payment of support, the release of Mr. William’s employment position removed essential health, medical and dental benefits from the family.

[17] Mr. Williams was twice ordered to produce financial disclosure lest his pleadings be struck. Ms. Levy’s request to strike Mr. Williams’ pleadings came before the court for a final time on June 9, 2021.

[18] In comprehensive reasons released April 29, 2022, Justice Kumaranayake detailed the history of the proceedings, the relevant law and her analysis of the facts that lead her to strike Mr. Williams’ Answer with respect to the financial issues. She found Mr. Williams’ noncompliance with prior court Orders to be “extensive, persistent, and willful.”

[19] Justice Kumaranayake dismissed Mr. William’s cross motion for the sale of the home and his request to reduce the amount of child support. She ordered that the parties equally share the girls’ special and extraordinary expenses, including orthodontics. She ordered Mr. Williams to pay costs of $12,000.

[20] That cost award remains unpaid, and Mr. Williams has not further participated in the proceeding despite being able to speak to the parenting issues. Neither has he complied with any of the prior disclosure Orders.

Final Orders on Uncontested Trial

[21] This proceeding was placed before me on June 20, 2023, as an uncontested Trial. No final parenting Orders were sought given the ages of the children and Mr. Williams’ absence from their lives over the past five years. To be determined on a final basis were Ms. Williams’ claims for child support, a proportionate sharing of section 7 expenses, spousal support, life insurance, a payment of equalization, and Mr. Williams’ contribution to the mortgage, renovations, property tax payments and property insurance payments.

[22] Ms. Williams asks that the monies owed on these issues, with the past amounts ordered for costs and costs of this proceeding be enforced by way of an order vesting in her the ownership of Mr. William’s joint titled interest in the home. She further asks for an Order removing Mr. William’s name from the girls’ RESPs so that she can be certain that she can access the funds this fall when Taiyah starts university. I will deal with each set of issues in turn.

Support Claims

[23] The support claims: child support, proportionate sharing of section 7 expenses and spousal support turn on two key findings: Ms. Levy’s income for support purposes and that of Mr. Williams.

Ms. Levy’s Current Income is $69,000

[24] Ms. Levy’s income is transparent. At Trial, she provided a detailed employment history from the period prior to meeting Mr. Williams to present. She related how she built a career prior to the couple becoming parents, and before their marriage. After they were married her employment became occasional and secondary, that is, she organized her work responsibilities around the priority tasks of parenting, often taking short term contracts.

[25] Ms. Levy did not describe any period of shared parenting responsibility with Mr. Williams, whom she stated preferred activities outside of family life. Instead, when the children were younger, she relied on her late sister for support.

[26] Today, she is once again fully employed, working for World-Vision Canada, earning an annual income of approximately $69,000.00.

Mr. Williams Income for Support Purposes found to be $156,000

[27] In contrast, Mr. Williams has made a mystery of his income; not only for the Courts, but also for the CRA. He did not file an Income Tax Return in the five taxation years prior to the parties’ 2018 separation. Neither did he report any of his earnings as an appliance repair technician, perhaps, because it was his fulltime occupation during an extended medical leave from Canada Post.

[28] Ms. Levy testified that her former spouse held a warranty contract with an appliance manufacturer in the years prior to separation and that he continued to do some calls for cash. She relates that he had work for seven days a week, but that he preferred to work as a musician on Sundays, for which he received an honorarium.

[29] Mr. Williams made efforts to catch up his personal tax filings after the separation, but he never produced his corporate tax returns which would show his business earnings, expenses, and benefits. In each of his 2017, 2018 and 2019 personal tax returns – the three years necessary for the filing of his Answer – he only reported his employment income at Canada Post and a small net amount of earnings from the corporation.

[30] The Form 13.1 Financial Statements deposed by Mr. Williams also state that he only took a modest draw from the corporation. His Statement dated March 24, 2019, shows income of $36,000 “before expenses” and his June 2, 2021 Statement sets out income of $30,000 per year. But when Mr. Williams earlier agreed to pay child support at the January 29, 2019 court attendance, he represented his income to be $60,000 per year.

