COURT FILE NO.: FS-21-00044492-0000

DATE: 2023-01-03

CORRECTED: 2023-01-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Courtney Daciuk, Applicant

AND:

Darryl Daciuk, Respondent

BEFORE: Kurz J.

COUNSEL: Angela Grant Lee, Ariel Kirzner for the Applicant

HEARD: April 26, June 6, July 27 and December 23, 2022

ENDORSEMENT

Corrected Endorsement: In paragraph 127, 5(c), “$5,300/mo” has been changed to “$5,300/yr”; and paragraph 127, 6 “post-separation” has been changed to “post-secondary”.

Introduction

[1] This uncontested family law trial was held before me on three occasions. I then received further materials in chambers, pursuant to my endorsement of July 27, 2022. Those materials only came to my attention in late November 2022, as they were apparently misfiled. I then held a conference call with counsel on December 23, 2022 to clarify information in their Divorcemate calculations.

[2] In my April 26, 2022 endorsement, I wrote:

[2] The parties began to cohabit in January 2014, married July 11, 2017 and separated on January 22, 2021. They have one child, Declan Richard Daciuk, born May 15, 2019 (“Declan”)

[3] The Respondent is an untreated alcoholic whose substance abuse has had serious effects on both his home and work life. It affects his ability to parent. It is a primary reason for the parties’ separation and the Applicant suspects that it is the reason that he lost his well-paying job at Arcelormittal Dofasco.

[4] Based on the information contained in the Applicant’s 23C affidavit, it is clear that it is in the best interests of Declan that he be in the exclusive care of the Applicant mother. She has been his primary caregiver since birth. The Respondent has been minimally involved in his care and has cancelled a number of opportunities to parent the child post-separation.

[3] At that time, I granted the Applicant the sole right to make all parenting decisions for the child, Declan. I further ordered that she may:

a. dispense with the Respondent’s consent to all documents that need to be signed regarding the child’s interests;

b. obtain a passport for Declan and travel outside of Ontario or Canada, all without his consent.

[4] I did not grant the Applicant the right to move with Declan without notice to the Respondent. I did not grant the Respondent any right to contact with Declan. Rather, any contact between him and Declan shall be with the consent of the Applicant. While the Respondent may move to change this order to obtain contact with Declan, in any such application, he should provide proof of any alcohol treatment and the state of his sobriety.

[5] I adjourned the April 26, 2022 date to June 9, 2022 and then July 27, 2022 to allow the Applicant to obtain further information and evidence regarding the remaining financial issues. This endorsement deals with those issues.

Issues

[6] The remaining financial issues in this case can be summarized as follows:

1. What “usual” equalization payment does the Respondent owe to the Applicant?

2. Is the Applicant entitled to an unequal division of the parties’ net family properties?

3. What post-separation adjustments does the Respondent owe to the Applicant?

4. Should income be imputed to the Respondent due to intentional unemployment?

5. If so, in what amount?

6. What amount should the Respondent pay to the Applicant as child support?

7. What amount, if any, should the Respondent pay to the Applicant for spousal support?

8. Should the support amounts be paid by way of a lump sum?

9. Should I grant the Applicant a divorce?

10. What costs, if any, should I award to the Applicant?

Issue No 1: What “usual” equalization payment does the Respondent owe to the Applicant?

[7] When I speak of a “usual” equalization payment, I refer to the payment described by s. 5(1) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), before a consideration of whether there should be an unequal division of net family properties under s. 5(6).

[8] Section 5(1) of the FLA sets out the right to an equalization of the net family properties of separated spouses. It states:

5(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

[9] Inasmuch as the Respondent has refused to participate in this proceeding, he has provided no disclosure to the court regarding any aspects of his finances, whether property or income. The court is left to rely only on the Applicant’s materials.

[10] The Applicant has filed three affidavits for this uncontested trial. Following the July 27, 2022 appearance, she filed two further net family property (“NFP”) statements, which I consider as set out below. The key difference between those two statements is whether they should include the value of the matrimonial home (the “Home”) on the date of separation or its present value. The Home is by far the largest asset owned by either party. One of the Applicant’s NFP statements includes the date of separation or Valuation Day (“V-Day”) value of the Home, of $735,000. The other NFP statement values the Home at its present value, $970,000.

[11] Because the Applicant did not claim a trust interest in the Home, she will only be entitled to share in any portion of its post V-Day increase in value of the Home if the court grants her request for an unequal division of the parties’ NFPs. That is the remedy that she seeks.

[12] Methodologically, it is appropriate for me to consider the V-Day value of assets and debts before I consider whether to order an unequal division of NFP’s. Only when the usual equalization payment (“EP”) is calculated can the court consider whether equalizing the parties’ NFPs would be unconscionable under s. 5(6) of the FLA (“s. 5(6)”): Frick v. Frick, 2016 ONCA 799, at para. 33.

[13] I have reviewed and, subject to one exception, accept the Applicant’s NFP statement, showing the value of the Home on V-Day at $735,000 and that the usual EP would be $239,882.07. That value excludes the Respondent’s work pension, valued at $94,322.03. The Applicant asks that the Husband’s pension be equally divided at source. As set out below, I so order. Accordingly, that pension value is excluded from the remainder of the EP calculation and will be divided at source.

[14] The sole exception to my acceptance of the NFP statement valuing the home on V-Day is that it excludes the notional costs of disposition of the Home. It is most likely that the Home will have to be sold to pay the EP and support awards that I grant to the Applicant. That is exactly the relief which she requests if the payments she seeks are not made within 60 days. Based on the evidence before me, that payment is highly unlikely until the Home is sold.

[15] In those circumstances, it is open to the court to include notional costs of disposition: Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295 at para 55, Sengmueller v. Sengmueller, 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208, [1994] O.J. No. 27 (Ont. C.A.), at paras. 21, 26, and 33.

[16] Accordingly, I deduct 5% notional cost of disposition from the $735,000 value attributed to the Home in the Applicant’s NFP statement, or $36,750. I also deduct $1,000 as the notional costs of legal fees for the sale. That reduces the EP set out in that statement by $19,375, from $239,525.70 to $220,150.70. That is the usual EP that the Respondent would pay to the Applicant, unless I order an unequal division of the parties’ NFPs.

Issue No. 2: Is the Applicant entitled to an unequal division of the parties’ net family properties?

