Cedeno v. Cedeno, 2023 ONSC 6686

COURT FILE NO.: FS-21-27262 DATE: 20231211

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michelle Cedeno, Applicant

• and -

Frederico A.C. Cedeno, Respondent

COUNSEL: Shana Gordon-Katz and Lauren Harvey, for the Applicant Not Participating, for the Respondent

HEARD at Toronto in writing November 17, 2023

REASONS FOR JUDGMENT

Kristjanson, J.

1This is a decision on an uncontested trial involving parenting issues, retroactive and prospective child and spousal support and section 7 expenses, equalization of net family property, and post-separation adjustments.

Factors Relevant to Uncontested Trial

2Rule 10(1) of the Family Law Rules, O. Reg. 114/99, provides a respondent thirty days in which to serve and file an Answer. One of the consequences of failing to file an Answer is that under Rule 10(5), the Applicant may choose to proceed to an uncontested trial. “Uncontested trial” is defined in Rule 2(1) as “a trial at which only the party making the claim provides evidence and submissions.” Rule 23(22) provides that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given. The Applicant chose to proceed to an uncontested trial on Form 23C affidavit evidence.

3Since this is a trial, I must apply the rules of evidence to documents and affidavit evidence relied on. As Somji, J. held in Obhan v. Chana, 2021 ONSC 2877 at para. 5:

It is important to note that the mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the Applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.

4The Applicant did not file a factum. This is a trial. As a trial judge I must make findings of fact based on evidence. I must apply statutory provisions. I must consider the case law. An uncontested trial by Form 23C takes place in chambers. I was provided no assistance regarding how or why I should decide the case based on the affidavit evidence filed. I have had to make my own determinations of law in the absence of any submissions by the Applicant.

5This was not a simple case, given the large number of issues to be dealt with. This is illustrated by the forty-four paragraphs in the Order originally sought. A factum should be filed on an uncontested trial where the facts (a) are not simple, straightforward, and supported by well-organized documentary evidence, or (b) where a determination may depend on arguable issues of law. The factum should set out the evidence, the governing authorities, and statutory provisions, and tie the law to the facts. Otherwise, the risk is that a judge in Chambers, struggling for days (as is the case here) to make sense of a lengthy affidavit and exhibits, dealing with a bewildering number of issues, will draw conclusions the Applicant does not agree with.

6Indeed, this case is a cautionary tale: trial-worthy evidence is required. Receipts are required where retroactive section 7 expenses are claimed. Where claims are made about transfers of large sums of money to the other party, then proof of those transfers is required. Where important conversations are alleged which have significant and material financial consequences, then details about that conversation will be critical – and preferably confirmed by a text or email. Inconsistent documents must be dealt with.

7An uncontested trial is not a rubber-stamp. While judges have discretion to require a party to produce additional evidence, or to provide oral evidence, it is not the judge’s responsibility to cure deficiencies in an applicant’s record. Busy Family lists mean it is difficult for a judge to engage in multiple rounds of fact-finding through back and forth with counsel or a party. An uncontested trial is a trial, set for a full hearing, and determination, on the date it is assigned to the judge.

Issues

8The main issues in this uncontested trial are:

(1) Is the case appropriate for an uncontested trial? (2) What parenting time and decision-making responsibility orders should be made? (3) Should a blanket advance relocation order be made? (4) What are the parties’ incomes for support purposes? (5) What amount of retroactive child support is owed, and what prospective child support order should be made? (6) Is the Applicant entitled to spousal support? If so, in what amount? (7) What are the eligible retroactive section 7 expenses? What prospective section 7 order should be made? (8) Should support be secured by life insurance, and if so, in what amount? (9) What amount is owed by the Respondent to the Applicant for equalization of net family property? (10) What amount of post-separation adjustments are owed? (11) Should a divorce be granted? (12) What costs should be paid by the Respondent?

Service Made, No Answer Filed

9I am satisfied that the Respondent was personally served with the Application on January 7, 2022. The Respondent advised the Applicant that he had received the Application but has never responded to inquiries from counsel or filed an Answer. Counsel advised in February 2023 that the Applicant would be proceeding to an uncontested trial. The Respondent took no steps in response. It is appropriate to proceed with this uncontested trial on affidavit evidence.

Facts re Parenting Issues

10The parties began living together in 2007 and were married on August 8, 2008. The parties have two children, O.C., born in 2013, and A.C., born in 2014. The Applicant states that A.C. has been diagnosed with moderate to severe autism spectrum disorder (“ASD”), although no medical evidence was filed.

11The parties separated on January 1, 2020, but continued to reside in the matrimonial home until May 15, 2020. Since May 15, 2020, the children have resided with the Applicant on a full-time basis. The Respondent has exercised infrequent, sporadic, and limited parenting time.

12The Applicant was mainly responsible for the day-to-day care of the children during the marriage, and has historically been the primary parent. The Applicant describes a significant history of family violence, including yelling, verbal abuse, and physical abuse. The Applicant states the abuse continued post-separation through threatening and harassing text messages, WhatsApp messages, and Instagram posts. Having reviewed the messages, they are threatening and abusive. The Applicant states that she is filed police reports, although no such reports were provided. The Applicant’s evidence is that the Respondent has alcohol and drug abuse issues, and after separation he entered a rehabilitation program.

