COURT FILE NO.: FS-19-96766

DATE: 2023 12 15

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton ON L6W 4T6

RE:

M.K.- C., Applicant

AND:

C.C., Respondent

BEFORE:

Justice McGee

COUNSEL:

M. K.- C. self-represented applicant in both actions

C.C., self-represented respondent in both actions

BECK, Stephen, OCL Counsel in family action

Table of Contents

Introduction.. 4

Overview and Result 6

Reasons for Decision.. 15

Relevant Financial Background. 15

Credibility. 23

Challenges in the Hearing of this Trial 28

Litigation History. 33

2017 and 2018. 33

Mediation/Arbitration.. 37

First Award: April 7, 2020. 37

Second Award: August 4, 2020. 39

October 24, 2020: C.C. Vacates the Home. 41

The Criminal Charges and the Complaint to the Dental College. 41

Third Award: December 19, 2020. 44

The October 15, 2021- Temporary Order and Its Aftermath.. 48

Finding of Bad Faith - M.K.-C.’s False Statement of Arrears. 50

2022 – RBC Mortgage Enforcement 53

Relevance of the Litigation History. 65

Period of Support Claims: November 1, 2020 to Present 65

Finding of Income for Support Purposes - M.K.-C. 65

Employment Income for Support Purposes - M.K.-C. 66

Analysis. 68

Income as a Beneficiary under a Trust - M.K.-C. 69

Analysis. 72

Reoccurring Gifts as Income. 73

Finding of Income for Support Purposes - C.C. 75

Analysis. 76

Order for Child Support 78

Court Prepared Divorce Mate calculations. 79

Section 7 Expenses. 80

Post Secondary Education Expenses and the RESPs. 84

Spousal Support 85

Equalization. 89

Post Separation Adjustment Claims. 94

No Variation of Share. 98

Costs. 102

Introduction

[1] Ms. M.K.C issued this Application for Divorce on December 17, 2019. She sought the usual determinations arising in most separations: parenting terms, table child support, section 7 expenses, spousal support, the sale of property, possession of the matrimonial home pending the sale of property, an equalization payment, and an Order for divorce.

[2] Mr. C.C. promptly answered the Application, agreeing that they should be divorced, that their five sons, then aged 5 to 17 (now 9 to 21) should remain primarily resident with their mother, that he would pay table child support, that their two joint properties should be sold: a cottage and their Mississauga home, (hereinafter referred to as “the home”;) and that an equalization payment should be made by the party with the higher net family property to the party with a lower net family property.

[3] The parents continued to reside in the same home until C.C. moved out in October 2020. By that time, they had been in a mediation/arbitration process for almost seven months. In the ordinary course, this dispute should have resolved within that process. There was little left to dispute.

[4] Despite their joint incomes and their parents’ generous financial assistance, the parties had lived so far above their means for so long that there was little equity remaining. Their home and their cottage were heavily cross encumbered, and they had no savings of any significance. The RBC held the first of four mortgages on their properties and had served a Writ of Possession in April of 2018.

[5] Their only source of income was C.C.’s dental practise, which in 2020 was significantly diminished as a result of Covid. There was nothing left to fight over. But fight they did. For four terrible years.

[6] From a distance, one might have formed a view that it was a course of mutual destruction. But under the scrutiny of a four-week Trial of both this Application and a related mortgage Claim it soon became apparent that the litigation in both proceedings was primarily being driven by M.K.-C.’s refusal to accept any reduction in her or their sons’ lifestyle.

[7] In the reasons below, I will refer to each of the parents by their first names for readability, with no disrespect or informality of tone intended. All numerical values have been expressed in whole dollars, rounded to the nearest dollar.

[8] Some of the dates within the chronology of events may contain minor factual errors given the breath of the evidence that I received within nearly a thousand pages of documents over the course of this month-long trial. If I have not referenced a fact or event, it is because I did not find it material to an issue that I was required to decide.

[9] To protect the children, I have not used their names, only referring to them in these reasons by birth order. Their full names and birthdays will be required within the final Order and the Support Deduction Order.

Overview and Result

[10] The parties were married on June 12, 1999. They initially disputed their date of separation. In her Application, M.K.-C. asserted a December 31, 2017 date of separation and C.C. pled a December 31, 2018 date. Although the latter was more consistent with the evidence at trial, C.C. conceded to M.K.-C.’s date.

[11] M.K.-C. claims in her Application that she should receive an unequal division of the house sale proceeds because C.C. wilfully depleted their assets during the marriage. She asserts that C.C.’s extravagant spending resulted in cheques to their sons’ private school being returned due to “non-sufficient funds,” and that there was not enough food in the home. She acknowledges in the Important Facts Supporting My Other Claims section of her Application that their creditors were pressing, but she took, and continues to take no responsibility for the state of their finances. Instead, she has advanced various claims, some contradictory, that she is not responsible for their joint debt.

[12] And yet, in the face of their dire financial circumstances, M.K.-C. has vigorously resisted the sale of the home. Her claim for an unequal division was pursued not as a division of sale proceeds, but as a right to possession of the home, free from the second and third mortgagees, the fourth having been discharged from the cottage sale proceeds. Well into the third week of Trial, she continued to blame C.C. for not permitting her mother to take an assignment of the first RBC mortgage which carries a balance of just under a million dollars; while the real impediment was the collateral mortgagees’ absolute opposition.

[13] The second mortgage is held by MIC Financial and has an outstanding balance of over $500,000. The third mortgage (partially reduced by sale proceeds from their cottage) is also held by MIC. It is the subject matter of Court file: CV-21-471 issued in Milton and joined to this proceeding in March 2023 after M.K.-C. counterclaimed against MIC, her former counsel, the mortgage broker, and C.C., claiming that her signature on the last renewal of the mortgage had been fraudulently obtained.

[14] As above, RBC has been in a position to obtain a Writ of Possession since April of 2018. They have been forestalled by Covid suspensions, and from time-to-time they have agreed to defer enforcement. In the past two months the Bank has been actively taking steps to enforce the collection of their mortgage.

[15] Early in the morning of the second day of this joined Trial of both the family law issues and the mortgage claims, M.K.-C. served a Notice of Motion on all the mortgagees asking the court to prevent RBC from exercising a Writ of Possession on the home because she is a victim of C.C.’s coercive control in forcing a sale of her home ”to try to use funds that are not his to pay his debts.”

[16] On the sixth day of Trial, Court file: CV-21-471 was settled on terms that dismissed M.K.-C.’s counterclaims, set judgment and costs at $285,000 and $25,000 respectively, at 15% interest, and required M.K.-C. to deliver vacant possession of the home to MIC no later than January 16, 2024. It is anticipated that RBC will move for possession prior to that date.

[17] On the third last day of Trial, M.K.-C. agreed to list the home for sale. I made a consent Order by separate endorsement for the sale of the home pursuant to the Partition and Sale R.S.O. 1990, c. P.4 and set out a process for the selection of a realtor.

[18] Left for me to decide in these reasons is table child support, section 7 expenses and C.C.’s claim that he has overpaid section 7 expenses, and any post separation adjustments thereon, spousal support, the equalization payment and each party’s claim for an unequal division of sale proceeds.

[19] These financial determinations will inform the distribution of net sale proceeds for the home, assuming that there are net proceeds. The latter is only assured if the home is promptly prepared for sale, and the parties actively collaborate to ensure the best possible price.

[20] Thanks to the exemplary assistance of counsel for the Office of the Children’s Lawyer, the parenting issues are no longer before me because they were resolved on the third day of trial.

[21] The parents agreed to joint decision making for their three minor sons, ages 15, 12 and 9, and a comprehensive parenting schedule structured on a four-week rotation. Included in their lengthy consent were detailed holiday and vacation provisions, and a requirement that the parents attend mediation/parenting coordination should they be unable to make a joint decision.