[31] Mr. Williams personal Income Tax Returns for 2018 and 2019 shed no further light on his actual income. He has not filed a return since the 2019 taxation year. He has refused to provide any source documentation to evidence his actual business earnings such as contracts, invoices, the purchasing of supplies, or subcontracts. As a result, none of his stated income figures can be verified.

[32] On the whole of the evidence, including Ms. Levy’s testimony describing his present lifestyle and circumstances, I am satisfied that Mr. Williams has been earning a significant income as a fulltime, self-employed appliance repair technician. Ms. Levy related Mr. William’s boasts to her that he earned more in one day as an appliance repairman than he earned in two weeks at Canada Post.

[33] Ms. Levy asks that I impute annual income of $263,000 to Mr. Williams and cites how he paid $2,200 per month for the mortgage prior to separation and maintained other expenses.

[34] Section 19(1)(f) of the Federal Child Support Guidelines permits me to impute income to a payor who fails to evidence his income while under an obligation to do so.

[35] I start with a baseline of approximately $60,000, being Mr. Williams’ average salary income from Canada Post without overtime. Justice Kumaranayake’s reasons for striking his pleadings set out the availability of this income and the deliberate nature of its forfeiture. On the record before me, I agree with her conclusion that this employment income was available to Mr. Williams but for his decision to quit.

[36] A court may also impute income where it finds that a party has hidden or misrepresented relevant information respecting a person’s income, either to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes, see: Kinsella v. Mills, 2020 ONSC 4785. For this reason, I am also prepared to impute an additional amount to Mr. Williams for his earnings as a repair technician, as well as factoring in the receipt of cash.

[37] When additional income is imputed to a parent who engages in cash, the undeclared income is “grossed up” to take account of its tax-free nature, notwithstanding the payor’s liability to be reassessed by CRA, see Ali v. Williams-Cespedes, 2015 ONSC 3560.

[38] Although I have considerable discretion in imputing additional income to calculate support, particularly when evidence respecting a party's income is not credible, I am not prepared to impute the amount sought by Ms. Levy. Her proposal is predicated on two sets of fulltime earnings which in my view, would be a double counting of his income.

[39] Having reviewed the available evidence, I impute fulltime annual income for the appliance repair business in the amount of $156,000. I believe this amount to also represent what was available to him when he had a Canada Post salary, and he ran his business after hours. I accept Ms. Levy’s evidence that Mr. Williams was earning at least $100,000 per year. Even if this figure represents top line sales, and business expenses are to be deducted, (not personal or hybrid expenses) the remainder would be grossed up for support purposes to reflect pre-tax income.

[40] In other words, I am satisfied by the evidence that Mr. William’s income from full-time employment with Canada Post and after-hours self-employment income roughly equates to Mr. William’s fulltime self-employment income and benefits as the owner of his own repair business. I find that amount to be $156,000.

[41] I have no evidence that his income would have declined during the pandemic, as it is essential work that could have been done in isolation from others.

Table Child Support to July 31, 2023

[42] The table amount of child support for two children on income of $156,000 is $2,149 per month. Mr. Williams vacated the home in January 2018, so I start monthly child support as of February 1, 2019. Fifty-five months thereafter takes me to August 31, 2023, creating support owing of $118,195.

[43] Mr. Williams has paid some child support, but none since his last payment of $200 on February 1, 2022. According to a May 29, 2023 Statement of Arrears provided by Ms. Levy, the FRO has been successful in collecting $24,949.66 from the date of the January 2019 consent Order. This amount serves as a credit to this final Order, for a balance owing (rounded) of $93,245.

Spousal Support to July 31, 2023

[44] I find that Ms. Williams is entitled to compensatory spousal support given the economic circumstances of each spouse’s role during the marriage. As set out by Chappel J. in Thompson v. Thompson, 2013 ONSC 5500, at para 55, compensatory support recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage.