[17] The right to claim an unequal division of the parties’ net family properties is found in FLA s. 5(6). That provision reads as follows:

Variation of share

(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.

[18] In determining unconscionability, the court must look to “the financial result, the result of the usual NFP equalization … after taking into account only the eight enumerated considerations, nothing else”: Cosentino v. Cosentino, 2015 ONSC 271, at para. 49, cited in Frick v. Frick, at para. 32.

[19] In Maharaj v Wilfred-Jacob, 2016 ONSC 7925, at paras. 205-6, Trimble J. set out a very helpful summary of the rules and rationale for the application of s. 5(6) and its high bar of unconscionability. He wrote:

205 The case law has made it clear that the intent of the section is not to alleviate every situation that may be viewed as in some ways unfair or inequitable, because equal sharing should occur in most cases. The test is that equal division is "unconscionable", a high test, rarely met. The Ontario Court of Appeal has interpreted "unconscionable" to mean "shocking the conscience of the court" (see Macdonald v. Macdonald (1997), 1997 CanLII 14515 (ON CA), 33 R.F.L. (4th) 75 (Ont. C.A.). The terms, "shockingly unfair", and "patently unfair" or "inordinately inequitable" have also been applied (see Mehmeti v. Mehmeti, [1999] O.J. No. 3534 at para. 12 and the cases referred to therein). Further, since the Family Law Act s. 5(6) uses the word "unconscionable" as opposed to "inequitable" as used in s. 4(4) of the Family Law Reform Act, the test is intended to be higher or more strict that unfairness, harshness or unjust (see Braaksma v. Braaksma, 1992 CanLII 8623 (ON SC), [1992] O.J. No. 1326 (UFC) app'd 1996 CanLII 904 (ON CA), [1996] O.J. No. 4097 (C.A.) and Peake v. Peake, [1989] O.J. No. 988 (Ont. H.C.J.).

[20] In Serra v. Serra, 2009 ONCA 105, Blair J.A., writing for the Ontario Court of Appeal underscored the high bar intended by the Legislature when it set the test for an unequal division of NFP’s at unconscionability. At para. 48 he wrote: “There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable”.

[21] The rationale for the setting of the bar under s. 5(6) at unconscionability rather than unfairness was articulated by Trimble J. in Maharaj v Wilfred-Jacob at para. 206 as follows:

206 The Family Law Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims (see Ward v. Ward, 2012 ONCA 462, para. 22 to 25, and Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47).

[22] Before further analyzing the issue, I note that I raised with counsel the fact that the parties’ marriage lasted only about 3.5 years. I questioned whether that fact in itself may be sufficient to reduce the Applicant’s claim for equalization in light of s. 5(6)(e). That provision allows a court to consider unconscionability within the context of “a period of cohabitation that is less than five years”. Having received the Applicant’s submissions, I am satisfied that the provision looks to a period of cohabitation, not marriage: Pope v. Pope, 1999 CanLII 2278 (ON CA), [1999] O.J. No. 242; 170 D.L.R. (4th) 89 (Ont. C.A.), at para. 32; Janjua v. Khan, 2013 ONSC 44, at para. 60. Here, the period of cohabitation was seven years, including the cohabitation during marriage. Thus s. 5(6)(e) does not apply to diminish the Applicant’s claim to equalization or unequal division of the parties’ NFPs.

[23] I also accept the Applicant’s argument that the fact that the Respondent brought the matrimonial home into the marriage does not make equalization of the parties’ NFPs unconscionable: Maharaj v Wilfred-Jacob, at para. 207. That is a feature, not a bug of the FLA.

[24] Here, the Applicant goes further, to argue that she is entitled to an unequal division of the parties NFP’s under s. 5(6)(h) (any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property). She relies on the three following factors:

a) Her investment of money, time and energy into improving both the Home and the previous house of the Respondent (described below as “Garside”);

b) Her inducement by the Respondent to sell her house and invest its proceeds in the Respondent’s former home; and

c) The Respondent’s breach of their agreement to include her on title to the Home.

[25] Once again, the only evidence that I have on any of those points is that of the Applicant. She deposes as follows:

a. In 2014, before they married, the parties agreed to purchase their next home jointly. At the time, they were living at the Respondent’s home on 135 Garside Ave. (“Garside”), which is presumably located in Hamilton;

b. Based on this understanding, she sold her property at 104 Fairfield Ave., Hamilton. She then used the proceeds of $12,491.41 to improve Garside for sale. She claims to have incurred the following expenses:

i. storage unit at $200/month for 17 months, totaling $3,400;

ii. replacement of the front cement steps/sidewalk walkway totaling $3,324.46;

iii. A sectional couch totaling $1,354.87;

iv. A washer and dryer totaling $958.24; and

v. Home improvement materials totaling $3,453.84 for:

1. the painting of the entire inside and outside of the house;

2. repairs to most of the window trim;

3. material to construct the back deck;

4. landscape improvements and maintenance of the gardens and lawn; and

5. repairs to the basement,

c. She also paid for necessary operating expenses, appliances, and furniture for that property.

d. Afterwards, but before the Respondent listed Garside for sale, he backtracked, telling the Applicant that he would place the Home in his sole name.

e. The Applicant deposes that she “simply accepted [the Respondent’s] narrative and the fact that [she] would not be a co-owner [of the Home].”

f. She nonetheless invested $23,765.95 into the Home through payments towards a deposit, renovations, and the cost of appliances and furniture, as follows:

i. “security deposit”: $3,000;

ii. permanent patio roof structure: $8,489.40;

iii. new washer and dryer: $2,114.54;

iv. sectional couch for the main living area: $3,673.31;

v. marble buffet table for the living room: $988.70; and

vi. “Every spring/summer I paid for and personally maintained all our garden landscaping and flowers (estimated value of materials alone = $500 per year = $2,500 over 5 years)”.

g. Accordingly, the Applicant claims that her total cash investment in the Respondent’s two properties, including the Home, was $33,257.36.

h. She adds that this figure does not “capture the value” of her “sweat equity, initiative, and attention to both properties over a seven-year period”.

[26] The Applicant admits that she has no documentary or other independent evidence of the promise to place her on title to the Home. However, she argues that:

a. It would have made no sense for her to sell her home and use the proceeds of her sale to improve two of the Respondent’s properties unless the promise of shared equity were made;

b. In any event, the contributions she made are sufficient to meet the test of unconscionability and entitle her to equally share in the post-separation increase in the value of the matrimonial home.

