NEWMARKET COURT FILE NO.: FC-19-58442-00
DATE: 20231208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.A.
Applicant
– AND –
J.M.
Respondent
J. Rechtshaffen, Counsel for the Applicant
Self-represented Respondent
HEARD: November 21-30, 2023
REASONS FOR DECISION
MACPHERSON J.:
Introduction
[1] The Applicant filed an Amended Application on April 11, 2019, requesting the relief that follows:
(a) a divorce;
(b) spousal support;
(c) child support;
(d) a restraining Order;
(e) an unequal division of net family properties;
(f) exclusive possession of the matrimonial home and the contents;
(g) freezing/non-depletion of assets;
(h) section 7 expenses apportionment;
(i) that the Respondent designate the Applicant and the child as beneficiaries on all life insurance policies;
(j) security for the payment of child and spousal support;
(k) unjust enrichment with a trust interest in International Gallery Inc. as relief; and
(l) an Order setting aside all fraudulent conveyances and all conveyances made in the 24 months prior to separation.
[2] Counsel for the Applicant confirmed that the requests for the following relief were not being pursued:
(a) a restraining Order;
(b) freezing/non-depletion of assets;
(c) an Order setting aside all fraudulent conveyances and all conveyances made in the 24 months prior to separation; and
(d) occupation rent.
[3] The Respondent filed an Answer on May 9, 2019, requesting the relief that follows:
(a) a divorce;
(b) child support;
(c) an unequal division of net family properties;
(d) exclusive possession of the matrimonial home and the contents;
(e) sale of the matrimonial home; and
(f) that the Applicant preserve all property jointly owned by the parties.
[4] The matrimonial home was sold in August of 2020. Accordingly, the relief requested by the Respondent for exclusive possession of the matrimonial home and for sale of the matrimonial home are dismissed. The Respondent indicated he was not pursuing his request for an Order preserving property.
[5] Accordingly, and pursuant to the Trial Scheduling Endorsement Form signed June 19, 2023, the following issues remain outstanding:
(a) a divorce;
(b) spousal support;
(c) child support and section 7 expenses;
(d) unjust enrichment with a trust interest in International Gallery Inc. as relief;
(e) equalization;
(f) post-separation adjustments;
(g) that the Respondent designate the Applicant and the child as beneficiaries on all life insurance policies;
(h) security for the payment of child and spousal support; and
(i) costs.
Brief Background
[6] The parties were married on July 25, 1996.
[7] The parties agree that the date of separation, for the purpose of determining equalization, spousal support and the divorce claim, is April 11, 2019.
[8] There is one child of the marriage, namely, A.M. born in 1999. At the time of the parties’ separation, A.M. was 19. At the commencement of trial, A.M. was 24 years old.
[9] The Respondent is estranged from A.M. The Respondent states that the Applicant manipulated A.M. against him.
Verbal and Physical Abuse
[10] The Applicant testified that the Respondent was physically and verbally abusive throughout the marriage. The Applicant points to an incident on December 10, 2010, where the Respondent testified that she was slapped and punched, dragged by the hair, and thrown downstairs. The Respondent was charged following this incident. The Applicant swore an affidavit on December 20, 2010, claiming that she attacked the Respondent first; this evidence resulted in the charges against the Respondent being withdrawn.
[11] The Respondent denied that he was the perpetrator of any domestic violence. To the contrary, the Respondent states that it was the Applicant that was physically abusive to him. He points to charges laid against the Applicant when, he states, she poured hot tea on him on June 2, 2019. Those charges were later withdrawn.
[12] The Applicant testified that she and A.M. were followed by an unknown person in a vehicle many times, and the Applicant stated that she reported it to the police. The Applicant suggests that the Respondent had her followed. The Respondent testified that he never had the Applicant followed. Rather, both of them were being followed, and they both went to the police station to report it. In a text exchange between the parties, on December 5, 2018, the Respondent indicated that he had someone follow the Applicant for three months.
[13] The Applicant testified that the Respondent isolated her from friends and family and monitored her activities. In particular, the Applicant stated that the Respondent hacked into her cell phone, had a GPS device placed on her vehicle, and had her followed. The Respondent denies these allegations.
Work History
[14] Prior to the marriage and in the early years of the marriage, the Applicant operated a small business, Kimiya Trading Limited. Kimiya Trading Limited sold Persian rugs. The company was never particularly profitable. There is some dispute over when the Applicant ‘lost interest’ in the business although she certainly stopped working by 2003 when the parties’ son, A.M., was diagnosed at four years of age with type 1 diabetes.
[15] The Applicant did obtain her real estate licence in January 2018. She testified that she never had a listing, never had a co-listing and never had a commission. The Applicant has a website, posters, and business cards. The Respondent testified that the Applicant had several residential listings posted on her website.
[16] The Respondent has always worked in the Persian rug business. For much of the marriage, the Respondent worked for Turco Persian Rugs. In 2016, the Respondent left Turco Persian Rugs and eventually started a company, International Rug Gallery, with his brother (with each having a 50% ownership interest).
Divorce
[17] The parties have been separated for more than 12 months and, accordingly, the divorce may proceed by way of basket motion when all required documents are filed. Pursuant to this Ruling, the divorce will be severed from the corollary relief to permit either party to proceed with the claim.
Spousal Support
[18] The Applicant advances a claim for spousal support. Her claims are both compensatory and non-compensatory in nature.
[19] Section 15.2 of the Divorce Act, R.S.C. 1985, c 3 (2nd Supp), outlines the court’s jurisdiction regarding spousal support orders. The relevant subsections read as follows:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Entitlement
[20] There are three grounds for entitlement to spousal support: (1) compensatory, (2) non-compensatory, and 3) contractual. There is no contractual obligation in this case, and no contractual obligation was advanced.