[22] For the reasons set out below, inclusive of the terms of the parenting consent I make the following Final Orders:

1. The parties shall be jointly responsible for decision making for the three minor children whose names for privacy purposes will not appear in these reasons but may be taken from the pleadings for the purpose of issuing the final Order.

2. Should the parents be unable to agree on a parental decision, they are required to attend a minimum of three sessions with a mediator before returning the matter to court for a determination. The determination shall take the form of a Rule 15 Motion to Change, and the first conference shall be before a Dispute Resolution Officer.

3. The minor children shall have parenting time with each parent in accordance with the October 12, 2023 Minutes of Settlement.

4. As of the date of the release of this Final Order, the temporary Order of Justice Mandhane dated October 29, 2021, the August 4, 2020 Arbitral Award and the temporary Order of Justice Miller dated December 14, 2022 are terminated nunc pro tunc and are fully replaced by the following terms.

5. Any amounts paid in accordance with the two temporary Orders, and the Arbitral Award, primarily being the $9,631 per month ordered on October 29, 2021 shall be a credit to the following Orders:

a. For the months of November and December 2020 the respondent father shall pay child support of $7,402, being two months of $3,701 per month, the table amount for five children on his 2020 income of $153,508.

b. Commencing January 1, 2021 and terminating December 31, 2021, C.C. shall pay child support of $5,245 per month, being the table amount for five children on annual income of $230,690.

c. Commencing January 1, 2022 and terminating December 31, 2022, C.C. shall pay child support of $6,831 per month, being the table amount for five children on annual income of $310,000.

d. Commencing January 1, 2023 until agreed in writing or varied by Court Order, C.C. shall pay child support of $6,871 per month, being the table amount for five children on annual income of $312,000.

e. Support Deduction Order to issue. It is suggested that C.C. obtain legal advice in the proper drafting of the SDO.

6. C.C. shall continue to pay all the younger three sons’ private school tuition until June 2024.

7. Thereafter, the children will cease to attend private school and cannot be further enrolled without the express, written consent of both parents.

8. C.C. shall continue to pay for the tuition of the older two sons until the end of the current school year in April 2024.

9. Commencing May 1, 2024 the parties shall be responsible for the after-tax cost of tuition, transportation, and educational supplies that their adult sons cannot afford in the proportionate shares of 70% for C.C. and 30% for M.K.-C..

10. Neither parent shall be required to make any payment towards the above post secondary education fees until the whole of the RESP funds have been exhausted. The funds shall be released to C.C. and C.C. shall be responsible for paying them directly to the educational facility.

11. If an adult child stays in residence or lives independently while in full time education, the table child support shall end for that child and the parties shall additionally pay their proportionate shares (70% for C.C. and 30% for M.K.-C.) of a reasonable housing allowance for that son, after deducting the son’s own contribution.

12. If the parties cannot agree on the amount of post secondary education costs or housing costs to be proportionately shared, they are encouraged to return to Mediation/Arbitration. Alternatively, they are given leave to schedule a Reference by way of a DRO attendance. If the amount cannot be resolved, the matter may return to me as a long motion.

13. Prior to scheduling a DRO conference, the moving party shall serve a budget for the proposed amount as well as a Case Conference Brief and an Offer to Settle. The budget shall include the net of tax cost of each line item and well as the adult child’s proposed contribution, after application of the RESP funds.

14. But for the above post secondary education expenses, inclusive of housing, no Order is made for any ongoing Section 7 expenses. Any agreement for the payment of a section 7 expense must be obtained at least seven days in advance of the proposed expense and be in writing. If the expense is agreed, it will be paid 70% by C.C. and 30% by M.K.-C..

15. M.K.-C. shall pay to C.C. her proportionate share of the boys’ prior section 7 private school and university costs from January 1, 2021 to December 31, 2023 in the amount of $59,088. This amount shall be paid from M.K.-C.’s one-half share of the house sale proceeds.

16. If a party wishes to argue a variation in the table amount of child support, spousal support, or their proportionate share (i.e. 70% or 30%) of a post secondary expense, including housing, then a Motion to Change must be issued. I am not seized of a Motion to Change.

17. No amount of spousal support shall be payable until July 1^st, 2024. Thereafter, a Motion to Change may be issued to set an amount of spousal support commensurate with a determination of the parent’s proportionate shares of post secondary education expenses.

18. For settlement purposes, the parties have leave to add to the DRO reference the issue of spousal support. Prior to scheduling a conference, the moving party shall serve a current Financial Statement as well as a Case Conference Brief inclusive of the post secondary education issue. If the matter is not resolved, a Motion to Change must be issued.

19. The house has been ordered to be sold by separate Court Order. The net sale proceeds shall be held in trust by the solicitor conducting the sale. The net sale proceeds shall be notionally divided into two equal parts and the amount of $52,393 shall be paid from M.K.-C.’s half to C.C.. The amount of $52,393 is calculated as follows:

a. $59,088, being M.K.-C.’s share of the boys’ private school and post secondary education costs from January 1, 2021 to December 31, 2023, plus

b. $15,000 in a post separation adjustment, plus

c. the repayment of $48,666, less

d. the equalization payment owing to M.K.-C. of $70,361,

20. The balance of sale proceeds shall be held in trust until costs are of this proceeding are agreed or determined.

21. The jointly owned vehicle and any household contents that cannot be moved into M.K.-C. or C.C.’s residences are to be sold and the proceeds divided equally.

22. M.K.-C.’s claim for an unequal division is dismissed.

23. C.C.’s claim for an unequal division is dismissed.

Reasons for Decision

Relevant Financial Background

[23] The parties were already in difficult financial circumstances by mid 2010. To deal with their debt and the mounting interest, they entered into a consolidation mortgage with RBC on December 22, 2010 in the amount of $1,420,000; which at the time, was the assessed value of the home. A number of TD Bank mortgages, a construction lien placed on title by Solda Pools, credit card balances and other consumer debt were discharged with the mortgage proceeds.

[24] The RBC charge amount was supposed to prevent other creditors from registering against title. But as the value of the home increased over the next six years, a second, third and a fourth private mortgage were placed on title. All were joint mortgages negotiated and signed by C.C. and M.K.-C..

[25] The parties took the second mortgage for $380,000 in 2014 to purchase a jointly owned cottage and to again bring them up to date on their consumer debt and C.C.’s taxes. On March 30, 2015 they took a third mortgage for $250,000. Both the second and the third mortgages were interest only. The principle has never been paid down.

[26] The first CRA lien appears on the parcel register on February 27, 2014. C.C. testified that he was only able to maintain the boys’ private school costs by not paying his tax installments. Neither was he able to pay every installment of municipal taxes. He testified that he would spend hours at the kitchen table each month, sorting and deciding which bills to pay.

[27] Further CRA liens were registered on title in 2017 and 2018. On February 27, 2020, Green Planet Home Services secured their judgment on title to the home for $60,000. Interest continues to run on this debt, which both parties confessed during Trial to have forgotten about. Its current balance is approximately $100,000.

[28] In hindsight, multiple factors contributed to the dire state of the parties’ finances, foremost being the normalization of a lifestyle that was never within their means: a grand home, a live-in nanny who transitioned to being a housekeeper, private school for all five sons, the very best of clothing and accessories, lavish entertaining, a pool and a cottage, sports vehicles, and boats.