13The Applicant’s evidence is that the Respondent’s parenting time has been sporadic, and he has refused to enter a consistent parenting time schedule. The Applicant states she is in increasingly concerned about leaving the children in his care given the violence, addiction, and psychological issues. She attaches a log of excuses the Respondent has given not to see the children. Some of these are in the text messages as well, which show several cancellations. The Applicant states that the Respondent’s refusal to commit to a stable schedule is unreasonable, as the children require stability and a proper schedule they can rely on. A.C. in particular relies on schedules and routines because of his ASD. The Applicant’s evidence was initially video calls were offered every evening, but the Respondent was unreliable.

14The evidence is the Applicant has made all major decisions pertaining to the children. Since separation, the Respondent has not expressed a desire to be more involved with the children. The evidence is the parties cannot work together to make major decisions on behalf of the children because of the power imbalance resulting from the Respondent’s threats and abuse. I accept that the messages in evidence show threats and abuse, which is family violence continuing post-separation.

15The Applicant is unaware of where the father is residing. She states that the Respondent has advised that his roommate has a large dog which has attacked children in the past.

16The Respondent once refused to consent to the Applicant traveling with the children to the United States in the summer to spend time with their maternal aunt and cousins. The Respondent later executed the travel consent.

17Since the Respondent has failed to file a Form 35.1 parenting affidavit, the Applicant states she did not seek any orders pertaining to the Respondent’s parenting time. She states that she would facilitate parenting time in the children’s best interests as agreed to between the Respondent and herself in advance and in writing. She states it should only occur at the Respondent’s residence if there are no pets or animals present in the home.

Analysis re Parenting Issues

18The parenting orders are to be made in the best interests of the children. I must look at the issue from the children’s perspective, not from the perspective of the parents. In determining the children’s best interests, I must consider all factors relating to the circumstances of the children, including those set out in ss. 16(3) - (5) of the Divorce Act. As set out by Chappel, J. in J.T. v. E.J., 2022 ONSC 4596 at para. 93, a case under the provincial statute but equally applicable to the Divorce Act:

The list of considerations relevant to the best interests analysis… is not exhaustive. For instance, a parent’s history of conduct in relation to the child’s financial needs is not specifically enumerated, but the courts have held that a party’s failure to financially support their children regularly in a responsible manner is a relevant consideration in assessing where the child’s best interests lie (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)). The court is not required to specifically enumerate and analyze the criteria set out in section 24 of the Act, but rather must consider all of the relevant information in the particular case that it is called upon to decide (Walsh v. Walsh, [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.); Phillips v. Phillips, 2021 ONSC 2480 (S.C.J.), at para. 47 M.A. v. M.E., 2021 ONCJ 555 (O.C.J.), at para. 31; A.E. v. A.E., at para. 89).

Sole Decision-Making

19The first issue is whether the Applicant should have sole decision-making responsibility. I consider the relevant factors on decision-making responsibility summarized by Chappel, J. in J.T. v. E.J., 2022 ONSC 4596 at paras. 102-105.

20The most important factors here are:

• The mother has made all decisions for the children since separation and was responsible for decisions about the children before separation. She has made good decisions for the children. Her Form 35.1 Affidavit (decision-making, parenting time) shows the decisions she has made, and intends to make.
• The father’s threats and abuse, in texts and social media messages, constitute family violence, continuing after separation. The evidence shows that the parties cannot cooperate and communicate in a manner that would be appropriate to joint decision-making, because of the continuing family violence.
• In failing to file an Answer or participate in any way, the father has shown his lack of interest in decision-making responsibility.
• The father’s failure to financially support the children in a responsible manner after separation “reflects poor judgment and an inability to prioritize the child’s interests and needs”: (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)).
• The father has not filed a Form 35.1 Affidavit (decision-making, parenting time).

21I find that there is no possibility of joint decision-making responsibility. The children need stable, consistent, clear, and responsive decision-making. The Applicant has been exercising sole decision-making responsibility since separation. Her Form 35.1 Affidavit indicates she can make good choices. The Respondent has nothing to contribute, has not filed a Form 35.1 affidavit, and it would not be in the best interests of the children to make an order for joint decision-making. The Applicant will have sole decision-making responsibility.

Parenting Time

22The father has not participated, nor has he filed a Form 35.1 affidavit requesting parenting time. I therefore make the order requested, that the father will have parenting time as agreed to between the parties.

Travel Consent, Document Renewal, Non-Removal

23The evidence shows that the father refused a travel consent, although ultimately agreed to the request. Given the post-separation family violence, including the threatening messages, it makes no sense to require the mother to pursue the father for travel consents. It is in the best interests of the children to be able to travel in a predictable manner. The Respondent’s consent to the children’s travel is dispensed with. The Applicant’s sole consent/signature will be sufficient for the children to travel within Canada or internationally. For the same reasons, the mother may renew passport and government identification without the father’s consent.

24The Applicant seeks an Order that the Respondent shall not remove the children from the Greater Toronto Area and Province of Ontario without the Applicant’s prior written consent or an Order permitting him to do so. The Applicant has not provided the Court with any assistance as to why this Order is required. There is no history of taking the children anywhere, post-separation, nor threats of abduction, and the Respondent has lived in the Toronto area since at least 2008. He has a job in Toronto. I do not make a non-removal Order. The Respondent may only travel internationally with the written consent of the Applicant or Court Order.