[21] Compensatory support arises from career dislocation, an economic disadvantage as a result of the roles adopted in the marriage, or when a spouse conferred a substantial career enhancement opportunity on the other spouse. The ultimate purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown.
[22] Non-compensatory support arises whenever a lower income spouse experiences a significant drop in standard of living after the marriage breakdown resulting from the loss of access to the higher paying spouse’s income.
[23] The Applicant has entitlement to compensatory and non-compensatory spousal support for the reasons that follow.
[24] The parties were married for 23 years. The Applicant is 59 years old. The Respondent is 59 years old. The Applicant stopped working in 2003 to remain in the home and look after the parties’ son, A.M., following his diagnosis of type 1 diabetes. The Applicant has financial need as she exited the marriage without an income and completely dependent, financially, on the Respondent. During the marriage, the Applicant had access to her own credit card, and the Respondent paid off the balance each month. In determining the quantum and duration of spousal support, I now consider the parties’ respective incomes.
Parties’ Income - Applicant
[25] At the time of their marriage, the Applicant was operating her own business, Kimiya Trading Company. The business sold Persian rugs. The business was never very profitable and relied, I am told, on rugs gifted by the Applicant’s father. The Respondent advanced the position that the company was actually owned by the Applicant’s father. Regardless, for the purpose of spousal support, the Applicant, at the time of marriage, had a modest income.
[26] In or about 2003, the Applicant turned the business over to the Respondent after the child of the marriage, A.M., was diagnosed with type 1 diabetes. It is noteworthy that Kimiya Trading Company closed its bank account in 2017 and ceased all operations. The remaining inventory, at least what was left, was absorbed into the Respondent’s new company, International Rug Gallery.
[27] The Applicant qualified as a real estate agent in January 2018. The Applicant has struggled to obtain clients and testified that she has earned no commissions since obtaining her licence.
[28] The Applicant advances the proposition that she is unable to work as she has many physical ailments including knee pain, scoliosis and cataracts.
[29] A Functional Abilities Evaluation was completed on the Applicant by Amanda Rezinsky and the report dated January 31, 2023, detailed the testing of her physical abilities and limitations. The Applicant was able to perform all of the functional testing except for crouching and kneeling due to reported knee pain. The Applicant was able to perform within the sedentary strength demand for lifting and carrying tasks and was able to perform within the light strength demand for pushing and pulling tasks.
[30] A Transferrable Skills Analysis and Earnings Capacity Report dated February 15, 2023, was prepared by Taline Sethian. The report documented the Applicant’s age, her lack of post-secondary education, her limited participation in the workforce and her physical ailments. Taline Sethian concluded that the Applicant had maximum earnings capacity of no more than $30,225 based on full-time work at minimum wage.
[31] The Applicant’s reported income of zero per annum does not fairly reflect her ability to earn income.
[32] Section 19(1) of the Federal Child Support Guidelines, SOR/97-175, reads as follows:
Imputing income
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[33] I have concluded that the Applicant is able to earn an income for the reasons that follow.
[34] Despite the Applicant’s reports of knee pain, in a video recorded by the Respondent on April 18, 2018, and entered as an exhibit in this proceeding, the Applicant was able to stand on chairs, reach for and remove items, and negotiate stairs while carrying a ladder. It is noteworthy that the Applicant has not applied for disability despite reporting an inability to work in any capacity.
[35] In the five years since separation, the Applicant has not looked for employment. Although she has been out of the workforce for 20 years, she did run her own business, and she did obtain her real estate licence in 2018. Despite her reported physical ailments, I am satisfied, on the evidence before me, that the Applicant is able to work, and I am imputing annual income to her in the amount of $30,000 for the purpose of spousal support consistent with her maximum earnings set out in the report prepared by Taline Sethian.
Parties’ Income - Respondent
[36] The Respondent was employed at Turco Persian Rugs for 29 years. During his final full year of employment, the Respondent earned $115,000. The Applicant states that the Respondent also earned cash on the side by providing appraisals to various insurance companies and by selling Persian rugs and tapestries off the books. I accept that there was some extra income during the years he worked at Turco Persian Rugs that was able to elevate the parties’ standard of living.
[37] The Respondent states that he left his position at Turco Persian Rugs in 2016 because a change in management made it impossible for him to continue working there. In October 2015, the Respondent incorporated a new company called International Rug Gallery with his brother. The business offers cleaning and restoration, insurance consultations and, at one time, had a showroom for Persian rugs. The business itself did not commence until 2017. I am satisfied, on the evidence before me, that the Respondent left his employment at Turco Persian Rugs predominantly as a result of a change in management.
[38] In determining the Respondent’s income, I have reviewed two expert income stream reports filed with the court.
Karin Kidikian Income Stream Report
[39] The Applicant obtained a financial expert, Karin Kidikian, to conduct an income analysis for the Respondent for child and spousal support purposes. Ms. Kidikian provided an income stream report (“the Kidikian Report”) and concluded that the Respondent earned:
(a) in 2021, $214,445 (with Canada Recovery Benefit) or
(b) in 2021, $201,445 (with Canada Recovery Benefit excluded); and
(c) in 2022, $223,892.
Matthew Krofchick Income Stream Report
[40] The Respondent retained Matthew Krofchick to complete an income stream analysis. Mr. Krofchick provided an income stream report (“the Krofchick Report”) and concluded that the Respondent earned:
(a) in 2017, $1,491;
(b) in 2018, $2,169;
(c) in 2019, $65,971;
(d) in 2020, $14,137;
(e) in 2021, $45,447; and
(f) in 2022, $46,046.
[41] The difference in conclusions between the two reports is striking. There are three main sources of disagreement:
(a) the allocation of the depreciation expense;
(b) the deduction of professional fees; and
(c) the treatment of unreported income.