[29] The parties were able to acquire property, goods, and experiences, but over time, they were not able to maintain them, despite having eight sources of funding:

1. C.C.’s income as a practising dentist

2. M.K.-C.’s income as a corporate manager, a professional fundraiser and most recently as the CEO of Lymphoma Canada

3. Their equity in the home, purchased for $475,000 on October 8, 1998, and valued for $1,900,000 on January 10, 2019

4. Gifts from M.K.-C.’s parents

5. Gifts from C.C.’s parents

6. C.C.’s unpaid personal tax installments

7. Unpaid municipal taxes

8. Credit cards

[30] The downward spiral picked up speed after M.K.-C. lost her employment, purportedly for using a company credit card for personal expenses. C.C.’s parents stopped giving them money. I accept C.C.’s evidence that he did his best to slow the excessive consumer spending, but he was thwarted by M.K.-C.’s refusal to alter their lifestyle. She would not discuss removing the boys from private school. Her personal spending increased.

[31] Circumstances grew unimaginably worse after separation. M.K.-C.’s powerlessness to live within financial limitations and her refusal to sell the home took on epic proportions.

[32] It was learned during Trial that M.K.-C. depleted just over $1,000,000 that was gifted to her by her mother.

[33] Her mother, Rosie Kosta (“Rosie”) testified at some length because there was an issue at Trial as to whether M.K.-C. owned an interest in the Kosta Family Trust (“the Trust”) that should be included in her net family property. The Trust was created in 2010 by Rosie and her husband, who died on September 23, 2021. It primarily consists of two GTA apartment buildings which generate rental income.

[34] I find that M.K.-C. does not have a property interest in the Trust as defined in section 4(1) of the Family Law Act because the terms of the Trust are fully discretionary and M.K.-C. has no power of appointment exercisable in her favour, that is, she cannot affect or pledge its finances.

[35] M.K.-C. does receive regular dividends from the Trust. Although both mother and daughter spoke to the discretionary nature of the advances, it was clear from the corporate tax returns—which were produced for the first time during the second week of trial—that the dividends paid to M.K.-C. prior to separation were distributed to her in a consistent, reliable amount.

[36] The extraordinary extent to which Rosie funded M.K.-C. after separation was unknown until midway through the trial when she testified. Rosie first described how she had always and will always continue to help M.K.-C. and the boys with their expenses. She explained how she gathers some of the receipts for what she has purchased for them or paid to them directly at the end of each taxation year to give to her accountant. He uses the receipts to support the taxable dividend paid to M.K.-C. which historically, hovered around $75,000 per year. The rest of the purchases were treated as gifts.

[37] In the same manner, Rosie has started to issue dividends to the adult grandsons. She did so deliberately in 2020 so that they would qualify for CERB. Additionally, from her own funds she has purchased two cars, one for M.K.-C. and one for a grandson because she no longer drives, and M.K.-C. and the boys take her wherever she needs to go.

[38] Rosie testified in a clear and cogent manner that she considers any funds not disbursed as dividends to be gifts.

[39] Rosie repeated throughout her testimony that since 2021, she has paid for the following either directly, or by giving M.K.-C. or the boys cash or a cheque:

• Dental costs for M.K.-C. and the boys

• Groceries for M.K.-C. and the boys

• Clothes for the boys

• School fees and supplies for the boys

• Gifts for M.K.-C. and the boys

• M.K.-C.’s legal fees

• Trips to Germany for M.K.-C.’s medical treatments

• A Trip to Greece to obtain documents for this proceeding

• RBC mortgage arrears since separation

• Municipal taxes since separation

• M.K.-C.’s furniture leases

• Car repairs to the vehicles that she bought for them

[40] I draw to the reader’s attention information that will be detailed later in these reasons. Through almost all of this period when the million dollars was gifted, M.K.-C. was receiving $9,631 per month in non-taxable support from C.C..

[41] How was Rosie able to afford to gift so much money, given the limited amount disclosed as dividends? It was learned that since May of 2019 Rosie has taken out two mortgages on her home and refinanced her own vehicle.

[42] The first mortgage was originally intended to benefit both M.K.-C. and C.C. by paying down their joint debt. A Promissory Note was drawn to secure an advance that was to be funded by a mortgage on her home. The Promissory Note was signed by M.K.-C. and C.C.. Rosie’s counsel then insisted upon additional terms of security against C.C.’s dental practise. The final terms were not agreed, and the arrangement broke down. No money was every advanced to M.K.-C. and C.C. on the Promissory Note. Instead, Rosie placed the $600,000 that she received from the mortgage on May 31, 2019 into an account in her name.

[43] Before long, Rosie was using those funds to assist M.K.-C.. Rosie believed, or M.K.-C. led her to believe, that C.C. would be partially responsible for the $600,000 because he had signed the Promissory Note. C.C. is not responsible because the monies were not advanced in accordance with the Promissory Note. He received none of the funds. I was not provided with any evidence that funds from the $600,000 were used to pay down joint debt.

[44] By November of 2021 the whole of the $600,000 had been depleted, so Rosie obtained an interest only mortgage on her home from a private lender, “the Butler mortgage” for $240,000. When it came due the following year, M.K.-C. needed more money, so her mother increased the amount and then secured it on her home as a reverse mortgage in the amount of $475,000.

[45] At this point in her evidence, I paused Rosie to make certain that I understood what she was saying and that she understood the consequences to her own financial security. She confirmed that since June 2019, she has encumbered her previously paid for home, which she currents values in the range of $1,300,000, with a $600,000 mortgage and a $475,000 reverse mortgage, and that “99%” of the $1,075,000 was money that went to M.K.-C..” This was in addition to monies paid to M.K.-C. and the adult boys in the form of dividends from the Trust, and gifts to them from her own savings and dividends.

[46] Rosie expressed no concern in having done so, stating that her money was M.K.-C.’s money and that she will continue to give M.K.-C. whatever she needs. M.K.-C. is Rosie’s only surviving child. Her son and husband are predeceased. Throughout her evidence Rosie was competent, alive to the dynamics of the courtroom, and unconcerned as to any financial risks posed to her. She takes a great deal of pride in her ability to provide for her daughter and her five grandsons.

[47] Rosie sees no reason not to give them money, and she testified that “I gave her as much as I could, I know it is not enough, but I do what I can.” She looks forward to moving in with M.K.-C., her housekeeper, and the boys. It is her intention that M.K.-C. receive all her wealth. She expressed how much she was looking forward to selling her home and moving in with M.K.-C..

[48] How is the jointly owned home to pass into M.K.-C.’s sole ownership? C.C. refused Rosie’s earlier offer to purchase the home for approximately 1 million dollars below its market value, so mother and daughter have been working towards a different outcome.

[49] Within the last two months, Rosie has qualified for a $980,000 mortgage. She did not indicate how she was able to do so. She explained that this amount was earmarked to payout the RBC Mortgage provided that C.C. agrees, or alternatively, the court orders it.

[50] Rosie did not understand that C.C. is entitled to the sale of the jointly owned home, and half of any remaining equity in the home. She was unaware that the collateral mortgagees oppose RBC assigning its mortgage to her and that their consent is required for an assignment. Neither was she aware that, earlier in the trial, M.K.-C. had consented to a judgment that permits MIC to obtain vacant possession of the home in January 2024.

[51] Rosie was surprised to learn that I could not order RBC to assign the mortgage to her. She was unaware that Justice Ricchetti had previously dismissed M.K.-C.’s Motion to dispense with C.C.’s consent to assign the RBC mortgage.

[52] M.K.-C. has assured her mother throughout this proceeding that they can all live together in the Mississauga home if she assumes the RBC mortgage, because C.C. is solely responsible for the other mortgages, liens, and judgements on title.

[53] It has been this fundamental misconception that has been driving the litigation, and in my view, has motivated M.K.-C.’s unsubstantiated and conflicting allegations that her name was forged on the third mortgage renewal, or that it was the RBC renewal on which her signature was forged, or that she did not consent to any of the collateral mortgages. At one point during the trial M.K.-C. alleged, without proof, that thirteen renewals had been forged.

[54] During this month-long trial, no evidence was led of a forgery on any of the encumbrances.