[27] I reiterate that the issue under s. 5(6) is not whether it would be unfair for the Applicant to be denied an unequal share of the net family property of the parties, and in particular, one-half of the increase in value of the matrimonial home, post separation. It is whether it would be unconscionable to allow the usual scheme of the FLA’s s. 5(1) equalization scheme to apply here. I find that the Applicant has not met that very high and rarely scaled bar.

[28] Even accepting that the Applicant sold her home and used the net proceeds of $12,491.41 towards the Garside property and then put more funds into the Home, s. 5(6) calls upon me to consider a broad variety of factors. They include any “circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property”: s. 5(6)(h). Among the factors that I have considered are the following:

a. The contribution that the Applicant made to Garside precedes the parties’ marriage;

b. The Applicant admits that she accepted the Respondent’s desire to place the Home in his sole name;

c. Based on the evidence provided in this trial, until separation, the Respondent was making the majority of the payments towards the Home;

d. At least part of what the Applicant contributed towards the Garside property went to unspecified storage, a couch, and a washer and dryer, which may or may not have gone on to the next home. She also enjoyed the benefit of those items;

e. Similarly, some of the items which the Applicant purchased for the Home were furniture and appliances, which benefitted her. The Applicant’s upkeep of a garden and flowers was part of maintaining the Home in which she lived, and again to her benefit.

f. The Applicant’s contributions to Garside and more particularly the Home are reflected in its V-Day value. Any contributions she made after V-Day will be reimbursed.

g. The scheme of the FLA deprives the Respondent of a deduction for his interest in the Home at the date of marriage. That aspect of the legislative scheme works to the Applicant’s advantage, although she does not provide sufficient evidence to determine the exact amount of that advantage. Nonetheless, the court can take judicial notice of the great increase in property values in the Greater Toronto area, including Hamilton, since the parties began to cohabit;

[29] For those reasons, I do not find that it would be unconscionable to order the usual equalization of the parties’ NFP’s. As set out above, that figure is $220,150.70. In addition, the Applicant is entitled to the post separation adjustments set out below.

Issue No. 3: What post-separation adjustments does the Respondent owe to the Applicant?

[30] The Applicant claims $8,352.89 in post-separation adjustments. This figure is based on expenses that she paid relating to the matrimonial home, which she says were solely the responsibility of the Respondent. They are as follows:

a. $2,408.11 in utility bills for the matrimonial home;

b. $5,182.03 in mortgage payments since April 2022, as the Respondent refused to pay; and

c. $762.75 for an appraisal of the Home.

[31] I accept that the first two figures are appropriate post-separation adjustments, which the Respondent owes to the Applicant. The last figure is a disbursement that is properly the subject of a costs award and should be considered in that regard. Thus, I grant the Applicant $7,590.14 in post- separation adjustments.

Issue No. 4: Should income be imputed to the Respondent due to intentional unemployment?

[32] The Applicant claims that the Respondent was intentionally unemployed because of the manner of termination of his employment from ArcelorMittal Dofasco GP (“Dofasco” or the “employer”), a Hamilton steel company. As set out below, I agree.

Evidence of Dofasco Employees

[33] On July 27, 2022, I heard the oral evidence of three Dofasco employees: Chris Martin, an electric arc coach; Joanne Diemert, a senior specialist in the employee relations department, and Laura Kiefer, a contract specialist in the central trades and specialist department. I also received the affidavit of Amanda Dunn, a human resources specialist at Dofasco.

[34] From Mr. Martin, I learned that the Respondent was a capable and skilled team leader of a work group. He capably maintained the Dofasco factory’s furnace in planned outage days and shutdowns. Between 2019 and 2021, the Respondent told Mr. Martin numerous times that he wanted to step down from his supervisory role to assume a less stressful role. He was finally granted his wish in April 2021.

[35] Mr. Martin understood that the Respondent’s employment was terminated by Dofasco on February 22, 2022. He was terminated for two related reasons: his numerous work absences and his failure to communicate with the employer regarding those absences.

[36] That lack of communication was a key concern for Dofasco. The Respondent would be absent from work for days and even weeks at a time. The employer unsuccessfully attempted to communicate with the Respondent every day that he was off work, whether by texts or voice messages. The employer was worried about him.

[37] These absences affected operations at Dofasco. At times, the employer had to send an employee home during the day so that it could cover the Respondent’s night shifts.

[38] Because of the Respondent’s high skill level and value to the Dofasco team, he was given more opportunities than most to deal with the employer’s concerns. But it got to the point where it was no longer acceptable to support him in this manner.

[39] Ms. Diemert testified, based on her review of the Dofasco human resources employee records for the Respondent. She described his case as a “tragic” one. Those records showed the Respondent to have been a bright and promising employee. He was a high performer who received a number of promotions. Unfortunately, his personal concerns interfered with his work.

[40] Dofasco has both a medical and employee assistance programme. Both were made available to the Respondent, but he did not wish to take them up.

[41] Dofasco does not terminate employees who need assistance. It will not discipline employees for absences due to illness or disability. The Respondent was not disciplined for either form of malady, but rather for his failure to call in to report and explain his absences. In addition, he allowed his father to use his company identification pass to improperly enter the company grounds to pick him up. His father proceeded to get into an accident of sorts, getting stuck on railroad tracks located on company grounds; requiring assistance to extricate his vehicle.

[42] The misuse of company identification is strictly forbidden. The Respondent was given a written counseling letter regarding both his reliability and his judgment in offering the identification pass to his father. That was the last warning and straw. Typically, employees are given three warnings before termination. The respondent was offered seven.

[43] Laura Kiefer held a supervisory position at Dofasco that was analogous to the one formerly held by the Respondent. She testified that he was not present for a major shutdown around September 2020. A number of people at Dofasco were aware that he was experiencing trouble at home.

[44] Dofasco employees attempted to stage an intervention with the Respondent. They wanted to convince him to enter the Dofasco medical programme, which would have included the well-respected Homewood alcohol treatment centre. The Respondent did not want to accept this offer. When one employee said that he would pick the Respondent up to take him to the Dofasco medical programme, he agreed. But when the fellow employee arrived the next day, the Respondent refused to go. The same thing happened one other time as well.