Blanket Advance Relocation

25The Applicant seeks an order that she “may relocate with the children and/or change the children’s residence as required, in accordance with the children’s best interests, without the Respondent’s consent. The Applicant shall provide the Respondent with notice of any move and/or new residence for the children, but she shall not require the Respondent’s consent or court order to relocate.”

26I decline to make the Order. The Divorce Act, s. 16.9 sets out specific requirements for notice. The children are still young, and there is always a possibility that the father will exercise more parenting time with the children, or bring a motion to change.

27There is no relocation plan. If the Applicant chooses to relocate, she will serve the notice required, and the Respondent will be able to object. The Divorce Act does not contemplate a blanket relocation pre-approval. Any relocation must be analyzed in the context of the circumstances at the time, and must be made in the best interests of the children at the time.

28The request for the blanket advance relocation Order is denied.

29The Applicant may change the residence of the children, but must give the Divorce Act, s. 16.8 notice.

Income for Support Purposes

30There has been very little disclosure by the Respondent. The Applicant through her counsel requested disclosure on June 12, 2020. When the Application was served, the Respondent would have been provided with an Automatic Disclosure Order under Rule 8.0.1, which sets out the financial disclosure required. The only income disclosure is the Respondent’s 2020 T4, Notices of Assessment, 2021 income tax return summary, and the Family Law Value of the Respondent’s pension.

31The Applicant’s income is based on full-time work. In 2020 she earned $56,104. In 2021 she earned $56,315. In 2022 she earned $59,718. This is the Applicant’s income for calculating section 7 expenses.

32The Respondent also earns employment income. During the marriage he was a mechanic with the City of Toronto. The Applicant relies on income tax summaries apparently prepared by a firm or software for years 2017 to 2019. For 2020 there is a Notice of Assessment, and for 2021 the income tax return summary.

33The Applicant seeks to impute income for 2022 in the amount of $100,000. But I do not accept that the Applicant has established an evidentiary foundation for this imputation.

34The Applicant’s evidence is:

44. In 2017, the Respondent injured himself and advised me that he applied for long-term disability wherein he would receive 70% of his salary. This is the reason for the slight reduction to his income following 2017. However, the Respondent has never been willing to disclose the details or the circumstances pertaining to his injury and the terms pertaining to his Long-Term Disability.

45. The Respondent has advised me, and I verily believe same to be true, that he has returned to work as of 2022, but he has not provided me with any information as to the terms of his employment, nor his annual income. The Respondent did, at one point, advise me that he received a promotion since returning to work and coming off of long-term disability. Specifically, the Respondent advised me, and I verily believe same to be true that the Respondent is earning approximately $100,000 annually.

35These are bald statements, based broadly on a year – not a date, nor a specific conversation. There is no context, nor the circumstances in which the statements were allegedly made. And to rely on the Respondent making a statement in 2017 that the Respondent had applied for long-term disability at 70% of salary, raises more questions than answers. The parties were married in 2017. They did not separate until 2020. The Applicant does not attest that, for example, she then observed for the next three years that he did not work, or did not leave the house for work, or engaged in physical therapy, or had several operations. Although married and living in the same house for three more years, she appears to base the alleged 70% salary discount/off work on disability, on a conversation in 2017. This is not capable of belief, when combined with the alleged 2022 conversation.

36The Applicant states that in 2022, the Respondent advised he was coming off long-term disability, had a promotion, and would be earning $100,000.00. The Applicant does not point to a particular day, month, conversation, circumstances of the conversation. It is a bald statement not located in time. The Applicant kept a detailed log of other discussions; it is hard to believe she would not have recorded such an important discussion, or at least have set out the circumstances, and the date, on which the discussion took place.

37Indeed, the idea that the Applicant believed that the Respondent was off on disability, at 70% of income through to 2022, is contradicted by one of the Applicant’s log entries, where she records the date and specific contents of a conversation where the Respondent told her that he had obtained a second job, as a superintendent, which he would work “after his work with the city”:

SUNDAY AUGUST 15, 2021 Fred came to visit with the boys in the backyard around 11am. He let me know that he found a way to help with his money issues. He got a second job working for the hotel he is living in. He will be a superintendent part time. He will have separate living quarters on the property, but it's a separate house (not part of the hotel). He will work for them after his work with the city. His monthly rent is $2500/month (all-inclusive of utilities). The amount of hours he works as superintendent will be subtracted from his monthly rent each month.

38It is impossible to reconcile the idea that the Respondent believed that the Respondent was on disability (and did not return to work until 2022) with the Respondent’s texts and the Applicant’s log in 2021 and 2022. These record the Respondent informing the Applicant of his workplace accidents, working overtime, working late, forgetting his wallet at work, working a second job, and so on. The Applicant’s log recording the father’s excuses specifically record his references to work in 2021 (May 20, May 31, July 14, August 27, September 1, November 1, and December 16) and 2022 (January 13, March 8, September 25). The Applicant did not deal with this contradictory evidence. I also note that there is only one year for which Worker’s Compensation income is recorded, 2017.

39For these reasons, I do not find the bald statement regarding the 2022 conversation upon which the Applicant relies for imputing income at $100,000.00 to be a reliable evidentiary foundation for imputation.

