COURT FILE NO.: FS-20-43408 DATE: 2023-10-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Karen Elizabeth Ottewell Applicant – and – Dean Alfred Martin Respondent

Counsel: Fadwa Yehia, for the Applicant Self-represented

HEARD: August 28 and September 15, 2023

ENDORSEMENT

Coats J.

Nature of Proceeding

[1] This matter initially came before me as an uncontested trial on August 28, 2023. I required some further material and the matter was adjourned to continue before me on September 15, 2023. On September 15, 2023, I heard submissions and reserved my decision. These Reasons are my decision.

[2] The Respondent attended virtual court on September 15, 2023. As his pleadings has been struck by Order of Chang J. dated July 20, 2023, he did not participate in the submissions. He simply watched the proceedings.

Issues

[3] The Applicant is claiming the following relief in this uncontested trial:

1. The Applicant seeks ongoing spousal support.
2. The Applicant seeks retroactive spousal support calculated in a lump sum non-taxable to her/non-deductible to the Respondent manner, with the lump sum amount owed to her to be paid in monthly instalments.
3. The Applicant seeks an unequal division of the net family properties of the parties, to be paid by the transfer to her of the Respondent’s RRSPs.
4. The Applicant seeks the return of the trailer to her.
5. The Applicant seeks the transfer of the Respondent’s interest in the mines and minerals to her.
6. The Applicant seeks payment from the Respondent of the sum of $3,828.70 on account of post-separation adjustments for expenses she paid.
7. The Applicant seeks an order severing the divorce and that the divorce proceed by Affidavit.
8. The Applicant seeks costs on a full recovery basis.

Factual Background

[4] The parties were married on August 20, 1988 and separated on August 16, 2019.

[5] The parties have two adult children, who are both financially independent.

[6] The Respondent’s pleadings were struck by Order of Chang J. dated July 20, 2023. Justice Chang also issued an endorsement of this same date providing reasons for the Order.

Analysis

A) Spousal Support

[7] The applicable legislation is section 15.2 of the Divorce Act. Considering the factors the court is to take into consideration in making a spousal support order and the objectives of a spousal support order, I am satisfied that the Applicant is entitled to ongoing spousal support at the high end of the Spousal Support Advisory Guidelines, for an indefinite duration.

[8] The parties were married for over 31 years. The uncontroverted evidence is that the parties had a traditional marriage in many respects. The Respondent was the primary breadwinner for the family and until 2009 the Applicant did not have full-time employment outside of the home. Her primary responsibility was raising the parties’ two children and maintaining their household.

[9] The Applicant did not have a university education. She spent most of her married life supporting the Respondent’s career choices, including a move from Alberta to Ontario.

[10] The Applicant was economically disadvantaged by her role in the marriage, as outlined above, and by the breakdown of the marriage. At separation, the Applicant discovered that the Respondent had depleted all of the equity in their matrimonial home. The property went into foreclosure and was sold by the bank. There is still a balance payable as the sale proceeds were insufficient to cover the debts the Respondent had registered against the property.

[11] The Applicant has suffered economic hardship from the separation. Her lifestyle has been downgraded. She left the marriage with no savings. She had to borrow money from family to secure accommodations. There was an interim without prejudice order for spousal support made on July 21, 2021. Few payments were made under the order.

[12] Calculating spousal support I have used the Applicant’s actual income for each year from 2019 to 2022 and her 2022 income as the projected income for 2023.

[13] I have used the Respondent’s actual income for 2019 and 2020 and have used his average income from 2018 to 2020, which is $164,303 gross per annum, as his imputed income for 2021, 2022 and 2023. It is appropriate to impute income to the Respondent for the following reasons:

i. The Respondent has not provided copies of his tax returns since 2020. ii. The Respondent was working full-time at Instore Corp at the time of separation, earning approximately $160,000 per annum. iii. In April of 2022, at a court attendance, the Respondent advised that he had lost his job in or around February of 2022. He produced a copy Minutes of Settlement signed by his employer, unsigned by him, indicating that he had been terminated and that he had received $130,000 in loans from his employer, which loans were being forgiven. iv. The Respondent then had employment with MidPoint International, earning a salary of $80,000 per annum, a signing bonus of $7,000, plus commission. He started this job on June 27, 2022. He produced a copy of his 2022 T-4 slip. The Respondent was terminated from this employment on or about August 24, 2023 because of a gap between his performance and his employer’s expectations. v. I am satisfied that the Respondent is capable of locating alternative employment that will provide him with an income commensurate to that which he earned at Instore. The evidence is that the Respondent is a skilled salesperson, with years of experience. He has been employed throughout the marriage. He was the primary income earner in the family. vi. The Respondent has failed to provide financial disclosure. The details of this are set out in Chang J.’s endorsement of July 20, 2023.

[14] I have determined that the Applicant is entitled to support at the high level of the Spousal Support Advisory Guidelines. This is based on her being left in a very precarious financial situation at the time of separation and the significant compensatory claim for spousal support based on her role in the marriage. The ongoing monthly amount is $3,371 as set out at exhibit J to the Applicant’s Affidavit, sworn June 22, 2023, which is the DivorceMate calculation. It also shows that support would be for an indefinite (unspecified) duration, subject to variation. This will be the ongoing amount commencing October 1, 2023.