[45] The affidavit of Amanda Dunn contained the seven warning letters sent by Dofasco human resources staff to the Respondent. I have reviewed them. They all indicated a concern for the Respondent’s work attendance and sought to convince him to discuss the issue with the employer’s staff. The letters also demonstrate Dofasco’s escalating level of concern regarding the Respondent’s conduct. Two letters warned that a failure to respond would lead to the assumption that he had resigned from his employment.

[46] The Respondent’s increasing alcohol use and even abuse may have contributed to his absences and the other conduct that led Dofasco to terminate his employment. But they were not the ostensible cause of his termination. The four Dofasco employees make no reference to alcohol as the reason for the Respondent’s termination from his job. Rather, Dofasco decided to terminate the Respondent’s employment because of his frequent, lengthy, and unexplained absences from work. It did so only after offering the Respondent a suite of health-related assistance, which he refused.

The Applicant’s Imputation Request

[47] For those reasons, the Applicant asks me to impute income to the Respondent, on the basis of intentional unemployment. She offers the court three potential scenarios for the imputation of income:

• $127,307.30 per year, representing an average of the Respondent’s five best income years, from 2015 – 2019;
• $113,641 per year, representing the Respondent’s employment income between 2015 and 2021;
• $94,941 per year, representing the Respondent’s income from 2019 - 2021.

[48] The Applicant argues that I should adopt the first scenario as it best captures the Respondent’s pattern of employment before running into trouble at work. It does so by ignoring a year in which he was often absent from work and the year of his termination.

Legal Authorities Regarding the Imputation of Income

[49] As a general rule, separated parents have an obligation to financially support their children and other dependants. They cannot avoid that obligation by a self-induced reduction of income: Lindsay v. Jeffrey 2014 ONCJ 1 at para. 36, citing Thompson v. Gilchrist, 2012 ONSC 4137 and DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

[50] Under s. 19(1)(a) of the Child Support Guidelines (the “Guidelines”), a court has the power to impute an income to a parent or spouse which is greater than their actual income. The provision reads as follows:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(f) the spouse has failed to provide income information when under a

legal obligation to do so;

[51] The leading Ontario case regarding the imputation of income to a support payor is the decision of the Court of Appeal for Ontario in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.) (“Drygala”). At para. 32 of that decision, the Court described the imputation of income as:

... one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[52] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[53] In reviewing the applicable case law, Chappel J. cites seven principles that apply to the imputation of income to a support payor:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. (at para. 57, citations omitted).

[54] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not untrammeled. As the Court of Appeal stated in Drygala:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence. (at para. 44).

[55] Drygala v. Pauli directed that a court considering a request to impute income under s. 19 (1) (a) of the Guidelines must answer the three following questions:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable or health educational needs?

3. If not, what income is appropriately imputed?

[56] The test set out in Drygala was refined by the Court of Appeal for Ontario in Lavie v Lavie, 2018 ONCA 10. There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment (other than health or education needs) are not relevant. He wrote:

26 There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[Emphasis added]

[57] As Sherr J. stated in Lindsay v. Jeffery, above, at para. 35:

Once underemployment or unemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way… It must be reasoned, thoughtful and highly practical.” [citations omitted].

[58] If a support payor leaves their employment in a manner that neglects their support obligations, they can be found to be intentionally underemployed. For example. in Marucci v. Marucci 2001 CarswellOnt 4349 (S.C.J.), Haines J. cited s. 19(1)(a) in refusing to lower a payor’s support obligations. The payor quit his low-paying job to return to school, despite a support obligation under a court order. Haines J. found that the payor:

made no inquiry into the prospects of employment when the programme was completed, made little inquiry into the nature and difficulty of the programme, and persisted when it was apparent early on that successful completion of the course was dubious. It seems to me that Mr. Marucci has taken to the lifestyle of the student and forgotten his obligations as a parent.

[59] A number of decisions demonstrate that misconduct leading to employment termination can be seen as intentional under or unemployment. In Luckey v. Luckey, 1996 CanLII 11217 (ON SC), [1996] O.J. No. 1960 (S.C.J.), Czutrin J. was unwilling to reduce a support order when the payor had been terminated for assaulting a fellow employee. This case made no reference to s. 19(1)(a) because it preceded the implementation of the Child Support Guidelines.

[60] In Sherwood v. Sherwood, 2006 CanLII 40795 (ON SC), [2006] O.J. No. 4860 (S.C.J.), Coats J. imputed income to a payor after his deliberate conduct led to the termination of his employment. After obtaining a new job, the payor chose to take a lengthy, indefinite leave of absence. Among Coats J.’s findings were:

a. The unemployment was the result of a deliberate choice or series of choices;

b. The consequences of the payor’s choice should be born by him, not his dependants

c. If he was claiming a medical inability to work, the onus lay on him to prove it.

[61] In Malcolm v. McGee, 2017 ONCJ 357, a payor was fired from their job due to his misconduct. He was a sanitation truck driver who was required to maintain his truck driver’s licence. In order to renew that licence, he was required to pass an eye test. But he failed it, meaning that he had to obtain a new prescription and glasses to retake the test. At this point, he began to make what Sherr J. described as “very poor decisions”. He failed to get new glasses or take a new eye test, citing the cost. He then compounded his error by failing to inform his employer that he had lost his licence. Rather, he kept on driving, unlicensed. This decision placed his employer at some financial risk. When the employer learned from a third-party of the payor’s unlicensed status, it fired him for cause. Sherr J. found that the payor’s income had been reduced because of his own “misconduct”: paras. 45, 49(c) and 50 (a).

[62] Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773; Gordon v. Wilkins, 2020 ONCJ 114. That includes whether to impute income to a payor who loses a job because of their own conduct, and the amount to impute to them: Gordon v Wilkins, at para. 44, Malcolm v. McGee, at para. 48.

[63] In Gordon v Wilkins, at para. 47, Sherr J. wrote of the broad discretion to determine the appropriate income to impute to a payor who is earning less than they could because of their reckless behaviour or misconduct. He stated:

The court is also not bound to impute income at the payor's previous income level if it decides to impute income due to the payor's reckless behaviour or misconduct. It can impute income in an amount different than what the payor had been earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773.

[64] In Malcolm v. McGee, Sherr J. wrote at paragraphs 47 and 48:

[47] The court must determine how to allocate the consequences of the father's poor decisions. The mother argues that the father should bear the entire cost of these decisions -- the child should not receive any less support.