40An uncontested trial on affidavit must contain trial-worthy evidence. I find that the Applicant has failed to establish, on a balance of probabilities, that in 2023 and on a go-forward basis, income should be imputed to the Respondent at $100,000.00. The Applicant did not argue imputation because the Respondent was underemployed or for any other reasons, nor, as noted, did she file a factum or refer to any statutes or case law.

41The Respondent has been a unionized worker in the public sector. It is possible that there has been some form of collectively bargained wage increase since 2021. But I do not find that a Glassdoor posting is reliable for determining the Respondent’s wages (it would represent a very substantial increase, inconsistent with the Respondent’s work history wages). I have considered the last 3 years of income to reach an average income, but that is lower than the 2021 figure. There was no evidence put forward by the Applicant on average industrial wage increases or inflation. In the absence of any such evidence, I use the 2021 income figure. The Order requires the Respondent to provide annual income disclosure, and child support will be adjusted annually on that basis.

42I find the Respondent’s income for year’s 2020-2021, and 2022 following, to be:

Year	Applicant’s Position re Respondent Income	Applicant Notices of Assessment	Respondent’s Income - Finding
2017	$72,380		$72,380
2018	$69,657	$41,682	$69,657
2019	$65,415	$44,762	$65,415
2020	$58,187	$56,104	$58,187
2021	$63,725 based on income tax return summary (Applicant position that this is 70% on disability; full amount of salary is $90,000)	$56,315	$63,725
2022 onwards, subject to annual readjustment based on income tax information	(impute at $100,000)	$59,718	$63,725

43Based on this income information, the Applicant is to submit a Word document setting out, each year, the retroactive table child support calculations for 2020 (May 15, 2020, through December 2020), 2021, 2022, and 2023 January 15 to November 15, 2023), together with a draft Order in Word containing the amounts. On income of $63,725, the Respondent shall pay table child support in the amount of $971 per month from December 15, 2023 for the two children.

44The Applicant seeks insurance securing support. But there is no evidence about what the appropriate amount should be. The Applicant is to provide a Divorcemate calculation of insurance to secure child support.

Section 7 Expenses

45The Applicant seeks section 7 expenses of $10,353.40 for the period 2020 through 2022, and $1661.22 for the first seven months of 2023, with the estimated 2023 total of $2847.80.

46The analytical framework for section 7 expenses is set out by Charney, J. in Soleimani v. Melendez, 2019 ONSC 36 at paras 35-38:

35 The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 of the CSG and that the expenses are necessary and reasonable, having regard to the parents' respective financial circumstances. Section 7 requires the court to consider whether the spouse against whom the claim is made had been consulted about the expenses before they were made, and whether the spouse has the means to make the contribution to the expenses. Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount: See [Park v. Thompson, 2005); (2005), 77 O.R. (3d) 601 (Ont. C.A.), at paras. 20 - 26.

36 A custodial parent does not have carte blanche to enroll a child in any number of extracurricular activities and then look to the non-custodial parent to share all of the costs. While prior consultation is advisable, and is a factor that the court will consider in assessing a claim under s. 7, prior consent is not a legal prerequisite to a s. 7 claim unless specifically required by agreement or court order: Zimmerman v. Doe, [2007 CarswellOnt 4721 (Ont. S.C.J.)], 2007)](https://www.minicounsel.ca/oca/2012/864), the Ontario Court of Appeal provided the framework for determining whether a recipient of child support will receive contribution towards a s. 7 special or extraordinary expense. The court stated, at para. 26:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

38 An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount. The court has the discretion to apportion the s. 7 expense in a different manner than pro rata to incomes, depending on the circumstances of the case. See: Salvadori v. Salvadori, 2010 ONCJ 387 (Ont. C.J.), at para. 28.

47There is no evidence that the father’s consent was sought before incurring the expenses.

48While some receipts are provided, not all the expenses have been proved. For example, there is one receipt for O.C.’s swimming lesson, at a cost of $80.00, with a statement in the affidavit that O.C. takes three sessions a year. But only one receipt with proof of payment has been tendered. I have scrutinized the receipts. As Justice Carole Curtis stated in Costescu v. Costescu, 2014 ONCJ 218 at para. 71:

The court should not have to struggle through the evidence provided to be able to determine whether or not the amounts claimed are properly claimed, whether the amounts claimed are proven, whether the amounts claimed fall properly under special expenses, and whether the amounts are reasonable. The onus to prove an expense is on the parent seeking contribution for that expense.

49The special expenses of speech therapy and occupational therapy (claimed at $905.00 annually), have not been proven. There are no receipts. And those are the types of expenses that might have been paid through insurance. There is no evidence they were remitted to the Respondent for payment through insurance.

50I find that the Applicant has not proved on a balance of probabilities that she incurred the extraordinary expenses claimed except for the following expenses which are supported by receipts/proof of payment:

O.C.: 2022 Variety Village Membership, $175; 2022 Tae Kwon Do $200, 2022 Tae Kwon Do test $60, Swimming $80, 2022 total $515.00; 2023 Tae Kwon Do $345. A.C.: 2022 Variety Village Membership $175, 2022 Children in Motion $75, total $250. 2023 Building Block $285, 2023 Building Block $330, total $615.

51That an expense has been incurred does not automatically demonstrate why the Court should find an expense extraordinary. Still, I am prepared to exercise my discretion to find that these expenses were incurred, they are extraordinary, and reasonable within the family’s annual income.