Depreciation Expense
[42] The Kidikian Report does not allow for depreciation expenses, while the Krofchick Report allows for them. The depreciation expense is directly related to leasehold improvements paid for by the owners. The basis of the Kidikian Report’s refusal to permit the depreciation expense is that:
(a) in questioning, the Respondent stated that there were no leasehold improvements; and
(b) as depreciation expenses do not result in cash leaving the business, for support purposes, the Respondent has access to these funds.
[43] The Krofchick Report accepts the depreciation expense on the basis that:
(a) despite stating in questioning that there were no leasehold improvements, the Respondent went on to describe leasehold improvements during the questioning, and he provided invoices for the leasehold expenses to Mr. Krofchick; and
(b) the full cost of fixed assets (leasehold expenses) is not deductible as an expense in the year acquired although the money has already been spent and is an appropriate deduction.
[44] In respect of the depreciation expense, I agree with Mr. Krofchick that the invoices demonstrate the expenses were incurred, and I accept that fixed assets are a legitimate business expense. I also note that the machines to wash the carpets will have a natural life expectancy and will need to be replaced over time. Amortizing leasehold expenses over the life of the asset is the best indicator of income available for support and it is an appropriate deduction.
Professional Fees
[45] The Kidikian Report does not accept the professional fees claimed in 2021 and 2022. The Kidikian Report takes the position that the Respondent’s personal share of professional fees be imputed back to him as she makes the assumption that these fees include legal fees and accounting fees associated with matrimonial litigation and not the business.
[46] The Krofchick Report accepts the deduction for professional fees. Mr. Krofchick examined the invoices and concluded that the majority of the professional fees were related to accounting fees.
[47] While these fees are modest, I agree with the conclusions found in the Krofchick Report. The professional fees were predominantly accounting expenses that were incurred for the business, not matrimonial litigation, and this was confirmed by the accountant, Ms. Zhao, in her testimony.
Unreported Income
[48] The Kidikian Report estimates that the Kimiya Trading Limited Inventory brought to International Rug Gallery in 2016 was valued at $528,044. The Kidikian Report includes unreported income on the assumption that there are off-the-books sales of rugs.
[49] Mr. Krofchick reviewed the list of rugs and ascertained that $403,848 of the rugs were on consignment and $153,014 of the rugs were returned to their owners.
[50] I accept the evidence of Mr. Krofchick in respect of the inventory. The Kidikian Report, in respect of the inventory, is heavy on speculation and light on evidence. I do not accept the assumption made by Ms. Kidikian that an enormous number of rugs in inventory were owned by Kimiya Trading Limited and then International Rug Gallery. To accept this proposition, I must conclude that the rugs provided by the Applicant’s father before the marriage were the gift that keeps on giving in that they: a) supported the Applicant for several years before her marriage; b) supplemented the parties’ lifestyle for 20 years during the marriage; and, yet, c) the inventory does not deplete or reduce. I cannot accept that proposition. The proposition is further weakened when one considers the unchallenged evidence of the Respondent that he used his inheritance of $88,000 to purchase rugs.
[51] I prefer the report of Mr. Krofchick as he was able to verify that the vast majority of rugs in inventory at International Rug Gallery were in the form of consignments as set out in the various invoices.
[52] I also note that, in terms of credibility on this issue, I prefer the Respondent’s evidence that the vast majority of the rugs at International Rug Gallery were on consignment over the Applicant’s evidence, as I did not find the Applicant credible on the issue.
Credibility
[53] I was invited to find that the Respondent was not credible.
[54] I do have issues with one aspect of the Respondent’s testimony. The Respondent testified that he did not have the Applicant followed and that was contrary to a text he sent to the Applicant that said the opposite. Apart from that, I found the Respondent’s testimony balanced and credible.
[55] I was also invited to find that the Applicant was not credible.
[56] At the end of every day, the court went over the list of witnesses that were required for the following day. The court did so on Friday, November 24, 2023, in preparation for the continuation of the trial on Monday, November 27, 2023. The court determined that all of the Respondent’s witnesses were to be present on November 27, 2023. They were all present except for the Applicant’s father, Mr. A.A., who was being called as a hostile witness by the Respondent, and this was noted in the Trial Scheduling Endorsement Form.
[57] Mr. A.A. did not attend court on November 27, 2023, despite being served with a summons by the Respondent. Counsel for the Applicant stated that Mr. A.A. was present at court some days, but there was no communication with him regarding his required attendance on November 27, 2023. The Applicant advanced the position that it was the Respondent’s responsibility to communicate the date and time for attendance. I disagree.
[58] Pursuant to Rule 2 of the Family Law Rules, O. Reg. 114/99, the primary objective of the Rules is to enable the court to deal with cases justly.
[59] Dealing with cases justly includes:
(a) ensuring the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate resources to the case while taking account of the need to give resources to other cases.
[60] Pursuant to Rule 2(4) of the Family Law Rules, while the court is required to apply the rules to promote the primary objective, the parties and their lawyers are also required to help the court promote the primary objective (emphasis added).
[61] Mr. A.A. did attend on his own volition on November 28, 2023. Mr. A.A. was cross-examined about wedding gifts given to the Applicant and the parties and the Persian rugs given to Kimiya Trading Limited. During this cross-examination, the Applicant had counsel interrupt twice to state that the translator was not interpreting words correctly, and following a question about wedding gifts, the Applicant was seen trying to communicate with Mr. A.A. The Applicant was removed from the courtroom for the balance of Mr. A.A.’s testimony.
[62] Mr. A.A. was testifying about the Persian rugs he gifted, and it was clear, based on all of the above, that the Applicant did not want the court to hear his testimony.
[63] I also found the Applicant’s testimony, during cross-examination, evasive, particularly regarding the Persian rugs. For example, in respect of the Respondent’s questions to the Applicant on the inventory issue, she could not recall:
(a) if Kimiya Trading Limited made a profit;
(b) when the warehouse for Kimiya Trading Limited closed;
(c) when the store front for Kimiya Trading Limited closed;
(d) the number of rugs remaining when Kimiya Trading Limited closed; and
(e) the number of rugs remaining when Kimiya Trading Limited retail store closed.