The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

[45] Here, Ms. Levy managed the home and children while Mr. Williams built up a successful business that provided him with the means to leave a stable employment position and begin a second family. She was out of the workforce during a critical period of her career and has suffered an economic disadvantage. I am satisfied that her financial ability to meet her own needs has been impaired due to her placing the needs of the family ahead of her own.

[46] Her counsel has provided me with Divorcemate calculations for spousal support using Ms. Levy’s actual income in each post separation year starting with 2019, and the imputed income of $156,000 for Mr. Williams. Counsel has also provided me with a calculation for the range of net of tax values for a lump sum spousal support award.

[47] The lump sum calculation is predicated on a range for monthly spousal support of $1,885 to $3,977 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 5 years and a maximum duration of 10 years from the date of separation. It is calculated as having a duration of 10 years with a present value discount rate of 1.25%. In reviewing the calculation, I note that it uses the imputed income of $156,000 for Mr. Williams and the amount of $60,000 for Ms. Levy’s income despite her earnings being below that mark in certain post separation years.

[48] On the midpoint of the lump sum range generated by these variables, Mr. Williams after-tax cost for spousal support is $158,072 and Ms. Levy’s after-tax benefit from periodic spousal support is calculated as $196,069.

[49] Since the Court of Appeal released Davis v. Crawford 2011 ONCA 294, trial courts have generally been reluctant to award a lump sum of spousal support in longer marriages. It is a highly discretionary award that must not be made in the guise of redistributing assets. There are several considerations, such as whether there is any prospect of periodic support being paid, whether there is a likelihood that it can be enforced, and whether the payor can make a lump sum payment from capital without undermining his future self-sufficiency.

[50] There are disadvantages to a lump sum award: the real possibility that the means and needs of the parties will change over time, resulting in the inequity of being deprived of the apply to seek a variation; the inherent difficulties in calculating an appropriate award when the parties have differrent marginal tax rates and the need for the award to be discounted to reflect the present value of future payments. I can include one further challenge for parents of young adults: calculating the proportionate shares of post-secondary education expenses.

[51] A court considering an award of lump sum spousal support must weigh the perceived advantages of making an award against its many disadvantages.

[52] Here, I am satisfied to make a lump sum award because:

a) There is a significant history of nonpayment of child support and a real risk, if not a certainty that ongoing periodic payments will not be made. In such circumstances, a lump sum paid from available capital is appropriate, see: Makeeva v. Makeev, 2021 ONCA 232.

Mr. Williams has removed employment income as a source for support enforcement by leaving his long-time employment with Canada Post and by changing his business from that of a sole proprietor to a single shareholder corporation Mr. Williams has made support enforcement more difficult and time consuming, placing an additional burden on our publicly funded institutions to enforce his family obligation.

By not filing his Income Tax Returns since 2019, even diversion monies are no longer available to satisfy his support obligations.

b) The jointly owned home is an asset against which the payment can be easily and immediately realized, and there is some urgency in dealing with the home because the joint mortgage term has expired, and the bank will not extend the current mortgage without triggering much higher rates.

c) On the record before me, the transfer of Mr. William’s joint interest in the home will not affect his ability to be self-sufficient. Ms. Levy testified that he currently resides independently on a rural property. He has effectively abandoned the asset since December 2018, having made no payments towards it after that time. It is reasonable to infer that for the past five years he has been able to build wealth elsewhere, without contributing to child or spousal support or to the costs of the home; while benefitting from the increase in its value. It is the current value of his joint title that is an offset against any lump sum rather than his equity at the time of separation.

d) The lump sum amount being sought is based on a 10-year period of entitlement which will expire in August 2028. Although this is stated in the SSAG calculation to be a maximum duration, I find it to be fair and proportionate to the length of the marriage, the roles adopted during the marriage and the paucity of support paid to date. Ms. Levy has had no opportunity to date to start to arduous journey to financial independence. A further five years of spousal support is appropriate.

e) Given the stated duration of only five more years, there is a limited period for a future variation and at this time, no evidence that the parties’ respective circumstances will materially change. Neither spouse is close to retirement age and neither has demonstrated illness or disability.

[53] Having decided that a lump sum is appropriate, I turn to the amount.