52The Applicant is to prepare an Order in Word for the retroactive section 7 expenses for 2020 to November 2023, in the total amount of 2020 $0, 2021 $0, 2022 ($515 plus $250 = $765) plus 2023 ($345 plus $615=$960)= $1,725.00, in accordance with income ratios.

53The Applicant accepts that the Respondent made payments of $3,500 for section 7 expenses. This credit is to first be applied to retroactive section 7 expenses. The excess credit is applied against equalization owed.

54The Applicant is to calculate the appropriate section 7 ratios each year 2020 and following based on the income as set out above, and submit a Word document with those ratios, and the amount allocated to the Respondent based on those ratios, together with a draft Order in Word containing the amounts.

55The Applicant seeks an Order for approval of future section 7 expenses, but given that I have not found that they were incurred in the past at the level she seeks, I will not make that Order for the future as the evidentiary foundation is missing. I make an Order that the Respondent pay $1,200 annually in section 7 expenses for the two children collectively for special and extraordinary expenses, at the rate of $100.00 per month, commencing December 15, 2023. The parties are free to agree on additional special and extraordinary expenses for amounts above this. The Applicant shall provide invoices and proof of payment for special and extraordinary expenses to the value of the annual $1,200.00, and shall seek consent and provide invoices for additional special and extraordinary expenses.

Spousal Support

56The Applicant also seeks spousal support. It is unclear to me whether this is compensatory or needs based, although the Application claims both. The purposes of an Order for spousal support, as set out in s. 15.2(6) of the Divorce Act, are to:

• recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;
• apportion between the spouses any financial consequences arising from the care of any child beyond any obligation for the support of any child;
• relieve economic hardship of the spouses arising from the breakdown of the marriage; and
• promote economic self-sufficiency of each spouse within a reasonable period of time.

57On the evidence, I do not find a basis for needs-based support.

58The facts set out for compensatory support in the affidavit are:

a. The Respondent and I were in a relationship for over 12 years and have two young children together. b. Given A.C.’s special needs, I had to put my career on the back burner so that I could always be available to care for the children. This allowed the Respondent to prioritize his work obligations and advance in his career/employment opportunities. c. I continue to be the primary caregiver to A.C.; my employment opportunities will always be contingent on the necessary flexibility to care for him.

59There is no other information to establish what the Applicant means by “putting her career on the back burner.” The Applicant does not describe her career, or what she gave up, when. She does not state whether she stayed home with the children for any time and if so when, whether she has ever worked part-time, what the role as primary caregiver involves re A.C., or what is the “necessary flexibility” required to care for A.C. There is no evidence of respective roles in the marriage. There is no evidence of what the Applicant means by stating that in putting her (unknown) career on the (undescribed) back burner, the Respondent advanced in (unknown ways) in his career/employment opportunities. Again, these are bald allegations.

60The Applicant states that A.C., has been diagnosed with moderate to severe autism spectrum disorder, and requires “significant additional care,” which has been predominantly provided by her during the marriage and solely by her post-separation.

61There is no expert evidence on the issue of the diagnosis, the limits on A.C.’s functions, nor what “significant additional care” is required. The Applicant’s affidavit asserts “significant additional care,” but nowhere describes the nature of the care. All the statements are bare statements without an examination or illustration of how the Applicant’s role leads to a compensatory claim.

62The only evidence before me is that the Applicant assumed the primary responsibility of childcare throughout the marriage, and continues to have care of the children.

63But the SSAG’s reflect zero support. The Applicant states she wishes to confirm her entitlement to support and that in the event of a material change in circumstances the quantum may be changed, and seeks an order for spousal support of $1 per year. I simply cannot do this on the evidence provided at trial.

64Since the SSAG’s set spousal support at 0, and considering the evidence tendered, I decline to make an order for spousal support.

Equalization

65The Applicant states it is hard to determine equalization without disclosure, which is true. But the Applicant has provided a Net Family Property Statement. She has received a valuation of the Respondent’s OMERS pension. And she decided to proceed with an uncontested trial rather than seeking disclosure orders, or proceeding to a case conference. I must make the decision on the evidence placed before me.

66The Applicant claims an interest in sums that may be paid to the Respondent from a pending personal injury lawsuit, for injuries sustained in 2017. The Applicant asks that she be permitted to readdress the sharing of the proceeds from this litigation when she receives confirmation that the Respondent settled the ongoing lawsuit. She also seeks a direction to the Respondent’s civil lawyer to provide her with information about the status of this litigation.

67It has been six years since the injuries, and nearly four years since the separation. The Court is not prepared to delay equalization. As importantly, the pleadings show the civil litigation is a personal injury lawsuit. Section 4(2) of the Family Law Act excludes from net family property: “Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.” General damages and prejudgment interest qualify as excluded property because they are compensation for a personal loss to one spouse that is unrelated to the marriage. The portion of the damages related to loss of wages during the parties' marriage would be shareable property for equalization, but damages related to the loss of wages since separation and future lost wages do not.

68No cases were provided to me, nor any statutory or other authority, for making a final equalization award but adjourning the potential lost wages portion of a potential settlement, and I decline to do so.

69I have significant difficulty with the Net Family Property statement prepared by the Applicant, coupled with her failure to substantiate statements about payments she allegedly made to the Respondent’s benefit.