[64] For all of these reasons, I did not find the Applicant credible when it came to her evidence regarding Persian rugs generally, and where the parties’ testimony differs on this issue, I prefer the evidence of the Respondent.
[65] I do accept that, historically at least, the parties supplemented their standard of living with sales of carpets off the books. I do not have satisfactory evidence to conclude that off the book carpet sales continued after the Respondent and his brother opened International Rug Gallery.
[66] As stated, I accept the Krofchick Report in respect of the Respondent’s income stream. However, that does not end the analysis.
[67] I have elected to impute income to the Respondent, from 2022 onwards, on the basis that the Respondent historically earned a much higher income and, were it not for starting his business, could likely achieve a comparable level if he was employed. Further, although the Respondent testified that he was holding most rugs on consignment, I did not see references to income directly from the sale of consignment rugs. The Respondent is not running a charity; therefore, he would have received some income from the sale of consignment rugs.
[68] I add this note of caution. Parties who derive income from ‘off the record’ books or ‘cash sales’ may, by nature of the activity, have a difficult time producing evidence satisfactory to the court for the purpose of imputation.
[69] Throughout the marriage, the parties lived in a 5000-square-foot home. The home had expensive furnishings and antique artifacts. During the marriage, the parties travelled to England, France, Mexico, Aruba, Cuba, Saint Martin, Chicago, Los Angeles and Quebec City. During the marriage, the parties initially owned a BMW 7 series and later a Jaguar XJ.
[70] The Respondent states that the Applicant spent over $100,000 on cosmetic surgeries during the marriage. This included nose, breast and eye surgeries. There were also thousands of dollars spent on cosmetic procedures, salons and spa treatments.
[71] The parties had a comfortable lifestyle until 2016. The last three years of the marriage, however, were financially challenging. The Respondent had over $225,000 in RRSPs when he left his job at Turco Persian Rugs. The Respondent collapsed all of his RRSPs in 2017, 2018 and 2019 to meet expenses. I accept that the standard of living during the last three years of the marriage is more representative of the current situation than the historical standard of living.
[72] When I consider the income attributed to the Respondent from the Krofchick Report [2021: $45,447 and 2022: 46,046], add income because there is no revenue noted from consignment sales, and I consider historical earnings from Turco at $115,000 per annum, I conclude that the Respondent is capable of earning an income in the amount of $100,000 commencing January 1, 2021.
Spousal Support
[73] As stated, I have imputed income to the Applicant in the amount of $30,000 per annum, and I have imputed income to the Respondent, commencing January 1, 2021, in the amount of $100,000 per annum. I have reviewed the financial statements of the parties and have concluded that, commencing January 1, 2021, the Respondent shall make monthly spousal support payments in the mid-range of the Spousal Support Advisory Guidelines in the amount of $2,300.
Child Support
[74] Commencing September 2017, A.M. attended the University of Waterloo. A.M. left school without finishing his first year.
[75] A.M. resided with the Applicant following the parties’ separation in April 2019 although he was not a full-time student.
[76] A.M. enrolled in the Information Technology program at York University commencing September 2019. Partway through his second semester, A.M. withdrew from four of his five classes. From spring 2020 until January 2023, A.M. worked.
[77] Commencing January 2023, A.M. took two courses and was a full-time student in September 2023.
[78] A.M. was a dependent at the following times:
(a) September 2019 through February 28, 2020; and
(b) September 2023 forward.
[79] As stated, I have imputed income to the Respondent in the amount of $100,000, and I have commenced child support effective September 1, 2023.
Retroactive Child Support and Spousal Support [May 1, 2019 – December 31, 2020]
[80] As stated, I commenced child support effective September 1, 2023.
[81] As stated, I commenced spousal support effective January 1, 2021.
[82] I have treated the period of May 2019 through December 31, 2020, differently, as is set out in the paragraphs that follow.
[83] A.M. was a dependent from September 2019 through February 28, 2020, a period of 6 months.
[84] The Applicant was a dependent spouse from May 1, 2019, to January 1, 2021, a period of 20 months.
May 1, 2019 – March 31, 2020
[85] In terms of the retroactive spousal support award, it is noteworthy that, following separation, the Respondent paid the expenses and mortgage on the matrimonial home (although he lived there), and he paid the Applicant’s car lease and insurance and A.M.’s cell phone. The Applicant lived with her parents following the separation, free from rent.
[86] In terms of spousal support from May 1, 2019, through March 31, 2020, I impute income to the Applicant in the amount of $30,000, and I impute income to the Respondent in the amount of $100,000. That results in a periodic spousal support payment for five months in the amount of $2,300 (when A.M. was not a dependent) and $1,700 for six months when A.M. was a dependent for a total of $21,700.
[87] In terms of child support, A.M. was a dependent for 6 months (September 1, 2019 - February 28, 2020). The Child Support Guidelines indicate monthly child support in the amount of $910 for a total of $5,460.
[88] For the period from May 1, 2019, to March 31, 2020, the Respondent owes $21,700 and $5,460 for a total of $27,160.
April 1, 2020 – December 31, 2020
[89] I have considered that the Respondent’s retail store, like all retail stores, took a financial hit during Covid. Mr. Krofchick determined that the Respondent’s income for 2020 was $14,137. I impute no consignment income to the Respondent during this period as consignment sales, if any, would have been modest at best with retail stores closed. A.M. was not a dependent during this period. The Applicant was a dependent during this period but, as the Respondent’s income was negligible, no spousal support is payable for this 9-month period.
[90] Post-separation, the Applicant removed $20,000 from the line of credit ($10,000 on the date of separation, April 11, 2019, and $10,000 on April 28, 2019). These amounts are purposefully not reflected in post-separation adjustments in this Ruling.