Credibility

[55] Credibility and reliability are related but distinct concepts. Reliability speaks to the accuracy of the witness’ ability to accurately observe, recall and recount the events in issue. Credibility centres on a witness’s genuine efforts to tell the truth in a wholesome manner, not leaving out details that could mislead the listener. An honest witness endeavors to tell the truth as they experienced it, acknowledging that some of their perceptions may have been flawed.

[56] One of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness’ oral testimony, but also from things said differently at different times, or from omitting certain events at one time while referring to them on other occasion: R. v. M. (A.), 2014 ONCA 769, 123 OR (3d) 536, at paras. 12-14.

[57] A dishonest witness is not a reliable witness absent corroboration, but it does not automatically follow that a credible witness gives reliable evidence. To provide honest and reliable evidence, a witness must be truthful and alive to their limitations. They must be open to the possibility of alternative perceptions. A credible witness without such insight may inadvertently give unreliable evidence because they are rash, overconfident, or reckless in their pursuit of an outcome.

[58] Ultimately, a court must consider all the relevant factors that go to the believability of the evidence in the factual context of the case.

M.K.-C.

[59] There were significant problems with M.K.-C.’s evidence throughout the Trial. She transparently moulded her evidence and the evidence that she inaccurately attributed to her witnesses around twin narratives: that she bears no responsibility for the parties’ debt and that she, the children, and the housekeeper are entitled to indefinitely occupy the home, irrespective of its ownership. Even her concession on the second last day of trial—that the home had to be listed for sale—was offered in expectation of her mother purchasing the home.

[60] In hindsight, M.K.-C.’s allegations against C.C., her mortgage broker, and her former lawyer track parallel to the efforts of their creditors to sell the home. As the parties’ financial circumstances crumbled, M.K.-C.’s allegations supporting her twin narratives escalated.

[61] As the trial progressed, I found it increasingly difficult to determine which of M.K.-C.’s statements were deliberately misstated and which were cognitive distortions; that is, false statements that M.K.-C. genuinely believes to be true, such as her ability to continue to live at the home without C.C. receiving his equity in the home, provided that RBC assigns the first mortgage to her mother, or that C.C. earned enough income for her and the boys to stay in the home.

[62] I offer three disparate examples.

[63] M.K.-C. pressed the court to allow Mr. David Oswald to give opinion evidence on C.C.’s income despite not delivering a report until the end of the first week of Trial. She was certain that his evidence proved that C.C. earns a million dollars a year. Mr. Oswald testified that he had never spoken to C.C. and worked only on the information provided by M.K.-C. He did not meet the qualifications necessary for expert evidence and to his credit, he had qualified his report to M.K.-C. accordingly. He agreed in cross examination that his analysis was limited, that he did not consider the expenses of the practise, that applying a multiplier to the address book was not an accurate way to calculate gross billings, and that C.C.’s actual gross billings (before expenses) in the range of $600,000 was reasonable.

[64] To evidence her budget for future dental care, M.K.-C. called a dentist from whom she and the boys had received treatment post separation, “Dr. P” [^1]. It was learned during cross examination that M.K.-C. had told Dr. P that she had no financial support from her former spouse, a dentist, and that he had personally caused the damage to her teeth that now required extensive remedial work. M.K.-C. did not tell Dr. P. that she had left C.C.’ dental care in 2017 and that in the interim, she had been treated by another dentist: Dr. I. Dr. P was very surprised to learn this information, which was later confirmed by M.K.-C. in her reply evidence. Dr. P went on to justify her actions on the basis that she only had M.K.-C.’s self-reported history. She recounted how she had provided free dental services, but for cleanings, out of sympathy for M.K.-C.’s circumstances. She confirmed that her proposed dental plan would not be an impediment to M.K.-C.’s employment. Despite this evidence, M.K.-C. continued to assert that she was unable to be employed as a result of her teeth and that C.C. should provide funds for the restorative dental work that she required. (While at the same time that M.K.-C. asserted that she was not making a claim for spousal support.)

[65] M.K.-C. called the realtor who listed and sold their jointly owned cottage to prove that C.C. had deliberately reduced its value, which in turn, had reduced the funds available to pay down joint debt. In answer to her questions the realtor testified that the sale price of the cottage fully reflected its fair market value at the time of its sale, particularly given its “as is” condition. The realtor agreed that the cottage would have sold for more the following year (2021) but that she had been engaged by the parties to sell it immediately. Working with the only Offer that was received during the fall of 2020, it was the realtor’s view that the best possible price had been obtained during the time of the listing. Despite this evidence from her own witness, M.K.-C. continued to assert during the balance of the Trial that C.C. was responsible for selling the cottage below market value.[^2]

[66] Absent corroboration, I find that M.K.-C. was not a credible or a reliable witness. I will offer one more example of M.K.-C.’s lack of credibility and reliability as it may form the basis of a future material change in parenting.

[67] Throughout this proceeding, M.K.-C. has described all five of their sons as suffering from various levels of incapacity and disability. One of their sons does have learning and behavioural challenges which are being well managed. The rest are accomplished, well intentioned young men. The oldest two are in university. Their nanny, Ms. Flores, who is now their housekeeper spoke at length about the boys that she has helped to raise, as did the OCL. Both spoke to the extensive toll on the boys from their parent’s separation. Although Ms. Flores has been drawn in as M.K.-C.’s litigation ally, I accept her heartfelt evidence that she is deeply concerned with the effect of this ongoing conflict on the children, particularly the youngest with whom she shares a special bond.

C.C.

[68] I found C.C.’s evidence to be credible and reliable. He was open to alternative perceptions, was forthright in his evidence, and adjusted his expectations in the face of conflicting information. Although occasionally ingratiating, he did not embellished events in a manner that might mislead. To the contrary, he understated much of the harm caused by M.K.-C.’s overspending, such as the pawning of his jewelry and her $18,000 engagement ring.

Challenges in the Hearing of this Trial

[69] There were extraordinary challenges in the management of this combined Trial of the Divorce Application, the third mortgagee’s Statement of Claim and M.K.-C.’s counterclaim against the mortgagee, the mortgage broker, and her former counsel. I list five examples relevant to my findings on the issues before me and any costs thereon.

[70] The first was the lack of a Continuing Record, a staple of judicial preparation. By demonstration, the pleadings bundle in Caselines contained over 300 documents, not one of which was a pleading. Neither party knew what she or he had pled (their prior counsel(s) having prepared them) or why their pleading was important. Neither had ever updated their pleading.

[71] A second challenge was the lack of a Trial Scheduling Order, and consequently, the lack of a witness list from M.K.-C.. C.C.’s former counsel had prepared a witness list set out in an earlier draft Trial Scheduling Order which C.C. adopted.

[72] On the first day of Trial I organized the parenting issues to first proceed because the OCL clinician had limited availability. I heard each parent’s and the OCL’s Opening Statement in the absence of counsels on the civil claim, then received the evidence of the mother, and her housekeeper, Ms. Flores.

[73] Counsel for the OCL had indicated in his Opening that the three younger sons had given clear and consistent instructions, but that M.K.-C. had refused to attend the OCL disclosure meeting in which those instructions were provided to the parents. Proceedings paused when I learned that the parties’ two oldest sons, ages 21 and 20, were sitting at the back of the Court with Ms. Flores.

[74] Had there been a Trial Scheduling Order the inappropriateness of calling the adult sons as witnesses could have been addressed at an earlier stage. A proposed witness list is required within a draft Trial Scheduling Endorsement. I formed the impression that M.K.-C. intended the older sons to provide evidence of their brother’s views and preferences rather than the OCL.

[75] Because the sons’ participation could not have been addressed at an earlier stage, a voir dire had to be conducted. The evidence heard within the voir dire is to be read into the transcript as a whole. At its conclusion, I ruled that neither of the older two sons could be called as a witness. M.K.-C. had not indicated in her opening address that she was seeking any Order for the proportionate sharing of section 7 expenses, nor was there any relevant evidence on other issues that could not be directly obtained from the parents or the OCL clinician.