70The jointly owned matrimonial home was sold on October 15, 2020. Net proceeds of sale in the amount of $219,809.81 were deposited in the trust account of the real estate lawyer. The documentary evidence is inconsistent with the Applicant’s evidence about what happened with the net proceeds of sale. The Applicant’s evidence is:

The matrimonial home, namely the property at 34 Saunders Road, Toronto Ontario M1J 3H9 was sold on October 15, 2020, and the net sale proceeds in the amount of $219,809.81 were deposited in the trust account of our real estate lawyer. The net sale proceeds were then distributed between the Respondent and I by virtue of the Respondent receiving $70,000 and I received $149,810.00. Attached hereto as Exhibit “SS” is a true copy of the Statement of Account from the real estate lawyer regarding the sale of the matrimonial home. I had transferred the $70,000 to Frederico to enable him to pay off his sole debts (which I do not believe that he did despite him indicating an intention to me to do so). I utilized my share of the funds to pay off various joint debts on behalf of the parties as will be reflected below and then deposited the remainder into my joint account…

71The Applicant did not include the real estate solicitor’s reporting letter, which I find puzzling. That letter would show what encumbrances were discharged out of the proceeds of sale, since the lawyer only transferred net proceeds to his trust account. The lawyer’s trust account reconciliation shows that each party received $50,000, then the Applicant solely received the balance – an additional $117,912.54.

72The Applicant states that out of the post-separation sale proceeds, she then transferred $70,000 to the Respondent to enable him to pay off his sole debts. But there is no evidence that the Applicant transferred $70,000 to the Respondent at any point. And indeed, the Net Family Property statement does not record the Respondent as having date of separation debts of $70,000.00 (which of course would have reduced the equalization owed).

73I find that the Applicant has not established on a balance of probabilities that she paid the Respondent $70,000 from the sale proceeds, or at all. Generally, statements in an affidavit have no weight if the statements are self-serving, or bare assertions, or simply conclusory or argumentative and without evidentiary support: Access Mortgage Corp. (2004) Ltd. v. Ares Capital Inc., 2014 ABCA 280, para. 59; R Floden Services Ltd. v. Solomon, 2015 ABQB 450, paras 21 – 23; Guarantee Co. of North America v Gordon Capital Corp., [1999] 3 S.C.R. 423, para. 31; Sticks and Stones Communications Inc., v. Holes’s Greenhouses and Gardens Ltd., 2015 ABQB 774, para. 37. Here, although the Applicant states she transferred $70,000.00 to the Respondent from the proceeds, she provides no documentary evidence. And she has access to the evidentiary support required – the transfer from her bank account to his, for example.

74The Applicant states that she discharged their joint debts out of the proceeds of sale. But the discharge of the joint line of credit was posted to the account on October 16, 2020. This was the day after closing. There is no evidence that the Applicant discharged this from the net proceeds of sale, and indeed, she could not have done so given the date. The parties each received the first tranche of $50,000 from the net proceeds on November 19, 2020, with the Applicant receiving the balance between March 29 and April 6, 2021. I infer that the line of credit was, instead, discharged from the proceeds of sale (received the day before the line of credit was paid off). This is far more likely than the Applicant’s evidence that she paid it off from the proceeds of sale, since she had not received the money at the time the line of credit was discharged, there is no contemporaneous evidence that she did so, and the solicitor’s reporting letter showing discharges was not contained in evidence, although the disbursements from the solicitor’s trust account were contained in evidence.

75I find that the Applicant received a disproportionate amount from the proceeds of sale, and there is a credit owed to the Respondent of 50% of the final payment, in the amount of $58,956.27.

76The Respondent owes the Applicant $67,757.20 for equalization of net family property, plus 50% of the Family Law Value of the OMERS pension, to be transferred to a LIRA. The debt from the Applicant may be set off against the equalization, so that the Respondent owes the Applicant $67,757.20 – $58,956.27 = $8,800.93, plus the LIRA rollover.

77The Applicant sought prejudgment interest on the equalization payment owed. As stated by the Court of Appeal in Muraven v. Muraven, 2021 ONCA 657 at para. 16:

As a general rule, a payor spouse is required to pay prejudgment interest on an equalization payment owing to the payee spouse. However, the applicable legislation makes clear that the granting or denial of prejudgment interest is discretionary: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 130. There are exceptions to the general rule. Exceptions arise “where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial”: Burgess v. Burgess (1995), 24 O.R. (3d) 547 (C.A.), at p. 552; Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 43.

78I decline to grant prejudgment interest on the equalization payment. I have found that the Applicant received the balance of the funds from the sale of the matrimonial home, including the Respondent’s share. The Respondent has not had access to those funds; they have been held by the Applicant. I order that the Respondent’s share of the amount received by the Applicant is to be applied to the outstanding equalization owed by the Respondent to the Applicant.

Post-Separation Adjustments

79There is no evidence of the account from which the property tax instalment bills were paid, or indeed, if they were paid. There are handwritten notes on three bills stating paid, but no receipts or proof of payment. The same goes for the Hydro and Toronto Utility Bills. Again, those show the invoices, but no proof of payment. I find that the Applicant has not established these post-separation payments from her accounts.

Timeshare

80The Applicant states the parties own a membership in a timeshare in Panama, and she has been paying the annual fees. She states the membership has no value. She seeks an order that the Respondent’s interest in the timeshare be transferred to her, in consideration of the post-separation payments. I make this Order.