[54] The amount that I choose to award is $196,000 because it is a midpoint range that reflects Ms. Levy’s full after-tax benefit. Given the history of avoiding child support and an equalization payment, and the resulting financial hardship to Ms. Levy, I choose not to use the lesser net value of $158,072 that Mr. Williams would have paid had he participated in the proceeding.

[55] The difference between the two figures results from his higher marginal tax rate assuming his income was fully reported in his Tax Returns. He would have received a higher tax deduction than Ms. Levy’s would have had to pay in tax on the receipt of spousal support – which is taxed as income. In my view, he ought not be granted the lesser amount when he paid no spousal support or any amount that could have been a credit to spousal support or affected its range – such as payments towards the jointly owned home which accommodated Ms. Levy and the children.

[56] Moreover, the amount of $196,000 already builds in a midpoint range for spousal support, and here, the high range within the SSAG calculation would not have been inappropriate. Ms. Levy would have used the spousal support to maintain Mr. William’s half of the joint mortgage obligation, a payment for which he receives a direct benefit. As above, it is today’s equity that is measured against his past and ongoing obligations, not the equity in the home at the date of separation.

Section 7 Expenses

[57] Taiyah and Tavia are very talented young women. Their mother has insured that they have had all the advantages of private music and sewing lessons, cooking classes, sports, tutoring and extra curriculum courses and driving lessons in addition to coverage of their health medical and dental expenses.

[58] Nonetheless, a proportionate sharing of Section 7 activity expenses is not automatically granted. A claimant must show that the expense was necessary for the child and within the reasonable means of the parents.

[59] Ms. Levy seeks $21,512 as Mr. William’s proportionate share of the girls’ section 7 expenses from 2019 to present. A sizable portion of that amount relates to orthodontics which I find de facto to be necessary and reasonable.

[60] In the ordinary course, the balance of the claimed expenses requires further analysis. At first glance, many of the activity or educational expenses would have exceeded Ms. Levy’s reasonable means at the time that they were incurred. I learned that certain of the expenses were covered or assisted by extended family, rather than Ms. Levy herself. To claim a proportionate share, the claimant must have already paid the full amount.

[61] However, I need not do an extensive analysis of the activity and educational expenses claimed to the date of Trial because the value of the claims made by Ms. Levy already well exceed Mr. William’s half interest in the home.

[62] For ease of calculation, I place a value on the section 7 expenses to August 31, 2023, exclusive of any post-secondary expenses (some of which may already have had to have been paid for the 2023-2024 school year) of $15,000. This amount reflects the uninsured costs of the girls’ health, medical, dental and orthodontal expenses, rounded up to include tutoring necessary to assist in the innate educational challenges during Covid.

Equalization Payment

[63] The parties’ respective net family property, inclusive of Mr. William’s pension rollout, net of tax was carefully examined over the course of the Trial.

[64] The Net Family Property Statement that was initially presented by counsel was adjusted to remove any duplication and accurately reflect the joint ownership of the matrimonial home. Certain debts were removed from the final version based on findings that I made during the trial.

[65] I am satisfied that the resulting calculation of $85,821.79 is the equalization payment owing from Mr. Williams to Ms. Levy. A copy of the final NFP setting out this amount shall be attached as Schedule B to these reasons.

Joint Expenses of the Home

[66] Ms. Levy also seeks one half of the mortgage, property tax, property insurance and renovation costs of the home.

[67] I decline to order Mr. Williams to pay one half of the mortgage costs since 2018. Ms. Levy has had the exclusive use of the property since January 2019 and with this decision, she will have received full amounts for child support and spousal support, which if paid at the time, would have been used to maintain the mortgage. In my view, to award both half the mortgage and full child and spousal support would be to double count Ms. Levy’s entitlements.

[68] I am prepared to award Ms. Levy reimbursement of one half of the property taxes: $21,782 and one half of the property insurance payments: $5,553. I am not prepared to credit her by one half of the renovation costs in the absence of fulsome evidence that they were incurred. As a result, Mr. Williams shall pay to Ms. Levy post separation costs of $27,335 ($21,782 + $5,553.)