[48] The court agrees with the mother to some extent. However, at a certain point, an existing order can become unrealistic and unjust due to a payor's changed circumstances -- no matter if those changed circumstances were caused by the payor's misconduct. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order.

[65] There appear to be two schools of thought regarding the imputation of income when the payor is suffering from a substance abuse problem. In Hutchinson v. Gretzinger, 2007 CarswellOnt 8325 (S.C.J.), Quinn J. equated unemployment due to drug use as self-induced unemployment. At para. 24, Quinn J. wrote:

To the extent that drug addiction is properly viewed as an involuntary illness, the initial drug use is voluntary and, therefore, it is intentional. It is wrong in law (and contrary to public policy) that a parent be exempted from his or her child support obligation because of drug addiction. As was said by Eberhard J. in another context, “He may someday have better ability to pay and there is no reason why the arrears should not be there waiting for him”: see Courchesne v. Courchesne, [2004] O.J. No. 442 (Ont. S.C.J.) at para. 13.

[66] Quinn J. added at para. 23: “[s]uch conduct may be equated with self-induced under-employment or unemployment.

[67] At least some part of Quinn J.’s analysis dealt with the illegality of drug use and the addict’s knowledge of the potential for addiction when first ingesting drugs. He imputed income at a minimum wage level for both the drug use and the failure to offer disclosure.

[68] On the other hand, the decision of Sherr J. in Lindsay v. Jeffrey 2014 ONCJ 1, characterized a more recent approach to substance abuse. That approach is open to the understanding that substance abuse can be a medical condition or its consequence. It does not have to be treated as a moral failing or an intention to avoid a support obligation (although that intention is not necessary to make a finding under s. 19(1)(a)). Sherr J. wrote:

39 This court endorses the approach taken in Kalanuk[^1]. The ravages of drug and alcohol addiction are observed weekly in this court in custody/access and child protection cases. Many parents who love their children very much and are very motivated to play an important role in their children's lives have their roles in their lives profoundly reduced or even eliminated because they have a substance addiction over which they have little control. This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment, pursuant to clause 19 (1)(a) of the guidelines.

[69] That being said, Sherr J. made it clear that compelling medical evidence is needed to make the claim of medical disability. As he wrote at para. 40: “[c]ogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work.” Absent such evidence, the court should reject such a claim.

Application of Authorities to the Facts of this Case:

[70] The Respondent was not fired because he is an alcoholic. He was fired because of his frequent failure to attend work and his refusal to meaningfully engage with his employer regarding those absences. The Respondent could have kept his job, despite his substance abuse problems, had he responded to his employer’s and even his fellow employees’ offers of help. Recall that he was even given a less stressful job and offers of assistance. But the Respondent effectively abandoned his employment and ignored the appropriate contacts of his employer and fellow employees. Those were his decisions.

[71] While not necessary to prove intentional under or unemployment, the Applicant deposes that following their separation, the Respondent made several threats to her, to dispose of or jeopardize his assets and income sources, only to spite her. He let her know of his intention to avoid any support obligations to her.

[72] In considering the first two factors set out in Drygala: 1) the Respondent is intentionally unemployed, and 2) that intentional unemployment is not required by virtue of his reasonable or health needs. Further, per Lavie, above, if he is earning any income, he is almost certainly making less income that he is capable of earning. Accordingly, I am willing to impute income to the Respondent under s. 19(1)(a).

[73] Although not necessary to this determination, the Respondent’s failure to provide any disclosure whatsoever is also, in itself, a ground to find that he is intentionally under or unemployed per Guidelines s. 19(1)(f).

Issue No. 5: What amount of income should be imputed to the Respondent?

[74] At this stage, Drygala directs me to determine the income to impute to the Respondent. The Applicant offers a number of scenarios, based on the Respondent’s previous income with Dofasco. That income, from 2015 – 2021 was as follows:

$118,760.19 in 2015;

$124,778.79 in 2016;

$126,417.54 in 2017;

$140,744.26 in 2018;

$125,836.12 in 2019;

$83,913.65 in 2020; and

$75,035.99 in 2021.

[75] The Applicant asks me to ignore the years 2020 and 2021 as they do not reflect the income that the Respondent earned when he was working on a fulltime basis. Rather, they reflect his effective part-time work in 2020 and 2021. The Applicant submits that I should impute the Respondent’s income at $127,307.38 per year, representing his average annual earnings between 2015-2019.

[76] The Applicant points out that if the Respondent’s 2020 and 2021 incomes were included in the analysis (i.e., his average earnings from 2015-2021), it would produce an unfairly lower income figure, of $113,640.93. If his past four year’s income (2018-21) were the basis of the income determination, the average would be $106,382. That would be unfair because he was intentionally underemployed before he became unemployed. That would skew the calculation of income that can appropriately be imputed to the Respondent.

[77] In Lindsay v. Jeffrey and Thompson v. Gilchrest, both cited above, the court imputed income at the payor’s previous level before quitting their jobs. In Thompson v. Gilchrest, Minnema J. did so even though the payor had taken a new and lesser paying job, from which he was later laid off. Minnema imputed income at the former level after finding that the payor need not have quit his previous, higher paying job. On the other hand, in Malcolm v. McGee, Sherr J. exercised his discretion not to impute the father’s income at his previous employment levels indefinitely because of a variety of factors, most of which have not been proven here. Had the Respondent offered any similar evidence, it may have been possible to follow Sherr J.’s lead in Malcolm v. McGee. Absent such evidence, that direction is not open to me.

[78] I am aware that s. 17(1) of the Guidelines permits the court to use a payor’s past three years’ annual income to determine their income for support purposes, when reliance on his past year’s income alone would not reflect “the fairest determination” of that income. But s. 17(1) does not apply when income is being imputed under s. 19(1). In addition and for the reasons set out above, that method of calculation would not represent the fairest and most reasonable manner of calculating the Respondent’s income.

[79] Thus, I agree with the Applicant that the figure of $127,307.38 is a fair and appropriate figure for the imputation of income to the Respondent. The 2020 and 2021 years were anomalous in that the Respondent was intentionally underemployed, missing days and weeks of work at a time, before ultimately being fired.

Issue No. 6: What amount should the Respondent pay to the Applicant as child support?