[76] Ultimately, the parties agreed on Minutes of Settlement that comprehensively resolved the parenting issues.

[77] I next organized the hearing of the mortgage action and M.K.-C.’s counterclaims against the parties’ mortgage broker and her former counsel. It was then learned that the RBC was in an immediate position to obtain a Writ of Possession. The parties asked for time to have further discussions. Final Minutes of Settlement were achieved. M.K.-C. released her counterclaims, the collateral mortgagee obtained judgment, and agreed to defer possession and sale until January 16, 2024. Judgment on the civil Statement of Claim issued accordingly.

[78] To organize the balance of issues, I requested a draft Order from M.K.-C. and C.C., and I required M.K.-C. to produce her witness list.

[79] M.K.-C. presented a witness list of 41 people, and then added three others. I tried to work through the relevancy of each of her proposed witnesses but was hampered by the lack of a draft Order. At no time has M.K.-C. ever produced a draft Order. This was the third challenge.

[80] Ultimately, I permitted each party to call their case as they saw fit, provided that it was completed within each of their allotted 6 ½ remaining days of evidence, reserving one day for reply evidence and one day for closing submissions. M.K.-C. called 10 witnesses exclusive of Ms. Flores, one of whom was not part of the original 41. C.C. called 6 witnesses, agreeing to narrow his witness list in a series of concessions with respect to net family property values.

[81] The fourth challenge was M.K.-C.’s failure to comply with the timeline for expert evidence. In his case management endorsement of March 7, 2023, Justice Ricchetti set this matter for a September Trial with a timeline requiring expert reports to be produced by May 31, 2023, with responding reports served no later than June 2023.

[82] M.K.-C. included in her witness list a number of proposed experts who were previously unknown, had never delivered a report, or with respect to Mr. Oswald, delivered his report on the Friday evening of the first week of Trial. M.K.-C. argued that trial fairness and the integrity of the proceeding turned on her ability to call her expert witnesses. She blamed her failure to abide by the timeline on C.C..

[83] In the end, it was not necessary to decide M.K.-C.’s unarticulated motion to permit her to late serve expert reports because a review of the proposed reports revealed that none provided opinion evidence in the manner that M.K.-C. had represented. At their highest, each was a preliminary engagement letter, or a will say of a participation expert.

[84] Westerhof v. Gee, 2015 ONCA 206, 124 OR (3d) 721, distinguishes a participation expert from a litigation expert. The latter are experts retained for the express purpose of the litigation and must comply with the enhanced rules for experts. M.K.-C.’s experts had been retained to review only the information that she had curated and drawn from her understanding of the evidence.

[85] C.C. continued with his previously proposed list of eight witnesses and was granted one additional witness given M.K.-C.’s addition of their real estate agent on the sale of the cottage. C.C.’s expert witnesses had all served reports well within the timelines. Each met the criteria to be a litigation expert.

[86] The fifth challenge was the parties’ belief that a document uploaded to Caselines was a document accepted as a Trial Exhibit. By the end of the trial, over two thousand documents had been uploaded to Caselines, and very few of that number had been previously filed in the court file. Prior to trial, no documents had been agreed to be admissible.

[87] I am deeply indebted to court staff, particularly my registrar who diligently and patiently worked through the organization of the exhibits, one by one, day by day, as I heard argument and ruled on each document for which there was an objection. Their dedicated professionalism is the core of effective court services. Specialized court staff are integral to the management of a trial of this complexity between self represented persons.

[88] Returning to the third challenge, I cannot understate the frustration of court processes when the Order being sought is unknown. M.K.-C. did not ask for any Orders in her Opening Statement. Her Closing Statement did not express an Order available in law. In contrast, C.C. was able to identify the areas to be determined and the correct methodology, but he had no calculations informing the actual amounts of support sought or the appropriate equalization payment.

[89] I provided the parties with directions, the relevant statutes and I explained both support and equalization in a neutral manner to the best of my ability throughout the Trial. It was my sincere intention to be even handed, but I acknowledge that more time was spent giving assistance to M.K.-C.. She was entirely unprepared for Trial, having not turned her mind to any outcome but for her continued possession of the home.

[90] How did this get to a four-week Trial? The litigation outcomes require an understanding of the litigation history. Although all events are listed, I have only summarized the aspects relevant to my reasons herein and the anticipated costs claim.

Litigation History

2017 and 2018

[91] On April 27, 2018, RBC issued the first Notice of Sale for the home. Trial exhibits show that in May 2018 the parties were in arrears on the first mortgage with RBC, had an outstanding RBC Visa balance, and two RBC lines of credit.

[92] In 2018 M.K.-C. pawned her engagement ring purchased in 1999 for $18,000. She received $2,000. In 2019 she pawned $4,000 worth of C.C.’ jewelry to pay for an extravagant birthday party for one of the children at Medieval Times. She acknowledged having done so in her Reply and her evidence at trial, citing necessity.

[93] On November 29, 2018, Capital One issued a claim against C.C. for a credit card applied for and taken out by M.K.-C.. M.K.-C. did not contest C.C.’s evidence that he did not know about the card until it went into collection. She confirmed that she had filled in the application, stated his income at $185,000 and signed his name. She justified her actions as necessary to the needs of the family.

2019

[94] On December 17, 2019, M.K.-C. issued this Application. She claimed an unequal division of sale proceeds. Her November 11, 2019 Financial Statement (one of only three served in this four year long proceeding) shows $238,262.50 of income, inclusive of an RRSP withdrawal. She did not produce her full Income Tax Return, so I cannot see the portion that was her employment income. She estimated $568,200 of annual, net of tax expenses in her sworn Form 13.1 which she stated were paid by C.C.. C.C. denied ever paying expenses in this amount.

[95] Her November 11, 2019 Financial Statement fully sets out the half value of the joint debts registered on title to the home on the date of separation, with the following annotations:

Matrimonial Home Royal Bank $470,000

Private mortgage C.C. Taxes $175,000

Mortgage Cottage Home Trust $187,500

Mortgage Cottage Private $100,000

[96] M.K.-C. also lists her credit card debt of $14,000, and a post separation loan from her parents of $125,000.

[97] On February 21, 2020, C.C. served his Answer. In support of his claim for an unequal division and/or costs he pled the following facts which I find were made out at Trial:

a) The parties lived beyond their means throughout their marriage resulting in multiple lawsuits: two in 2015, one in 2018, and two in 2019; one of which is the Green Planet Judgment.

b) C.C. tried many times to slow M.K.-C.’s spending. They attended marriage counselling in 2015. The counsellor made it clear that C.C.’ income alone could not maintain their lifestyle, and that drastic cuts to their spending had to be implemented immediately.

c) M.K.-C.’s spending continued and escalated. She purchased expensive cellphones for the children and a vehicle for a 17-year-old son, then looked to C.C. or her mother to pay for it.

d) M.K.-C. entered into Lease agreements dated January 5, 2017, March 14, 2018, April 12, 2018, April 29, 2018, and July 5, 2018 for electronics and high-end furniture which she asked to be put through the dental practise as expenses but are now being paid by her mother. The items leased include a marble sideboard, crystal chandelier, gilded mirror from France, ends tables and an iron chandelier.

e) C.C. took to hiding his cheque books, his car keys, and his possessions from M.K.-C. so that she could not spend money or pawn his valuables. In cross examination she acknowledged that she had done so. She justified the expenses as necessary to a family of seven and selfless, as she only purchases items for the home and the family, unlike C.C., who spends money on himself.

f) On February 5 and 16, 2020, M.K.-C. filed reports with Peel Regional Police with different assertions of criminal conduct. No charges were laid.