[91] The Applicant shall retain the $20,000 she removed from the line of credit in April 2019 as a direct set off as child support ($5,460) and lump sum spousal support ($15,000 after tax considerations) that is owed for the period May 1, 2019, through December 31, 2020.
Section 7 Expenses
[92] There are two section 7 expenses of significance.
[93] The first expense is A.M.’s post-secondary school expenses. The Respondent covered A.M.’s post-secondary educational section 7 expenses for school in 2019. He has indicated that he is not seeking a contribution from the Applicant for this section 7 expense.
[94] In respect of A.M.’s prescription drug costs, there was evidence that a government benefit provides the Applicant with some funds to cover A.M.’s medication. Naturally, any portion not covered by the government benefit is a section 7 expense to be shared by the parties. The Respondent states that he paid for A.M.’s medications despite the government cheques and the Applicant kept the $600 every three months for herself. The Applicant has indicated that she is not claiming any contribution to this expense before September 2023.
[95] Accordingly, I am apportioning post-secondary educational section 7 expenses and uncovered medication costs for A.M. commencing September 1, 2023.
[96] The parties shall share A.M.’s post-secondary educational section 7 expenses as follows: Applicant 23% and Respondent 77%.
Equalization
[97] The Applicant’s Net Family Property Statement indicates the Respondent owes her $523,185.56.
[98] The Respondent’s Net Family Property Statement indicates the Applicant owes the Respondent $8,768.42.
Date of Marriage Deduction
[99] The first significant dispute in the Net Family Property Statement is the date of marriage deduction claimed by the Applicant in the amount of $248,567.
[100] The Applicant testified that between 1990 and 1991, Mr. A.A. sent about $500,000 worth of rugs. These rugs formed the foundation of the company, Kimiya Trading Limited.
[101] The Applicant testified that she operated Kimiya Trading Limited, with little to no profit, until in or about 2004.
[102] The Applicant’s own evidence regarding the date of marriage deduction is confusing. She states:
“As of the date of marriage, the company had sales of $134,305 and a net profit of $5,010. It claimed assets of $263,640 but had a shareholder debt owed to me in the amount of $248,567 and a loan to the Respondent in the amount of $12,538.”
[103] The court was not provided with a valuation of Kimiya Trading Limited on the date of marriage. It does appear, on the Applicant’s evidence, that when one considers the assets and debts of Kimiya Trading Limited claimed by the Applicant, there is no deduction available on the date of marriage as the assets and debts are awash.
[104] Counsel for the Applicant advanced the argument that the pre-marital deduction available to the Applicant would be the equivalent of the shareholder loan set out in Kimiya’s balance sheet. I disagree. One cannot cherry-pick items from a balance sheet and request a deduction. Any deduction would require a valuation of Kimiya at marriage and that was not provided. Further, a shareholder loan is a debt owed to a corporation. It is not a shareholder’s advance. Accordingly, if I was to accept the argument advanced by the Applicant that only the shareholder loan be a date of marriage deduction, the Applicant would have a negative date of marriage deduction which equates to nil.
Tapestries
[105] The second dispute is the value of the tapestries owned by each party at separation.
[106] The Applicant has a $40,000 fine Flemish historical tapestry in her possession. I am satisfied with the appraised value completed by Glazier Appraisals in this regard.
[107] The Applicant assigns a value of $150,000 for two tapestries in the Respondent’s possession. I accept the evidence of the appraisal proposed by Mr. Douglas Stocks, that the value of the two tapestries in the Respondent’s possession are worth:
(a) late 17th century Brussels tapestry: $25,000 and
(b) 16th century Flemish historical tapestry: $15,000.
Business Valuation
[108] The Applicant includes $82,487 as the Respondent’s value of International Rug Gallery as of April 11, 2019.
[109] International Rug Gallery is owned 50% by the Respondent and his brother.
[110] There is great disparity in the valuations provided by each of the parties’ experts.
Kidikian Valuation
[111] The Kidikian Report valued International Rug Gallery, as of April 11, 2019, at $301,592.
The Krofchick Report
[112] The Krofchick Report valued International Rug Gallery, as of April 11, 2019, at nil.
[113] The most significant difference between the two reports is inventory:
(a) unreported inventory; and
(b) reported inventory.
[114] In terms of reported inventory on April 11, 2019, there is a small difference between the two reports.
[115] The Krofchick Report lists reported inventory at $72,500. The Kidikian Report lists reported inventory at $144,690.
[116] The Krofchick Report used the July 31, 2019, balance sheet to determine inventory on July 31, 2019, recognizing no rugs were sold between April 11, 2019, and July 31, 2019.
[117] The Kidikian Report compared the inventory list as of July 31, 2018, and July 31, 2019, and concluded that $72,190 was unaccounted for.
[118] I accept the Respondent’s evidence that consignment rugs were returned to their owners, which would decrease the inventory level although recording no sales as was set out in the Krofchick Report.
[119] The more significant difference between the two reports is the assignment of unreported inventory. The Kidikian Report states:
“It is not possible to accurately determine how much 2016 Kimiya inventory remained as of April 11, 2019 valuation date, since any sales from this inventory were not recorded.”
“With the limited information available, all that can be determined is that the Kimiya inventory was worth $528,044 in 2016 and one rug not listed in the company’s regular inventory was sold February 1, 2019 for $89,835. Considering the above, it is suggested that $438,209 of unreported Kimiya inventory or cash equivalent, should be attributed to the company as at April 11, 2019.”
[120] The Krofchick Report does not assign “unreported inventory” as he accepted that the vast majority of the inventory was on consignment after reviewing supporting documents.
[121] I prefer the evidence of ‘unreported inventory’ contained in the Krofchick Report over the evidence of ‘unreported income’ contained in the Kidikian Report. The Krofchick Report is based on supporting documentation. The Kidikian Report is based on speculation.