Quantum of Table Support

[80] Based upon the Divorcemate calculation offered by the Applicant, table support for a payor earing $127,307.38 per year is $1,125 per month. That is the appropriate table child support figure for the child, Declan. That amount is payable from the time of separation onwards: Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102 (S.C.C.), at para. 41.

Quantum of s. 7 Special and Extraordinary Expenses

[81] The only s. 7 special and extraordinary expense that the Applicant is currently incurring for Declan, is childcare. Currently, it is $805.80 per month ($9,669.60 annually). I am advised that this amount will decrease when Declan attends school, in a year or two. Since he is three years old, I will assume that he begins school at age five. He will then require before-and-after care, which the Applicant anticipates at $7,500 annually, based on $30-$40 per day or $150 per week. That $7,500 per year figure seems to be a reasonable estimate. For her part, the Applicant describes her figure as a “low-range estimate”.

[82] That being said, Declan will not require child-care indefinitely. He is presumptively entitled to table child support until he reaches age eighteen (Guidelines s. 3(1)). He will likely not require daycare after he reaches 12 years of age. Thus, an assumption that he will require $7,500 per year in daycare expenses until he turns 18 is not reasonable. I estimate that his total daycare expenses from the date of separation until he reaches 12 will likely be $86,343.60 (3.5 years x $9,669.60/yr. = $33,843.60 + 7 years x $7,500/yr. = $52,500).

[83] I have no evidence of any further present or anticipated s. 7 expenses, and thus no basis for engaging in a s. 7 analysis of necessity and reasonableness for any other expenses. In her legal submissions, the Applicant speaks of potential camps for the child, but offers no details.

[84] If I divide the $86,343.60 figure by the number of years that Declan will presumptively be entitled to support following separation (16.5 years), the average s. 7 expense over that time (rounded off to the nearest dollar) would be $5,233/yr. I round that figure up to $5,300 per year to account for any inflationary increases in the cost of daycare. That is the appropriate s. 7 figure in light of the request for a lump sum child support payment which, as set out below, I accept.

Issue No. 7: What amount, if any, should the Respondent pay to the Applicant for spousal support?

[85] In Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada recognized that there are three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory; and (3) contractual. The third ground is irrelevant here.

[86] Compensatory support is premised on the notion that some or all of a spouse's entitlement to support may arise out of his or her contributions to the other spouse during their relationship. That contribution may arise out of the roles that the parties assumed. Those roles may confer an advantage on one party (say career enhancement) and a disadvantage to the other (say a spouse giving up, delaying or impairing a career to assume a caregiving role during the relationship). Further a spouse may make a financial contribution to the other's career (such as supporting the spouse through their schooling).

[87] Compensatory support can arise from post-separation roles as much as pre-separation roles. That point is made by Professors Carol Rogerson and Rollie Thompson, authors of the Spousal Support Advisory Guidelines (“SSAG”) at para. 3.3.4:

On the theoretical front, marriages with dependent children raise strong compensatory claims based on the economic disadvantages flowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation.

[italics in original]

[88] The authors add at chapter 3 (a) of the SSAG: Revised User’s Guide (“RUG”) that:

Common markers of compensatory claims include: being home with children full-time or part-time, being a "secondary earner", having primary care of children after separation, moving for the payor's career, supporting the payor's education or training; and working primarily in a family business.

[Emphasis added]

[89] On the other hand, non-compensatory support is based on need and ability to pay. The claim to such support arises out of the relationship itself and the mutual financial interdependence arising from that relationship. A claim to spousal support can arise on this basis even if there is no agreement or claim to compensatory support (see Bracklow, at para. 49). As McLachlin J. wrote in para. 53 of Bracklow:

... [W]here need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

[90] As Professors Rogerson and Thompson, the authors of the SSAG and the RUG note, entitlement is the threshold issue before considering the quantum and duration of spousal support. (See RUG, note 2, ch. 3, p. 5; see also Emerson v. Emerson, [2017] O.J. No. 6199 (C.A.), at para. 103.). In determining entitlement, the court must look to each of the three grounds set out in Bracklow.

[91] Further, entitlement may arise under more than one ground for spousal support: Bracklow, at para. 32. As the authors succinctly explain at ch. 3(d), p. 7 of the RUG:

In many cases there may be entitlement on both bases. For example, in long marriages with children there are often significant elements of both compensatory and non-compensatory support. In the early years, the compensatory element may predominate, but later the non-compensatory claim may come to the fore. [Emphasis in original]

[92] Here, the Applicant seeks support on both a compensatory and non-compensatory basis. She points out that she was always the lower income spouse, that she has always been Declan’s primary caregiver, and that she can be expected to remain in that role until the child reaches adulthood, which is about 14.5 years from now.

[93] I agree with the Applicant that she is entitled to spousal support. While her support entitlement has both compensatory and non-compensatory grounds, her childcare responsibilities of Declan, both before and for a long period of time after separation, are the strongest factor here.

[94] The range of monthly SSAG calculations offered by the Applicant, based on her income of $54,000 per year and the Respondent’s income of $127,307.38 are:

Low: $458

Mid: $957

High $1,459

[95] The duration of support is described in the SSAG calculation “indefinite (unspecified) duration”, with room for review, at a low end of four years and a high end of 17 years.

[96] In the RUG, Professors Rogerson and Thompson look to the SSAG with child formula, the one which applies in this case. They write: "[m]ost initial [with child] orders are 'indefinite (duration not specified)'. Where time limits are set, they tend to be generous, as they should be in light of the strongly compensatory claims": p. 43.

[97] in Fisher v. Fisher, [2008] O.J. No. 39 (Ont. C.A.), Lang J.A. wrote for the Ontario Court of Appeal that there is a "symbiotic relationship between amount and duration" under the SSAG, at para. 109. She quotes from the comment at para. 7.5.1 of the SSAG that they "are interrelated parts of the formula -- they are a package deal." In other words, an increase in one may necessarily require a decrease in the other. Or a decrease in one may require an increase in the other.

[98] Here, I find that spousal support should be paid to the Applicant until Declan turns 18. That is because the Applicant is not only Declan’s primary caregiver. She is the child’s sole caregiver. Based on the evidence presently before me, the Applicant can expect little if any parenting assistance from the Respondent.