[98] C.C.’s January 24, 2020 Financial Statement (one of six filed in the proceeding) stated his taxable income of $180,000 and annual expenses of $531,240. This amount primarily consisted of $17,007 monthly payments on the home (the RBC mortgage and interest payments on the private mortgage and the cottage mortgages) and $8,333 per month in private school tuition.

[99] C.C. provided more exact figures on the date of separation debts – based on his December 31, 2018 date of separation:

Matrimonial Home Royal Bank $495,243.51

Private mortgage MIC Financial $346,000

Mortgage Cottage Home Trust $139,000

Outstanding CRA Taxes $234,507.60

Six outstanding Judgments $ 97,853

[100] M.K.-C. filed her lengthy Reply at the beginning of March 2020. It did not dispute any of the debt figures. She acknowledges in her Reply that C.C. pays $79,000 a year for the boys’ private school tuition. Her focus in the 43 paragraph Reply was that none of the parties’ financial circumstances were her fault.

[101] Because the pleadings were never uploaded to Caselines, I did not read the Reply until the decision was under reserve and I requested the electronic court file. I found it remarkably prescient. Within the Reply—which appears to have been personally drafted—it is clear how important it is to M.K.-C. to not be responsible for their financial ruin.

[102] M.K.-C. states near the end of her Reply that if there is more debt on the home than equity, then it must be “due to the respondent’s financial recklessness and neglect.” She writes that while C.C. “accrued massive tax debts year over year, he withdrew more and more financial support from [her] and the children, forcing [her] to acquire more debt to cover household and children’s expenses.”

[103] I focus on this early crossroads because it is the foundation of all that subsequently passed. It is essential to M.K.-C. that she be understood as a devoted mother who has dedicated herself to the service of her disabled and troubled sons. At every instance she evokes the powerful image of an abused wife and mother who has lost her purchase on the life that she and her children so richly deserve.

Mediation/Arbitration

[104] The March 2020 Court suspension of services took hold before a Case Conference could be scheduled, and the parties wisely made the chose to enter into mediation/arbitration. In an Agreement signed March 31, 2020, they agreed to mediate parenting, income for support purposes, child support, section 7 expenses, spousal support, the disposition of the matrimonial home, the sale of the home, the payment of debt and equalization. To be arbitrated were the issues of disclosure, scheduling, temporary parenting, Covid protocols and temporary financial arrangements.

First Award: April 7, 2020

[105] Both parties were represented at the Arbitration by senior counsel. The process moved quickly. In a consent Award dated April 7, 2020 (“the First Award”) the parties agreed to a form of nesting, and to “determine the best way to continue to employ their live-in nanny,” while minimizing the costs of her employment. The way turned out to be a reduction in salary commensurate with her receipt of CERB.

[106] The First Award recognized that there was not enough money to cover the families’ expenses. With the Covid shutdown, C.C. had lost his income which was the only remaining financial support for the family but for the grandparents’ largess. M.K.-C. and C.C.’s debt capacity had been long exhausted. They had no savings. The only good news was that the Banks were not permitted to enforce Writs of Possession, and many lenders were prepared to accept reduced or missed payments.

[107] I set out paragraph 4 of the First Award in some detail as it has been distorted by M.K.-C. throughout this proceeding—even during trial—as requiring C.C. to maintain the RBC mortgage, which by then had grown to approximately $1,000,000. What the consent clearly set out, was that:

“During the Covid-10 pandemic, payment of the family’s expenses shall be prioritized as follows, to the extent possible, with C.C. paying (a) through (f) and M.K.-C. paying (g) through (i.)”

[108] C.C.’s responsibilities were listed as groceries, the “mortgage(s) as required’ on the home, referring his efforts to negotiate missed payments; the housekeeper’s salary, utilities, auto expenses and uninsured medication for the children. In addition, C.C. was to transfer $100 a week to M.K.-C. for her personal spending. M.K.-C. has since deposed in affidavits that C.C. was ordered to pay the mortgage, failed to do so and only gave her $100 a week in support.

[109] M.K.-C. was responsible for her own uninsured medication in the Award and the children’s eye care expenses, the children’s online educational resources and $400 a month in lease payments for the new bathroom and kitchen fixtures that she had ordered.

[110] The parties agreed to sell the cottage to reduce their debt.

Second Award: August 4, 2020

[111] The stresses of living together in the home during Covid took their toll. The Arbitrator writes at paragraph 4 in the introduction to the Second Award that,

While there is not much that the Husband and Wife agree upon, it is acknowledged by counsel for both sides, the parties’ financial affairs are in disarray and this family has been in economic crisis for some time and the fallout from the continuing pandemic, and the uncertainty that it poses for the future exacerbated the parties’ financial difficulties.”

[112] The Arbitrator then sets out the facts that informed his award, now familiar to the reader:

• the home and the cottage are heavily encumbered,

• C.C. had not paid income taxes for many years and there was a significant debt owing to CRA

• There is a lien against the home

• There are significant other creditors, including leaseholders who furnished various items for the home

• The parties blame each other for prolific and unreasonable spending

• Despite the debt load, and the loss of each parties’ income, all four of the younger children remain in private school with the oldest set to start university with limited funding

[113] The Second Award is carefully written with detailed reasons on the three motions. The Arbitrator first concludes that he does not have jurisdiction to decide the Award sought by M.K.-C. for exclusive possession of the home; and second, he declines M.K.-C.’s request to vacate the nesting provisions agreed to by the parties in the First Award, but for a minor change to the use of the main bedroom.

[114] The third Award sought by M.K.-C. was for a payment of spousal support. The Arbitrator discussed C.C.’s decline in income and ultimately, imputed the amount of $150,000 earlier noting that “even if it is $187,000, $200,000 or something within a reasonable range of those amounts, there is simply not enough income to pay for all this family’s considerable expenses,” which included the ongoing cost of the live-in nanny/housekeeper.

[115] The Arbitrator imputed $24,000 of income to M.K.-C., declining to find that she was intentionally unemployed as argued by C.C.’s counsel. M.K.-C. did not disclose to the Arbitrator her receipt of dividends from the Trust, or the monies that she was receiving from her mother. This is a critical fact in my decision to set aside his award of spousal support that was later converted to a Court Order by Justice Miller.

[116] The Arbitrator temporarily awarded, in addition to the production of disclosure by each party that:

a. M.K.-C. is to purchase groceries for the home in the amount of approximately $600 per week.

b. While M.K.-C. receives CERB, C.C. shall pay her $2,750 per month in spousal support, retroactive to August 1, 2020.

c. In the event that M.K.-C. no longer receives CERB, C.C. shall pay her $4,540 per month.

d. C.C. shall continue to pay items 4(b) to (f) in the First Award “to the extent possible,” while attempting to work out arrangements such that he is not required to pay for all amounts in respect of the first or second mortgages.

October 24, 2020: C.C. Vacates the Home

[117] The situation in the home deteriorated. By October 2020, it had become intolerable. To protect the boys from the constant arguing within the home C.C. made the decision to quietly rent a bungalow down the street.

[118] He did not tell M.K.-C. that he was moving out until it was his weekend with the boys.

The Criminal Charges and the Complaint to the Dental College

[119] Three days later, on October 27, 2020 the police attended C.C.’s new residence and arrested him on three historical allegations of assault with a weapon and one charge of common assault, based on information given by M.K.-C.. He was placed on an Undertaking with strict terms not to communicate directly or indirectly with M.K.-C. except through Our Family Wizard or through counsel. He could not attend the home or anywhere that M.K.-C. was known to be, or ought to be, except for the purpose of exchanging the children.

[120] C.C. was required to report the criminal charges to his College. He had no prior history of any police involvement.

[121] On November 20, 2020 C.C. received a Registrar’s Endorsement from the Royal College of Dental Surgeons of Ontario that an investigator had been appointed to gather all relevant records, witness statements and documents to investigate allegations of sexual abuse of a staff member and a patient.