[122] In addition to the above, the evidence regarding sales of Persian Rugs was clear. Mr. Stock testified that Persian rugs have fallen out of favour. The worldwide market is down in the past 15 years. The explanation for this is that older people are downsizing and do not have the space for rugs. The younger generation is largely uninterested in Persian rug designs. This is consistent with International Rug Gallery pivoting to provide mostly cleaning services and valuations rather than sales of rugs. Indeed, it is also consistent with International Rug Gallery closing its showroom and sub-leasing the showroom space to Avenue Rugs.
[123] I accept the Krofchick value of the business as of April 11, 2019, at nil.
[124] Accordingly, on the date of separation, the only significant assets to be equalized are the matrimonial home and the RRSPs and the only significant debt is the mortgage and line of credit.
Notional Disposition Costs
[125] Under the Family Law Act, R.S.O. 1990, c. F.3,
(1) “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse's debts and other liabilities, and ...
(1.1) Net family property, liabilities.
The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property.
[126] Where the circumstances of a case warrant their inclusion, contingent liabilities can include taxes and the costs of disposition of assets.[^1]
[127] As a general rule, a court will only permit a deduction for notional tax and disposition costs if it is more likely than not, on the evidence, that such costs will be incurred.[^2]
[128] The issue of notional costs of disposition was reviewed in the Ontario Court of Appeal's decision in Sengmueller v. Sengmueller.[^3] According to Justice McKinlay at p. 215:
In my view, it is equally appropriate to take such costs [i.e. tax consequences] into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as a deduction of a liability: the result is the same. While these costs are not liabilities in the balance-sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves.
[129] Justice McKinlay went on to explain at p. 216:
If assets are transferred in specie or are realized upon to satisfy the equalization payment, the amount of tax and other disposition costs is easily proven, assuming the availability of a preliminary calculation of the equalization payment. The real problem arises when the equalization payment is satisfied with liquid assets not subject to disposition costs, and there are other assets to be valued for the purposes of s. 4(1) which will inevitably be subject to disposition costs at some time in the future. Two questions then arise: First, in what circumstances should disposition costs be deducted, and second, how should the amount of the deduction be calculated?
[130] According to Justice Czutrin in the case Hawkins v. Huige,[^4] the Court of Appeal's decision in Sengmueller, has come to stand for the following propositions (paras. 101-102):
notional costs of disposition are to be deducted as long as it is clear that these costs will be incurred;
if the costs of disposition are so speculative that they can safely be ignored based on the evidence presented, they should not be considered; and
the circumstances of each case should determine how notional income tax and disposition costs should be calculated.
[131] The Court of Appeal in Sengmueller, noted that RRSPs are “taxable in full, regardless of the time of realization and regardless of whether they are cashed in full or taken by way of annuity” (at p. 218). It is now generally accepted that RRSP funds, like pensions, will be reduced by a reasonable amount to account for the income tax ultimately payable when brought into income.[^5]
[132] In the current case, the Respondent’s RRSPs are taxable, and they have been collapsed. For these reasons, they satisfy the threshold for a deduction based on notional disposition costs.
[133] The court in Virc v. Blair[^6] stated:
Courts have adopted various approaches to deal with the lack of evidence in these cases. In some cases, the Court will allow a deduction in the absence of any evidence and will simply insert a percentage without further discussion. In other cases, a deduction may be allowed but at a reduced rate. However, in some cases the Court disallows the deduction altogether due to lack of evidence. Courts have considered hindsight evidence of post-separation tax rates and actual costs of disposition incurred when RRSPs were sold after separation but before trial.[^7]
[134] In Hawkins v. Huige, the wife proposed the tax rate of 30% be used for both parties' RRSPs. Justice Czutrin concluded that while 30% “may appear reasonable, it does not take into account future contingencies and the present values given the age of the parties.” Disappointed that neither party had provided reliable evidence as to likely disposition dates and the present value of any possible future disposition, Justice Czutrin decided to allow a 23% notional tax reduction on all potentially taxable assets, being half the current top marginal rate of 46%. Justice Czutrin expressed: “Absent reliable evidence and following case law, I find this is the fairest way to deal with this issue for both parties” (para. 112).
[135] In Ali v. Williams,[^8] Justice van Rensburg allowed disposition costs on both parties' RRSPs, as a result of the Court of Appeal's decision in Sengmueller v. Sengmueller, noting: “Costs of disposition should be calculated in particular with respect to RRSPs which will be subject to tax whether they are cashed in or received subsequently as an annuity” (at para. 102). Justice van Rensburg used the tax rate of 25% for both parties.
[136] I have applied a notional disposition cost of 25% for the Respondent’s RRSPs which is fair and proportionate.
Unequal Division
[137] Both parties claim an unequal division of net family properties.
[138] Pursuant to Section 5(6) of the Family Law Act, the court may award a party an amount of property that is more or less than half the difference between the net family properties in certain circumstances:
Variation of share
5 (6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
[139] The Applicant claims that the withdrawals from the line of credit used to start International Rug Gallery in 2016 were a reckless depletion of assets. I do not agree. The Respondent commenced International Rug Gallery in good faith two years before the parties’ separation. He again used money from the line of credit to fund the business two years before the separation. I do not accept that doing so was reckless. I accept that the Respondent did so to improve the family’s financial situation.
[140] The Respondent states that the Applicant’s spending of $100,000 on cosmetic surgeries and her resistance to being employed resulted in a reduction of net family properties and triggers an unequal division of assets claim. I do not agree. The Applicant’s cosmetic surgeries occurred many times over many years. The cost was absorbed by the family without issue until after separation and was not a reckless depletion of assets. The Applicant’s failure to obtain employment during the marriage is not sufficient to advance an unequal division of property claim.