[99] The first evidence of notice of the Applicant’s spousal support claim that I have been provided with shows service of the Application on September 1, 2021. Inasmuch as notice is a prerequisite to such a claim, (Kerr v. Baranow 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 208, 210-11 and 216) the duration of spousal support should be September 2021 – May 2037, when Declan turns 18. That works out to 189 months or 15.75 years, more than double the length of the parties’ cohabitation.

[100] The Applicant seeks a quantum of spousal support set in the mid rather than high-range, despite her compensatory claims to support. In doing so, she recognizes the long-term duration of spousal support that she is seeking. But in light of the factors below, I find that the support range should be at or about the low end of the SSAG range. The factors that I rely upon to make that finding are:

a. The duration of support to be paid, relative to the parties’ relationship,

b. the EP award,

c. the fact that it is presently unlikely than any support will be paid that will not come out of the eventual proceeds of sale of the Home,

d. the priority of child support over spousal support: Divorce Act s. 15.3

e. the fact that I find below that support should be paid by way of a lump sum, and

f. the fact that it is presently unknown whether the Respondent will earn the income imputed to him in the foreseeable future.

[101] That being said, as set out below, I will require a further SSAG calculation to fix the exact support figure.

Issue No. 8: Should the support amounts be paid by way of a lump sum?

[102] The Applicant submits that both child and spousal support should be paid as a lump sum. She makes this request in light of the Respondent’s threats not to pay any support, the fact that he has not any paid support since separation, his failure to offer disclosure, and the circumstances of the termination of his employment.

[103] The jurisdiction to award lump sum child support is found in s. 11 of the Child Support Guidelines, which reads as follows:

11 The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments.

[104] The jurisdiction to award lump sum spousal support is found in s. 15.2(1) of the Divorce Act, which reads:

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.

[105] Admittedly, the factors to be considered in regard to the awarding of child and spousal support are somewhat different. Child support is the right of the child, not the parent: Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857, at paras. 14, D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231, para. 38 and 60, Michel v. Graydon at para. 77. Notice plays a different role in the determination of child and spousal support: Kerr v. Baranow at para. 208, Michel v. Graydon at para. 78. There are far few discretionary factors in the determination of child support as opposed to spousal support. Yet there is still a strong overlap in the principles that govern both forms of support. One example of this overlap is found in s. 3.3.2 of the SSAG, which states that income for support purposes is calculated in the same manner for each form of support.

[106] That overlap applies as well to lump sum child and spousal support.

[107] In Mwanri v. Mwanri, 2015 ONCA 843, 2015 CarswellOnt 18511, Cronk J.A. wrote for the Ontario Court of Appeal that both the FLA and the Divorce Act, R.S.C. 1985, s. 3 (2nd Supp.) “afford family law judges a broad discretion to award periodic or lump sum spousal support, or to make an award comprising both forms of support.”

[108] In Davis v. Crawford, 2011 ONCA 294, the Ontario Court of Appeal set out the principles to be considered in regard to lump sum spousal support. Writing for the court, Simmons and Lang J.J.A. set them out as follows:

a. Lump sum awards are not limited to circumstances “where there is a real risk that periodic payments would not be made” or to “very unusual circumstances”: at para. 51;

b. a lump sum award should not be made in the guise of support for the purpose of redistributing asset: para. 60;

c. a lump sum order can be made to, in the words of s. 33(8)(d) of the FLA, “relieve [against] financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home);

d. whether the payor has the ability to make a lump sum payment without undermining the payor’s future self-sufficiency: para. 63;

e. the present and future assets and means of both the support payor and recipient, as well as the payor‘s capacity to pay support: para. 64;

f. “a court considering an award of lump sum spousal support must weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages of making such an order”: para. 66;

g. Advantages of a lump sum award include terminating ongoing contact between spouses, short term marriages, domestic violence, second marriages with no children, “ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support”, “a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.”: para. 67;

h. Disadvantages of a lump sum award include: “the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support” para. 68.

[109] The court lacks the jurisdiction to award lump sum support without first determining the "amount payable" pursuant to the Guidelines: Chamanlall v Chamanlall, [2006] O.J. No. 251 (S.C.J.), at para. 12, Scorgie v. Scorgie, [2006] O.J. No. 225 (S.C.J.), at para. 18.

[110] In considering the Davis v. Crawford factors, the court is once again at a disadvantage caused by the Respondent’s refusal to participate or even offer disclosure to the Applicant or the court. Thus, it is left with the Applicant’s unopposed main argument for the advantage of a lump sum support order: absent such an award, support is unlikely to be paid. It has not been paid since separation. As set out above, the Applicant has even made some post-separation mortgage payments to preserve the Respondent’s equity of the Home.

[111] Conversely, the court has been presented with no evidence of the disadvantages of a lump sum award. It has little evidence of any assets other than the Home and his pension that Respondent may hold that he has not disclosed; whether he has obtained other employment; and whether he has the ability to pay lump sum support other than out of the equity in the Home.

[112] In Segat v. Segat, 2015 ONCA 16, the Court of Appeal for Ontario was faced with circumstances very similar to those in this case. The payor refused to offer disclosure, failed to pay child support, and failed to pay his share of the costs of the matrimonial home.

[113] Here, I accept that any periodic support order which the court makes will likely not be honoured. On the other hand, the court can only balance that finding against merely theoretical disadvantages of a lump sum support order. In weighing those factors, I am guided by a related set of foundational principles. First, this court should not make an order which privileges the interests of a recalcitrant support payor over those of their innocent dependents. Second, it should take all fair, legal, and reasonable steps to ensure that a payor’s legal obligations to their dependents are met.

[114] The court will follow those principles here. It will order lump sum child and spousal support, to be determined as set out below.

Further Divorcemate Calculation

[115] Having made the support findings made above, I still must reduce my findings to a lump sum support order. In order to do so, I will require the Applicant to provide a further SSAG calculation based on the following:

a. Income of the Applicant: $54,000/yr.

b. Income of the Respondent: $127,307/yr.;

c. S. 7 expenses: $5,300/mo.;

d. Child support duration of 16.5 years (till Declan turns 18);

e. Spousal Support duration of 15.75 years (till Declan turns 18).

[116] Once I receive this calculation, I will determine the exact figures to be relied upon and promptly issue an order for lump sum support, accordingly. To be clear, I am not requesting any further submissions and will not accept any without leave.

Issue No 9: Should I grant the Applicant a Divorce?