[15] I am fixing the arrears of spousal support from the date of separation to September 1, 2023 at $101,778.50. The calculation supporting this number is found at Exhibit I to the Applicant’s Affidavit of September 13, 2023. I have used the high level of the spousal support under the Guidelines and used the lump sum calculation. This amount is not deductible to the Respondent or taxable to the Applicant, as it has been tax adjusted based on the midpoint of the after-tax cost/benefit to the Respondent and Applicant respectfully. The Respondent shall receive a credit toward this amount for any payment FRO has documented receiving since the date of the interim order. The arrears are payable at a rate of $2,000 per month commencing October 1, 2023.

B) Unequal Division

[16] The Net Family Property Statement that I am relying on is found at Exhibit U to the Applicant’s Affidavit sworn June 22, 2023. I have not allowed any of the Respondent’s debt except for the one included in the calculation, as he did not provide proof of the other debts.

[17] The Applicant seeks an unequal division under s.5(6) of the Family Law Act. She relies on subsections (b) and (d). The test for unconscionability under s.5(6) is exceptionally high – the equal division would have to “shock the conscience of the court” (para. 47 of the Serra v. Serra, 2009 ONCA 105).

[18] I find that the situation in this case does “shock the conscience of the court.” The uncontroverted evidence is that the Respondent, through his gambling, incurred debts and liabilities recklessly. He recklessly depleted the parties’ net family properties resulting in the loss of their home, which was sold by way of foreclosure. When the property was bought in 2006 the parties only had a $400,000 mortgage. When it was sold for $1.4 million there was no net proceeds and in fact the sale proceeds didn’t even cover the debts registered against the home.

[19] The Applicant lost the equity of the parties’ singular most valuable asset and that has left the Applicant in a perilous economic situation, with no security for her future.

[20] Whether gambling can be considered unconscionable is a question of fact (paras. 8 and 23 of Weddel v. Weddel, 2006 CarswellOnt 3901). In the case before me the loss of the entire equity in the home is unconscionable. The Applicant was unaware of the mounting debt and didn’t know of the circumstances until the Sheriff posted a sign on the door related to the foreclosure.

[21] Subsection 5(6) provides that the court may award an amount that is more or less than half of the difference between the parties’ net properties. There is no restriction or cap on the “more than” and, therefore the Act does not limit the award to 100 per cent of the difference between their net family properties. If the difference between their net family properties is zero, a court may still award more than that amount, although the payment cannot exceed the total value of a spouse’s net family property. (Paras. 25, 35 and 36 of Czieslik v. Anyso, 2007 ONCA 305).

[22] According to the Net Family Property Statement, the equalization payment owed to the Applicant is $55,037.79. The Respondent’s total net family property is $121,047.93. I order that the $121,047.93 be paid by the Respondent to the Applicant as an unequal division of their net family properties.

[23] I order that this amount be transferred/rolled over from the Respondent’s RRSP bearing account number 62396 with Canada Life, certificate number 000301395, into the name of the Applicant. I make this order under section 9(1)(d) of the Family Law Act.

C) Trailer

[24] I am satisfied that the 2004 Travelaire trailer is owned by the Applicant. It is showing on her side of the net family property statement. The Respondent shall immediately return it to the Applicant. It is her asset. If he fails to return it by October 31, 2023, he shall pay the Applicant the sum of $5,000, which is the estimated date of separation value of the trailer.

D) Mines and Minerals

[25] There is no legal basis for me to transfer the Respondent’s joint ownership in the mines and minerals to the Applicant. I have made the maximum unequal division permissible.

E) Post-separation Adjustment

[26] The Applicant has set out the amounts at para. 75 of her Affidavit of June 22, 2023. I am satisfied that these payments have been made on behalf of the Respondent. The Respondent shall pay to the Applicant the sum of $3,828.70 to reimburse her for the amounts she has paid on his behalf.

F) Divorce

[27] The Applicant’s claim for divorce shall be severed and proceed by Affidavit.

Conclusion and Costs

[28] Final order to go per draft order filed which I have signed. SDO to issue.

[29] In terms of costs, I have reviewed the Costs Outlined filed. The Applicant is requesting costs on a full indemnity basis in the amount of $22,961.60, inclusive of HST.

[30] The Applicant entitled to costs on a full indemnity basis. The Respondent has acted in bad faith by not providing the disclosure as ordered. Rules 24(8) of the Family Law Rules applies. The details of the Respondent’s lack of providing disclosure are set out in Chang J.’s endorsement of July 20, 2023.

[31] I reviewed the Costs Outline. The hours expended are reasonable. The hourly rates are also reasonable. The amount claimed is proportionate to complexity of the issues.

[32] The Respondent shall pay to the Applicant costs fixed in the all-inclusive sum of $22,961.60. This is in addition to the costs ordered previously. A portion of these costs is related to the property claim. Therefore, I am ordering that the Respondent’s entire RRSP bearing account number 62396 with Canada Life, certificate number 000301395 be transferred/rolled over from the Respondent to the Applicant, with any amount over $121,047.93, to be credited to the Respondent against the costs award.

Coats J.

Released: October 16, 2023