[69] When I requested a current parcel register for 25 Atira Avenue, Brampton, it was discovered that Mr. Williams had incurred a $20,000 Legal Aid Lien on the jointly owned home. This will be a further reimbursement to her because it is Mr. William’s expense that Ms. Levy will have to pay.

Costs of the Undefended Trial

[70] I outlined my decision at the conclusion of the Trial, so that I could receive costs submissions and include those amounts in these reasons.

[71] Ms. Levy has been the successful party on this uncontested Trial and is entitled to her costs. Her counsel seeks a full recovery of fees in the range of $45,000 to $57,000 inclusive of disbursements and HST, exclusive of steps in the case that do not attract an award of costs or for which costs have already been assessed.

[72] To determine the amount of costs, I must consider the factors as set out in Rule 24(12)(a) of the Family Law Rules which read:

SETTING COSTS AMOUNTS (12) In setting the amount of costs, the court shall consider, (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter. O. Reg. 298/18, s. 14.

[73] In subsequent submissions received Friday, July 7, 2023 counsel further provided me with his client’s February 4, 2021 Offer to Settle which contained terms as favourable or more favourable than those awarded at Trial. In her Offer, Ms. Levy offered to pay Mr. Williams $39,584.29 for the transfer of his equity in the home, in satisfaction of all claims. Rule 18(14) of the Family Law Rules therefore operates to provide a full recovery of Ms. Levy’s reasonable fees from the date of the Offer unless the court orders otherwise.

[74] An Offer within a Settlement Conference Brief cannot be considered in a Rule 18 analysis, see Strifler v. Strifler 2014 ONSC 2890 at paras 20 and 21.

[75] Costs awards are intended to change litigation behaviour by injecting a cost-benefit analysis for non-participation or unreasonable litigation behaviour. As stated by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, costs are designed to foster four fundamental purposes:

a) to partially indemnify a successful litigant; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.

[76] This matter could have been resolved through negotiation. Instead, Mr. Williams chose to engage in unreasonable litigation conduct.

[77] In reviewing the fees proposed, I am satisfied that a reasonable and proportionate amount of costs is $48,000 inclusive of disbursements and HST. This amount is a partial recovery of fees up to the date of service of the February 4, 2021 Offer and a full recovery thereafter of Ms. Levy’s reasonable fees. Counsel’s hourly rate is reasonable, the time spent was necessary and the file was progressed as efficiently as possible given the Covid delays in the court system.

[78] Having determined the issues of child support, section 7 expenses, spousal support, equalization, post separation adjustments and costs and making Orders accordingly; I move into Ms. Levy’s claim to satisfy these Orders through a further Order vesting Mr. William’s joint titled interest in the home, in her, absolutely.

Vesting Order to Issue

[79] The court's broad general power to grant a vesting Order is found in section 100 of the Courts of Justice Act see Lynch v. Segal, [2006] O.J. No. 5014. In the specific context of family law claims, the Family Law Act confers an equally broad power to grant a vesting Order to satisfy the payment of an equalization of net family property at section 9(1)(d)(i), and to satisfy an obligation for support at section 34(1)(c).

[80] Specifically, section 9 (1)(i) of the Family Law Act reads:

9 (1) In an application under section 7 [equalization], the court may order, (d) that, if appropriate to satisfy an obligation imposed by the order, (i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or (ii) any property be partitioned or sold.

[81] Section 34 (1) (c) gives the Court the power to make a final order,

(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;

to enforce a payment of support.

[82] Together, these sections operate to allow me to vest in Ms. Levy, Mr. William’s joint titled interest in the former matrimonial home: 25 Atira Avenue, Brampton if I am satisfied that his net equity in the property is wholly offset by the claims being enforced under section 9(1)(i) and 34(1) (c.) I have discretion in determining the amount of that net equity with respect to any notional disposition costs, which could include the costs of discharging a joint mortgage and transferring title; so long as it is the value of the property at the time of transfer, not the value on the date of separation.