[117] In her application, the Applicant seeks a divorce. However, I do not have before me the documentation necessary to grant an uncontested divorce. The Applicant is at liberty to move by basket motion for an uncontested divorce, upon the appropriate materials.

Issue No. 10: Costs

[118] I reserve the issue of costs until after I determine the quantum of support issue. While I have a written costs submission in hand, I allow the Applicant’s counsel to revise that submission, if so instructed, in light of my requests for further documentation as set out above. If counsel does not wish to file such a costs submission, I will base my decision on the submissions already filed.

Additional Issue: Charging Order and sale of the Home

[119] In her draft order, the Applicant requests a charging order and terms calling for the sale of the home if the various financial terms she seeks in an order are not paid within 60 days. She did not include those terms in her Application. She did request an order that the Home be partitioned and sold in that pleading, but on the erroneous basis that she is a joint owner.

[120] However, under s. 9(1)(b) of the FLA, the court may order “ security, including a charge on property, be given for the performance of an obligation imposed by the [equalization] order.” The court may further, under s. 9(1)(d)(ii) order that any property be partitioned and sold”, if appropriate to satisfy an obligation imposed by the [equalization] order”. That provision is not limited to matrimonial homes.

[121] Further, under FLA s. 12(a), in an application for an EP, or determination of title between spouses, the court may make an interim or final order restraining the depletion of a spouse’s property. Under s. 12(b) the court may make an order for the “possession, delivering up, safekeeping and preservation of the [other spouse’s] property”. The court may do this when “necessary for the other spouse’s interests under this Part [i.e. Part I if the FLA, “Family Property”].

[122] In LeVan v. LeVan, 2006 CanLII 63733 (ON SC), 2006 CarswellOnt 7334, [2006] O.J. No. 4599 (S.C.J.), affd. 2008 ONCA 388, [2008 O.J. No. 1905 (Ont. C.A.), leave to appeal refused {2008 S.C.C.A. No. 331 (S.C.C), Backhouse J. wrote at para. 20

In family law matters, interim preservation and restraining orders are quite commonly granted to protect the equalization payment claimed. Having already obtained judgment for an equalization payment, the wife is in a stronger position than someone seeking an interim restraining order. Until the equalization payment and lump sum spousal support have been satisfied, the husband should not be free to encumber or sell assets without the wife's consent or further court order.

[123] While it would have been preferable that the Applicant included a request for the particular relief she now seeks in her Application, that relief is a form of enforcement for the relief she did seek and receive – an equalization order. As Grainger J. wrote in Lasch v. Lasch, 1988 CanLII 4581 (ON SC), [1988] O.J. No. 488 (S.C.J.) at para. 12: “[t]he purpose of an order under s. 12 of the Act is to ensure that there are sufficient assets to make an equalization payment once the court determines such payment and makes an order under s. 9 of the [FLA].”

[124] With regard to support, under s. 15.1(4) of the Divorce Act, the court “may impose terms, conditions or restrictions in connection with the [child support] order… as it sees fit.” Under s. 15.2 (1), in making a spousal support order, the court may “make an order requiring a spouse to secure or pay, or to secure and pay” the lump or periodic sums “as the court thinks reasonable”. Section 15.2(3) echoes s. 15.1(4)’s grant of the power to impose terms, conditions or restrictions” regarding a spousal support order.

[125] In Segat v. Segat, above, the Court of Appeal granted an order vesting title in the matrimonial home to the Applicant/support recipient, finding that it was “the only way to satisfy the respondent's obligations to the appellant and for child support.”

[126] Thus, I find that a charging order is appropriate in the circumstances of this case. However, I am not ready to automatically grant the right to sell the matrimonial home without judicial review. Rather, if the payments set out above and/or the lump sum support award that I will grant upon the receipt of a further Divorcemate calculation is not paid within 60 days of this order or a subsequent support order, the Applicant may move before me, on notice, for that relief. Court staff are directed to arrange a hearing for such an order on an expeditious basis.

ORDER

[127] For the reasons set out above, I order:

1. The Respondent's pension shall be divided at source and shall not form a part of his net family property. The sum of $47,161 shall be transferred from the Respondent’s pension to a retirement savings account of the Applicant's choosing. The Respondent's consent and signature are hereby dispensed with for this purpose.

2. The Respondent shall, within 60 days of this Order, pay to the Applicant $227,740.84, consisting of $220,150.70 as an equalization of their net family property, and $7,590.14 for her post-separation property-related expenses.

3. The Applicant is granted a charge on the matrimonial home, located at 121 Glen Echo Drive, Hamilton, ON, L8K 4H9, in the amount of $227,740.84, as security for the payments required under this Order. The amount of the charge will be reviewed upon the determination of the quantum of lump sum support that the Applicant owes to the Respondent.

4. The Respondent is restrained from disposing of or encumbering the matrimonial home in any manner unless on consent or further order of this court.

5. The court shall grant lump sum child and spousal support to the Applicant, payable by the Respondent. In order to determine the amount of those payments, the Applicant will provide a further SSAG calculation, including lump sum calculations, to the court based on the following scenario:

(a) Income of the Applicant: $54,000/yr.

(b) Income of the Respondent: $127,307/yr.;

(c) Section. 7 expenses: $5,300/yr;

(d) Child support duration of 16.5 years (until Declan turns 18);

(e) Spousal Support duration of 15.75 years (until Declan turns 18).

6. The lump sum child support terms to be made may be reviewed upon Declan’s 18th birthday without need for proof of a material change in circumstances. The review may be initiated earlier if Declan attends a post-secondary educational institution prior to his 18th birthday.

7. If the payments set out above and/or the lump sum support award that I will grant upon the receipt of a further Divorcemate calculation are not paid within 60 days of this order or a subsequent support order, the Applicant may move before me, on notice, for that relief. Court staff are directed to arrange a hearing for such an order on an expeditious basis.

8. The Applicant is at liberty to move by basket motion for an uncontested divorce, upon the appropriate materials.

9. The issue of costs of this application is reserved as set out above.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Date: January 3, 2023

CORRECTED: January 9, 2023

[^1]: Kalanuk v. Michelson, [2010] S.J. No. 639 (Sask. Q.B.), where Ball J. stated at para. 14: “[a]lcoholism and drug addiction are viewed as illnesses requiring treatment rather than unacceptable conduct based on individual choice.”