Chattels
[141] The Applicant has the $40,000 Flemish historical tapestry valued by Mr. Glazier.
[142] The Respondent has the 17th century Brussels tapestry valued by Mr. Stocks at $25,000, and he has the 16th century historical Flemish tapestry valued by Mr. Stocks at no more than $15,000.
[143] The Respondent states that the Applicant removed many items of furniture and rugs from the home. Most of the chattels removed by the Applicant are rugs that the Respondent values at $144,000. I do not have sufficient evidence to establish the value of the rugs the Applicant removed from the home. Similarly, I do not have sufficient evidence to determine the value of any rugs that might have been in the possession of International Rug Gallery at the time of separation. With respect to the latter, if there are any rugs, they would have been unsold for many years and, in my estimation, are likely dead stock that is no longer sellable. With respect to the former, Persian rugs have fallen out of favour, and I am not inclined to assign any significant value to the Applicant for the rugs in her possession outside of the $40,000 Flemish tapestry.
[144] The Respondent removed furniture from the matrimonial home, including a sofa, two chairs, a dining room table and chairs, an Indian rug, two television sets, the granite kitchen table, the master bedroom suite, two end tables, and a candelabra.
[145] I have concluded that the parties have divided the furniture and rugs sufficiently such that no equalization payment is available for those chattels.
[146] I have calculated the payment of equalization as follows:
(a) the Respondent owes the Applicant an equalization payment of $11,409.40; and
(b) the equity in the matrimonial home, subject to post-separation adjustments, is to be divided equally.
[147] The matrimonial home sold in September of 2020 for $2,031,412.22.
[148] Pursuant to the Trust Ledger Statement dated May 17, 2023, $607,957.85 of payments were made from the sales proceeds:
(a) $603,701.20 to discharge the first mortgage;
(b) legal fees of $2,654.60; and
(c) adjustments for utilities and taxes of $1,602.05.
[149] That leaves $1,423,454.37 available to the parties.
[150] The fees for the administration of the trust account were $847.50, leaving $1,422,606.87 available for equalization. Each party will receive equalization from the sale of the matrimonial home in the amount of $711,303.43, subject to post-separation adjustments.
Post-Separation Adjustments
[151] The first post-separation adjustment is $148,038.55 to discharge the second mortgage. The parties received:
Applicant $20,000 and Respondent $125,000.
[152] The parties were to share the cost of the second mortgage proportionately. Accordingly, the share of the expense is apportioned as follows:
Applicant $419.11 and Respondent $2,619.44.
[153] To address the second mortgage payout, the Applicant is credited with receiving $20,419.11 in equalization and the Respondent is credited with receiving $127,619.44.
Applicant: $711,303.93 - $20,419.11 = $690,884.82.
Respondent: $711,303.93 - $127,619.44 = $583,684.49.
[154] The Applicant received $105,000 from the net sale proceeds after separation.
[155] Accordingly, the Applicant’s payment is reduced to $585,884.82.
[156] The parties indicated to the court that the Respondent received $144,989.42 from trust. However, the numbers presented to the court do not correspond with the Statement of Adjustments prepared by the real estate lawyer. The court has concluded that the parties failed to take into account an additional $20,685.58 paid to the Respondent as is set out in the Statement of Adjustments from Korman & Company on May 17, 2023. The Respondent, therefore, received $165,675 from the net sales proceeds after separation.
[157] Accordingly, the Respondent’s payment is reduced to $418,009.49.
[158] As stated, the Respondent owes the Applicant an equalization payment of $11,409.40 (see para. 146 above). Accordingly, after post-separation adjustments,
(a) the Applicant shall receive $597,294.22 from the net sales proceeds held in trust; and
(b) the Respondent shall receive $406,600.09 from the net sales proceeds held in trust.
[159] If the parties agree that the court’s treatment of the $20,685.58 referenced in paragraph 156 above is incorrect, they may send a consent Order to the court to rectify this amount.
[160] Any fees not yet incurred for the administration of the Korman & Company Trust Account, shall be shared equally. As a result of the rounding up of certain numbers, the amount in the trust account may not equal the payouts set out in para. 158. Any surplus or deficit shall be shared equally by the parties.
Unjust Enrichment
[161] Surprisingly, the Applicant advances an unjust enrichment claim.
[162] The tripartite test first set out in Becker v. Pettkus,[^9] is instructive. There must be:
(a) enrichment;
(b) a corresponding deprivation; and
(c) no juristic reason for the enrichment.
[163] The Applicant advances the position that, when the Respondent started his company, International Rug Gallery in 2017, he used money from the line of credit to fund the venture. The Applicant states that the Respondent was enriched by the contribution from the parties’ joint line of credit. The Applicant argues that she was deprived of her equity in the matrimonial home.
[164] When the Respondent started his company in 2017, the parties were married. The lines of credit used to fund the business were almost entirely before the date of separation.
[165] Pursuant to the Family Law Act, the parties’ net family property is to be equalized. Unjust enrichment that arises during a marriage, as is argued by the Applicant, is addressed through equalization. Accordingly, the Applicant’s claim for unjust enrichment is unnecessary, unjustified and dismissed.
Security for Child and Spousal Support
[166] The Applicant requests an Order securing the Respondent’s ongoing child support and spousal support payments.
[167] Pursuant to section 40 of the Family Law Act, the court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.
[168] Pursuant to section 34(1) of the Family Law Act, in an application under section 33, the court may make an interim or final order,
(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
(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;
(d) respecting any matter authorized to be ordered under clause 24(1) (a), (b), (c), (d) or (e) (matrimonial home);
(e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant's benefit;
(f) requiring that support be paid in respect of any period before the date of the order;
(g) requiring payment to an agency referred to in subsection 33(3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order;
(h) requiring payment of expenses in respect of a child's prenatal care and birth;
(i) requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably;
(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on property or otherwise.