[83] If the net equity is not wholly offset by the claims being enforced, the property can be ordered sold, so that each owner receives his or her remaining interest after payment of all monies owed.

[84] Ms. Levy has commissioned and filed a March 15, 2023 appraisal of the home showing a value of $1,175,000, less:

Proposed legal fees on sale ($1,500) Costs of sale: a 5% commission for selling, inclusive of HST ($58,750) and Discharge of the current joint mortgage of $288,759

The resulting net equity in the home is $825,991. Mr. William’s half is therefore $412,995.50

[85] The amount of $412,995.50 is wholly offset by:

-$93,245 in child support to August 31, 2023 -$196,000 in net of tax lump sum spousal support -$15,000 in section 7 expenses

• $85,821 in equalization payment -$27,335 in post separation expenses. -$20,000 to discharge Legal Aid lien -$12,000 in Costs ordered on September 30, 2022 -$48,000 Costs awarded on the whole of this Application $497,401 total.

[86] Final Order to issue transferring Mr. William’s joint titled interest in 25 Atira Avenue, Brampton Ontario to Ms. Levy pursuant to paragraphs 12 and 13 of the draft Order, and subject to a requirement that she discharge the joint mortgage and the Legal Aid lien from title at the same time that title is transferred.

[87] If a further Order is necessary to affect the title transfer, the proposed draft Order with an explanatory affidavit may be sent to my assistant at Cindy.Martins@ontario.ca.

[88] To be clear, no further Order is available to Ms. Levy in satisfaction of the amounts set out in paragraph 85 above, or to address the difference between $412,995.50 and $497,401.

[89] Vesting is a discretionary enforcement remedy that inextricably intertwines the satisfaction of legal obligations with a transfer of property. It is not an exact calculation that takes the form of a monetary Order bearing interest. If a claimant wishes an exact enforcement, her remedy is to sell the property and pursue any excess balance through seizure and sale, garnishment or FRO enforcement.

[90] None of the above amounts ordered for child support, section 7 expenses, lump sum spousal support, equalization, post-separation expenses or costs is a stand-alone Order capable of its own enforcement.

[91] For this reason, the arrears calculated by the FRO as owing up to August 31, 2023 must be vacated. A Support Deduction Order shall deem all arrears under enforcement to be zero as of August 31, 2023. If any monies have been collected since May 29, 2023, being the date of the Statement of Arrears upon which I relied in these reasons, those monies shall be a credit to the ongoing Order for child support as set out below.

Further Orders to Issue

[92] I make six further final Orders:

1. Commencing September 1, 2023, Mr. Williams shall pay child support of $2,149 per month, on the first of each month on imputed income of $156,000 for two children if Taiyah is in fulltime education, and she resides at home while in fulltime school. If she does not attend school, child support shall be in the amount of $1,342 per month for Tavia only. A draft Order and SDO may be sent to my assistant with proof of Taiyah’s enrolment so that a SDO can issue accordingly.
2. Mr. William’s name shall be removed from the joint RESP Accounts pursuant to para 16 of the draft Order and Ms. Levy shall be responsible for administering the funds. The value of the funds as of September 1, 2023 is deemed to be notionally divided in half, with each daughter beneficially designated as to a one-half value.
3. Mr. Williams shall not be responsible for the proportionate sharing of any section 7 post-secondary education expenses for either daughter until such time as her designated half of the RESP funds is depleted.
4. When a daughter’s RESP funds have been depleted, each parent shall pay one half of the post-secondary education expenses that the daughter cannot fund. The equal division of these section 7 expenses results from the inclusion of the lump sum of spousal support in Ms. Levy’s income.
5. Mr. Williams shall maintain his current life insurance policy with Sun Life Financial in an amount sufficient to secure his obligation for ongoing child support. Should he fail to do so, child support shall be a first obligation upon his estate.
6. The claim for a divorce is severed from the corollary issues.

[93] These reasons and any communications to my assistant are to be copied to Mr. Williams by email. His approval as to the form and content of the draft Orders is dispensed.

McGee J.

Released: July 13, 2023