[122] The investigation was initiated by M.K.-C.’s on-line complaint submitted to the College during the evening of October 24, 2020, the day that C.C. left the home. M.K.-C. set out 45 allegations organized into six areas of misconduct: that he had neglected their children’s dental care, that he has been physically abusive to her, that he has carried on a string of patient relationships, that he erases patient files for those who pay cash, that he fraudulently bills insurance companies, and that he ignores Covid safety protocols.

[123] The criminal charges were withdrawn by the Crown on January 28, 2022. M.K.-C. then made a further report to the police that he had committed fraud. That charge is still in process. The investigation by the College is ongoing. C.C. describes it as a devastating process that continues to place a cloud on his reputation. The fact of an investigation must be posted on his College website.

[124] C.C. quipped that regulatory lawyers are more expensive than family law lawyers. Because he retains counsel in the College proceeding and on the criminal charges, he has not been able to maintain his family law retainer.

[125] I cannot make findings regarding the criminal or the College proceeding, but I will reflect the following;

a. Certain of the October 24, 2020 allegations made by M.K.-C. to the College are demonstrably false, such as her allegation that C.C. has neglected their children’s dental care, or that as a separate allegation, that the children had reported their father to the police. M.K.-C. called two dentists to give evidence with regard to her dental care, and both spoke to the boys’ care in terms of the usual and regular routines. There was no evidence that the boys ever reported their father to the police.

b. M.K.-C.’s assertions that her spouse had left her “toothless for years,” that he broke an implant, was trying to “permanently disable” her and “keep her in pain” appear for the first time in this on-line complaint sent the same day that C.C. left the home. They do not appear in her Application, her lengthy Reply or her submissions to the Arbitrator.

c. It is fair to say that M.K.-C.’s evidence at Trial was preoccupied by a belief that she cannot work because of her teeth, an assertion denied by both her treating dentist and dental surgeon, whom she called to testify. Both had been led to believe by M.K.-C. that no one else had ever provided dental care to her, but for her husband. Both were surprised to learn otherwise, although the surgeon indicated that he may have known that she had seen another dentist. Both agreed that her failure to follow up after prior temporary procedures, and a pattern of missed visits could explain much of her current dental health. Neither identified the work to be done as interfering with her ability to work.

Third Award: December 19, 2020

[126] M.K.-C. took the position that the boys could not stay overnight at C.C.’s new home. With the Undertaking in place, C.C. could not attend the home to pick them up, or to speak with M.K.-C.. C.C. asked the Arbitrator to award a parenting schedule that continued the prior shared parenting in the home, and on an urgent basis, to fix a Christmas Schedule.

[127] M.K.-C. countered with a motion to remove the Arbitrator. Her allegations against the Arbitrator were of such force, that the Arbitrator set out a lengthy history of his involvement and all communications between him and the parties as well as his reasons as to why M.K.-C. had not met the onus of establishing a reasonable apprehension of bias. He declined her request that he resign.

[128] The Arbitrator did make an award for Christmas access, but the boys never saw their father that season. A term of the Order was that “the parent who has the children shall drop them off at the home of the parent who is to have the children.” M.K.-C. refused to do so, citing discomfort because she had seen a woman at C.C.’s residence. The bail conditions prevented C.C. from attending the home or contacting M.K.-C..

[129] On April 8, 2021 the Arbitrator released his decision for costs on the Third Award. M.K.-C. was ordered to pay costs of $3,800 in a series of installments. She did not do so until the Award was later turned into an Order and enforced through the FRO.

2021: The Proceeding Returns to the Superior Court of Justice

[130] M.K.-C. continued to refuse to drop the boys off at their father’s rental home. At Trial, she claimed that he chose not to see them and she asserted that he could have come by the house any time. At one point she suggested that he could even have come for dinner. I could not detect any malice in her assertions and am left to conclude that she has distorted her past actions to accord with her view of herself as a good mother who would never deny access. Nonetheless, the boys did not see their father.

[131] M.K.-C. tendered an email from an involved police officer in support of her assertion that C.C. could have come to the home to pick up the children. The email was entered as an exhibit. It states that C.C. could be charged if he attended the home. I endeavored to impress M.K.-C. with the reality that C.C. could not and cannot attend the home.

[132] The following is a sum M.K.-C. of the motions and conferences heard from January to October 2021.

January 25, 2021 C.C. brought an urgent motion before the court for parenting time. Justice Barnes granted M.K.-C.’s request for an adjournment, but provided that in the interim, C.C. would pick up the children from school every Friday and would drop them off by 2:00 pm on Sundays.

February 9, 2021 The Third Mortgagor issued a Statement of Claim for payment of $277,019, possession of the mortgaged premises (the home), and the appointment of a receiver of the collateral security on C.C.’s dental practise.

February 25, 2021 C.C.’s motion returned, and Justice Barnes granted M.K.-C.’s second request for an adjournment, set a litigation timetable, and continued his prior Order for pick up and drop off of the children every weekend.

March 26, 2021 The Motion returned for a third time, C.C. asked for a more detailed parenting schedule based on a two-week rotation, and in light of the Statement of Claim, for a timeline to set a motion for partition and sale of the home. The motion was adjourned to a Case Conference.

May 28, 2021 Justice Ricchetti conducted the Case Conference, noting M.K.-C.’s opposition to the sale and her assertion that the mortgage was not valid, or alternatively that she was not responsible for it. He sets out his concern that enforcement proceedings may result in a reduction of the equity available to the parties as well as expose them to a significant damage claim. He identified that the issue as a priority. Also canvassed was a disclosure Order, questioning and parenting terms. The assistance of the OCL was requested.

A timetable was set for a long motion to be heard on August 9, 2021. The hearing would determine the sale of the home and M.K.-C.’s Notice of Motion for table child support and section 7 expenses served May 26, 2021, two days prior to the Conference.

July 7, 2021 Justice Ricchetti again met with the parties to assess the state of the disclosure, make further procedural Orders, and confirm the Order being sought at the long motion.

August 9, 2021 Each party sought an adjournment of the August 9, 2021 motion citing lack of disclosure by the other party. Further procedural Orders were made.

October 15, 2021 Justice Mandhane heard the long motion. In reasons released October 29, 2021, she ordered on a temporary basis, starting November 15, 2021 that:

a. C.C. was to pay monthly table child support of $6,631 for five children based on imputed income of $300,000 per annum.

b. C.C. was to continue to pay the children’s expenses for their private school and/or post secondary education.

c. C.C. was to pay an additional $3,000 a month as a contribution to the children’s other section 7 expenses.

d. C.C. was to pay spousal support at the mid range based on findings of imputed income of $300,000 to him and $100,000 to M.K.-C.. (It was subsequently found that there was no range.)

The October 15, 2021- Temporary Order and Its Aftermath

[133] A temporary Order is a holding Order. It is based on an incomplete record and does not bind a Trial judge. Any amounts paid pursuant to a temporary Order are a credit to the final Order.

[134] The motions judge relied on the following allegations which were not made out at Trial:

a. The father left the home in October 2020 after being charged with assaulting the mother.

b. All five of the children have identified special needs and disabilities that require educational accommodation, and each child benefits from ongoing therapeutic support.

c. The children have $6,000 per month in special expenses, in addition to their education expenses.

d. The father is a cosmetic dentist who enjoys a luxurious lifestyle and extravagant spending.

[135] Even so, the motions judge rejected M.K.-C.’s assertion that C.C. earned $500,000 per year, cautioning that, “it is abundantly clear that the parties lived way beyond their means for years. They are now in dire financial straits precisely because their spending patterns and lifestyle do not match their financial means.”