Divorce

81The parties married on August 8, 2008. They separated, with no reasonable prospect of reconciliation, on May 15, 2020, and have lived separate and apart since then.

82The Application was served in January 2022.

83I find that as required by section 8(2)(a) of the Divorce Act, the spouses have lived separate and apart since May 15, 2020, and were living separate and apart when the divorce Application was begun. As required by section 10(1) of the Divorce Act, I am satisfied that the parties have been separated for more than 12 months, with no reasonable prospect of reconciliation. I am also satisfied that reasonable arrangements have been made for the support of the children.

84The Applicant may proceed to obtain an uncontested divorce, at her own expense.

Costs

85The Applicant seeks costs on a full indemnity basis in the amount of $45,927.34. As 33.33% of her legal fees related to addressing the Respondent’s income and claims for support, she asks that at least 33.33% of the costs be enforced through the Family Responsibility Office.

86The Bill of Costs starts in September 2020. The Application was issued in late 2021 and served January 7, 2022. Much of the pre-Application period, where attempts were made to settle the matter without litigation, are not attributable to the litigation, although drafting the Application is recoverable. After the Application was served, time was spent drafting a Separation Agreement, not properly part of the costs recoverable at trial.

87I note that the matter proceeded expeditiously, given that the Respondent failed to serve an Answer, the parties attended no Conferences, and there were no motions.

88Costs orders are in the discretion of the court under section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.

89The court must step back and exercise judgment, having regard to all the circumstances as to what a fair and reasonable amount should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario, (2004) 71 O.R. (3d) 291.

90I do not find bad faith. There is no evidence of an Offer to Settle. There is therefore no basis for full indemnity costs.

91Rule 24(1) creates a presumption of costs in favour of the successful party. An award of costs is subject to the factors listed in Rule 24(12) including the importance and complexity of the issues, the reasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, the expenses, and any other relevant matter.

92The failure of the Respondent to provide financial disclosure as required by the Automatic Order, or to pay child support since separation, are unreasonable, are considered in setting costs.

93Given that the issue here is the costs of the uncontested trial, I find that the Bill of Costs covers far too much ground, with no explanation of the pre-Application costs, or time spent drafting a Separation Agreement after the Application was served.

94I find that a reasonable and proportionate award of costs is $20,000.00, inclusive, of which $6,600.00 is to be enforced by the Family Responsibility Office as the payment of legal fees or other expenses arising in relation to support pursuant to s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

Further Information to be Supplied

95I make the Order set out below. There will be a further Order issued once the Applicant provides the following information, which should be sent to my attention through the Family Portal within 45 days, together with a draft Order in Word incorporating the amounts:

(a) A Word document setting out, for each year, the retroactive child support calculations for 2020 (May 15, 2020, through December 2020), 2021, 2022, and 2023 January 15 to November 15, 2023), based on the Respondent’s income as set out in this decision. (b) A Word document setting out pre-judgment interest on the retroactive table child support, together with a draft Order in Word. (c) A Divorcemate calculation of insurance to secure child support, using the income determinations set out in this decision. (d) A Word document setting out the income ratios for section 7 allocation for 2020 through 2023, and calculating amounts owed by the Respondent for the retroactive section 7 expenses as found in this decision, given the total amount of 2020 $0, 2021 $0, 2022 ($515 plus $250 = $765), plus 2023 ($345 plus $615=$960), in the total amount of $1,725.00, in accordance with income ratios. (e) A Word document calculating the credit to be applied to retroactive section 7 expenses (from the Respondent’s payments of $3,500 for section 7 expenses), and the credit remaining to be applied to future section 7 expenses.

Order

This Order is edited for publication by omitting the full names and dates of birth of the children, which shall be included in the Final Order as issued and entered:

1. The children of the marriage namely O.A. and A.C., and collectively referred to as “the children” shall reside primarily with the Applicant.
2. The Applicant shall have sole decision-making responsibility for the children, and she shall make all important decisions about the children’s welfare, including, but not limited to the children’s: (a) Health, including major non-emergency healthcare, as well as emergency health care; (b) Education; (c) Culture, language, religion, and spirituality; and (d) Significant extracurricular activities for which reimbursement is sought. The Applicant must advise the Respondent of the proposed extracurricular activities at least 10 days in advance and seek consent.
3. The Applicant may apply for passports, and other government documents, and the renewal of these documents on behalf of the children without the Respondent’s agreement, consent, or signature. The Applicant’s sole signature is sufficient to apply for and renew these documents.
4. The Respondent’s consent in respect of the children’s travel within Canada or outside of Canada is dispensed with. The Applicant’s consent and signature shall be sufficient consent for the children to travel within Canada or internationally.
5. The Respondent may only travel internationally with the children with the written consent of the Applicant or court order.
6. The Applicant shall facilitate parenting time in accordance with the children’s best interests on the dates and at the locations and times agreed to between the parties in advance, in writing. If the children request a phone, video call or parenting time with the Respondent, the Applicant shall facilitate the request. Parenting time should only occur at the Respondent’s residence if there are no dangerous or potentially threatening animals present in the home.
7. The Respondent shall pay child support to the Applicant for the children in the amount of $971.00 each month commencing December 15, 2023, and on the 15th day of every month thereafter, in accordance with his estimated income of $63,725 and the Federal Child Support Guidelines. A support deduction order shall issue.
8. The Respondent shall pay $1,200 annually in estimated section 7 expenses for the two children collectively for special and extraordinary expenses, at the rate of $100.00 per month commencing December 15, 2023, and continuing monthly thereafter. A support deduction order shall issue for this amount. The parties are free to agree on additional special and extraordinary expenses for amounts above this. The Applicant shall provide invoices and proof of payment for special and extraordinary expenses incurred each year to the value of $1,200.00 and shall seek consent and provide invoices for additional special and extraordinary expenses.
9. On or before May 1st of each year, commencing on May 1, 2024, the Applicant and the Respondent shall exchange income information for the prior calendar year, including their income tax returns and Notices of Assessment. The Respondent’s table child support obligation and the party’s proportionate contributions toward the children’s section 7 special and extraordinary expenses shall be adjusted as of July 1st of that year.
10. The Respondent shall maintain his existing life insurance policy through his employment at the City of Toronto as security for his child support obligation for as long as he is obligated to pay child support. The Respondent shall designate the Applicant as the irrevocable beneficiary of the policy, for as long as he has a support obligation. The Respondent shall direct the life insurer to give notice to the Applicant if the policy lapses or is terminated for any reason.
11. The Respondent shall pay all policy premiums for the life insurance when due. If the Respondent does not pay these premiums in full and on time, and the Applicant may pay on the Respondent’s behalf any premiums, interest, or penalties to prevent the lapse of the policy. Those amounts shall be considered payments incidental to child support and enforceable against the Respondent. If the policy lapses because the Respondent failed to pay the premiums, the Respondent shall also pay the Applicant all necessary costs incurred by her to reinstate the policy.
12. The obligation and liability for child support shall continue after the death of the Respondent and be a first charge against his estate.
13. The Respondent shall name and maintain the children as the beneficiaries on any benefits (extended health and dental coverage) which he may have through his employment and shall maintain such coverage until further agreement or court order, and shall name and maintain the Applicant so long as the coverage is available through his employment. The Applicant shall be authorized to obtain information about herself or the children from the Respondent’s insurer(s), without the Respondent’s prior consent or authorization. In the event that the Applicant is no longer eligible as a beneficiary by the policy, the Respondent shall immediately notify the Applicant of same.
14. The Applicant may submit all claims to the Respondent’s benefits insurance (extended health and dental) providers and obtain reimbursement directly. If the provider cannot make direct payments to the Applicant, then if the Respondent receives reimbursement funds from the benefits provider for any expenses incurred by the Applicant, he shall immediately provide those funds to the Respondent by way of e-transfer. The Respondent shall authorize the benefits insurance provider to provide all pertinent information pertaining to the status of the policy/coverage directly to the Applicant.
15. The Respondent shall pay the Applicant $67,757.20 for equalization of net family property, plus 50% of the Family Law Value of the OMERS pension, to be transferred to the Applicant’s LIRA.
16. The Applicant shall pay the Respondent $58,956.27 as a post-separation adjustment from the overpayment to her from the net proceeds of sale.
17. Amounts owed by the Applicant in para. 16 of this Order to the Respondent are to be set off against the equalization payment owed to the Applicant as set out in paragraph 15 of this Order, so that payment shall be as follows: (a) the Respondent shall pay the Applicant $8,800.93 for equalization of net family property, within forty-five days, and (b) In respect of the transfer of 50% of the Family Law Value of the pension, the Respondent’s pension shall be divided at source. The Respondent shall instruct his pension provider to transfer 50% of the Family Law Value of his pension interest to the amount of $84,282.80, with OMERS Primary Pension Plan (Registration #0345983), plus interest/investment earnings from the Family Law Valuation Date to the beginning of the month in which the transfer is made, to the Applicant’s LIRA Account. The Respondent shall take all steps necessary to effect the division of his pension within forty-five days of this Order. If the Respondent does not comply with this Order by signing the relevant documentation to effect the division of his pension within forty-five days of this Order, then the Applicant may apply for the division of the Respondent’s pension, the Respondent’s consent/ signature shall be dispensed with and the pension plan administrator shall divide the Respondent’s pension at source, without the Respondent’s signature or consent.
18. Within forty-five days of the date of the Order, the Respondent shall transfer to the Applicant his interest in the timeshare at Cuarto Pisa, Panama. The Respondent shall sign any documentation necessary to complete this transfer and remove his name from the timeshare. If he does not cooperate, the Respondent’s signature shall be dispensed with.
19. The Respondent shall pay the Applicant costs in the fixed amount of $20,000.00, inclusive of HST and disbursements, within 60 days, of which $6,600.00 is to be enforced by the Family Responsibility Office as the payment of legal fees or other expenses arising in relation to support pursuant to s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and a support deduction order shall issue in respect of that amount.
20. The Applicant may proceed to obtain an uncontested divorce, at her own expense.
21. Unless the Support Deduction Order is withdrawn from the Office of the Director, Family Responsibility Office, all amounts owing thereunder shall be paid to the Director who shall in turn pay them to the party to whom they are owed.
22. This Order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of 7% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
23. The Respondent’s approval of this Order as to form and content is dispensed with.
24. The Applicant shall serve a copy of the issued and entered Order on the Respondent.