[169] I decline to exercise my discretion to make a lump sum spousal support order, and I decline to exercise my discretion to make an order providing lump sum child support.
[170] The Respondent is 59 years old. While he has been late in making his uncharacterized payments ordered by Justice Bennett on January 22, 2020, he made them. Some of them came from his share of the net proceeds following the sale of the matrimonial home. As stated, the Respondent, in addition to making these payments, also paid for the mortgage, insurance and expenses on the matrimonial home, the Applicant’s car payments, A.M.’s cell phone, and A.M.’s section 7 expenses for post-secondary education.
[171] The Applicant, despite her circumstances, has an obligation to attempt to become self-sufficient. I have imputed income to her in the amount of $30,000 per annum recognizing that she is able to work in some capacity. The Applicant is a qualified real estate agent, and it is expected that her business will improve with time.
[172] For all of these reasons, I decline to make an Order for security of support or for lump sum support.
Life Insurance
[173] The Respondent does not have a life insurance policy that I was directed to. He does have an obligation to provide for his dependent child and spouse. It is appropriate that the obligation be secured by life insurance.
Order
This is a final Order.
This Order is made under the Divorce Act and the Family Law Act.
The claim for divorce is severed from the claims for corollary relief pursuant to Rule 12(6) of the Family Law Rules and may proceed on an uncontested basis on affidavit evidence.
Commencing January 1, 2021, and on the first day of every month until August 31, 2023, the Respondent shall pay to the Applicant, spousal support in the amount of $2,300 based on the Applicant’s imputed income of $30,000 and the Respondent’s imputed income of $100,000 and the ‘with adult child’ formula.
Commencing September 1, 2023, and on the first day of every month thereafter, the Respondent shall pay to the Applicant, spousal support in the amount of $1,700 based on the Applicant’s imputed income of $30,000 and the Respondent’s imputed income of $100,000 and the ‘with child’ formula.
Commencing September 1, 2023, and on the first of every month thereafter, the Respondent shall pay to the Applicant, child support for A.M. in the amount of $910 based on the Applicant’s imputed income of $30,000 and the Respondent’s imputed income of $100,000 and the ‘with child’ formula.
The Family Responsibility Office shall apply any overpayments made by the Respondent to the Applicant based on the January 22, 2020 temporary Order of Justice Bennett to the child and spousal support obligation set out in paragraph 6 of this Ruling, and then as is set out in paragraph 4 and 5 of this Ruling until exhausted.
Commencing September 1, 2023, the parties shall share A.M.’s section 7 expenses at Applicant 23% and Respondent 77%. The expenses include A.M.’s post-secondary education expenses and uncovered medical expenses only. Payments are due when invoices are provided.
The Applicant shall receive $597,294.22 from the net sales proceeds held in trust to equalize net family property.
The Respondent shall receive $406,600.09 from the net sales proceeds held in trust to equalize net family property.
The Applicant’s claim for unjust enrichment is dismissed.
The Respondent shall maintain a policy of life insurance on his life with a minimum face value of $250,000.
The Respondent shall name the Applicant as the sole irrevocable beneficiary of $250,000 of the policy proceeds.
The Respondent shall at all times maintain the policy in good standing and shall ensure there is no gap in coverage.
The Respondent shall provide the Applicant with proof of compliance with the insurance provisions within 30 days of this Order.
Upon death of the Respondent, any policy proceeds not required to satisfy the spousal support obligation owed by the Respondent to the Applicant shall be paid to the estate and distributed according to law.
Upon the death of the Respondent, any shortfall in the policy proceeds required to satisfy the support obligation owed by the Respondent to the Applicant shall be binding upon the Respondent’s estate.
SDO to issue.
If the parties cannot agree on the issue of costs regarding this trial, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, written submissions, limited to five pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to five pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.
Justice G.A. MacPherson
Date: December 8, 2023
[^1]: See Szpytko v. Szpytko(2001), 2001 28134 (ON SC), 20 R.F.L. (5th) 186 (Ont. S.C.); Marchese v. Marchese, 1999 CarswellOnt 4674 (Ont. S.C.), aff’d 2002 41443 (ON CA), 31 R.F.L. (5th) 343 (Ont. C.A.); and Shum v. Shum(1996), 1996 8093 (ON SC), 24 R.F.L. (4th) 95 (Ont. Gen. Div.).
[^2]: See Long v. Long(1994), 1994 18215 (ON SC), 8 R.F.L. (4th) 269 (Ont. Gen. Div.); Gomez-Morales v. Gomez-Morales(1990), 1990 12307 (NS CA), 30 R.F.L. (3d) 426 (N.S. C.A.); Starkman v. Starkman(1990), 1990 6793 (ON CA), 28 R.F.L. (3d) 208 (Ont. C.A.); and Leeson v. Leeson (1990), 1990 12281 (ON SC), 26 R.F.L. (3d) 52 (Ont. Dist. Ct.).
[^3]: Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (Ont. C.A.).
[^4]: Hawkins v. Huige, 2007 CarswellOnt 6762 (Ont. S.C.).
[^5]: Lackie v. Lackie, 1998 CarswellOnt 2200 (Ont. Gen. Div.); Appleyard v. Appleyard (1998), 1998 4974 (ON CA), 41 R.F.L. (4th) 199 (Ont. C.A.); and Hawkins, at para. 101.
[^6]: Virc v. Blair, 2016 ONSC 49, at para. 198.
[^7]: Ibid, citing Stacie R. Glazman & Susan Blackwell, “New Developments in Disposition Costs and Why They Matter” (2014), 33 C.F.L.Q. 49 (WL).
[^8]: Ali v. Williams, 2008 CarswellOnt 1757 (Ont. S.C.).
[^9]: Becker v. Pettkus, 1980 22 (SCC), [1980] 2 S.C.R. 834, at p. 848.