[136] The Motions Judge ordered that C.C. pay the children’s educational expenses, because:

“in the short term at least, it is important to maintain some stability in the children’s academic and social lives, pending final resolution of the parent’s financial issues. It is likely that the children will be moving out of their childhood home soon and it will be too disruptive to change their home and schools in the same year. “

[137] In the following paragraph, the motions judge writes:

The Father shall also contribute a lump sum of $3,000 per month towards the children’s health, medical and other expenses. This is based on the estimate set out in the Mother’s most recent Financial Statement.

[138] Justice Mandhane declined C.C.’s motion to order the sale of the home given the concurrent civil proceedings in which M.K.-C. alleged fraud and forgery of her renewal of the collateral mortgage.

[139] At Trial, M.K.-C. failed to evidence the claimed $6,000 of section 7 expenses a month. To the contrary, Rosie Kosta testified that she pays for the boys’ dental care (which Dr. P stated was limited to cleanings), optical expenses, and glasses; none of which have been presented to me in the form of a budget, or in an amount that would exceed more than a few thousand dollars in a year for all five sons.

[140] C.C. has complied with the October 29, 2021 Order. He is not in arrears. He also paid the amount of $30,000 in costs because the Motions Judge found M.K.-C. to have been the more successful party and C.C. to have been unreasonable in seeking the sale of the home.

[141] To meet his financial obligations under the October 29, 2021 Order, C.C. gave up his independent accommodation and moved in with his elderly parents. He has and continues to borrow from them to meet his obligations.

[142] Three amounts must be determined or adjusted from the temporary Order:

a. The table amount must reflect a year-by-year assessment of income.

b. The $3,000 per month ($78,000 up to December 31, 2023) was wholly unsubstantiated at Trial. It must be remitted to C.C. as a credit against ongoing support.

c. M.K.-C.’s proportionate share of the children’s educational expenses must be calculated.

Finding of Bad Faith - M.K.-C.’s False Statement of Arrears

[143] The Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 permits a support recipient to enforce a payor’s proportionate share of a section 7 expense that has been ordered to be paid. The share is identified in a sworn Statement of Arrears that sets out the ordered expense(s) and calculates the proportionate share.

[144] The October 29, 2021 Order does not on its face set out the proportionate shares; but having imputed income of $300,000 and $100,000 to the parties, it is easily calculated as 66.5% and 33.5 % respectively. Neither does the Order include a term that C.C.’s proportionate share of section 7 expenses in excess of $3,000 per month be enforced. To the contrary, Justice Mandhane writes at paragraph 23 that:

I refuse to order proportionate sharing of expenses because this will not create the appropriate incentive for the parents to decrease their overall spending. Going forward, hard choices will need to be made…It may be that the family can no longer afford a full-time nanny as well as private education for their younger children.

[145] In breach of the Order, M.K.-C. deposed a series of Statement of Arrears after release of the decision to enforce section 7 amounts additional to the $3,000 a month. A review of the FRO account filed at Trial shows that M.K.-C. submitted nine such Statements in amounts from $950 to $4,200. Moreover, the amounts were for the full amount, not C.C.’s proportionate share (66.5%) and include:

a. $950 in tuition to Kings Christian School that had been paid a significant time prior to the October 29, 2021 Order ( effective November 15, 2021. )

b. $4,200 in tuition fees to Rotherglen School at a time that none were owing. The claimed amount of $4,200 was actually a credit resulting from payments made in August 2021.

c. A series of receipts for moneys paid to “A. Flores Support Worker Educational Assistant” with a “Re” lines setting out “Online learning/support/tutoring/educational/virtual learning program from Rotherglen. As stated earlier in these reasons, Ms. Flores is the parties’ former nanny, whom M.K.-C. has kept on as a housekeeper since separation. In no manner is she a qualified educational support worker. Ms. Flores testified that she signed the receipts which M.K.-C. had prepared. There was no credible evidence that Ms. Flores was paid anything in addition to her salary, which the parties had reduced commensurate with Ms. Flores’ receipt of CERB.

d. Tutoring charges by a student unknown to the father, purportedly paid by M.K.-C. in cash. The amount was not proven.

e. Louis Vuitton and Gucci glasses for the boys invoiced January 22, 2021.

f. 2020 Dental fees for the boys paid for by their grandmother.

g. 2020 Optical check-ups.

[146] C.C. did not learn about these charges until the FRO diverted insurance payments to his dental practise, being his payment for patient services. It had an immediate effect on his ability to operate his practise. It took extensive efforts by C.C.’s counsel to have them reversed.

[147] The examples set out in (a) to (c) above were demonstrably false claims. None of the examples were permitted within the October 29, 2023 Order. Any section 7 expenses, but for educational costs which C.C. alone was to temporarily pay were capped in the amount of $3,000. M.K.-C. was questioned at Trial about these expenses and her answers were not credible.

[148] In S. (C.) v. S. (M.) (2007), 38 R.F.L., Justice Perkins held that bad faith encompasses behaviour shown to be carried out with intent to inflict financial or emotional harm on the other party, to conceal information relevant to the issues; or to deceive the other party or the court. The essence of bad faith is when a person suggests that their actions are aimed for one purpose when they are aimed for another purpose.

[149] While I can accept some level of misadventure in M.K.-C.’s litigation conduct, I find that this sustained effort to obtain additional monies from C.C. was deliberately undertaken for an improper purpose. The filing of false Statements of Arrears, in breach of the October 29, 2021 Order crossed the line into bad faith conduct. I make a finding that M.K.-C. acted in bad faith pursuant to Rule 24(8) FLR.

2022 – RBC Mortgage Enforcement

[150] Having defeated C.C.’s motion for the sale of the home, M.K.-C. made a series of requests to the RBC for the amount of arrears outstanding on the first mortgage. RBC letters in response dated January 26, 2022, April 13, 2022, April 14, 2022, and November 17, 2022 were never received by C.C., despite the fact that he was the joint mortgage holder. He saw the letter for the first time when M.K.-C. tendered them as exhibits at Trial. The letters were either mailed to the home, where C.C. could not attend pursuant to his bail conditions or emailed to M.K.-C.. She did not copy the letters to C.C..

[151] M.K.-C.’s purpose in tendering the letters during the Trial was unclear. She did not indicate that she used the monthly amount of $9,631 to pay the mortgage, or any house related expenses. Instead, she communicated directly with RBC to ascertain the amount necessary to bring the mortgage in good standing, which I am asked to assume was to be paid by her mother, Rosie Kosta.

[152] Ms. Kosta testified that she paid the mortgage for M.K.-C., but she did not provide any specifics. The documentation was unclear, and I remain uncertain of what amounts in arrears and costs were paid by Rosie to keep RBC from seizing the home. I accept that some amounts were paid, and that these amounts total at least $60,000.

[153] The November 17, 2022 RBC letter sheds some light on the status of the first mortgagor moving for possession and sale. Counsel for RBC writes that the priority claims of municipal tax arrears and CRA arrears registered on title had to be first discharged before the RBC mortgage could be brought into good standing. In 2022 each of the parties had significant CRA tax arrears registered on title.

[154] As a concession, RBC counsel advised that they were willing to defer sale proceedings until April 30, 2023 provided that:

a. $115,151.63[^3] was paid by December 17, 2022, and

b. the mortgage payments were maintained thereafter.

c. There was a valid fire insurance policy on the home.

[155] The concession provided an additional five months for the CRA and the municipal taxes to be discharged. If the mortgage was not in good standing by April 30, 2023, legal action would be taken without further notice.

[156] I was advised at Trial that the outstanding balance of the RBC mortgage remains in the range of $860,000. The municipal and CRA arrears have not been discharged. RBC is able to obtain a Writ of Possession. Notice has been served on all adults residing in the home, including the two older sons.

2022- 2023 Litigation

[157] The following is a sum M.K.-C. of the litigation events from April 2022 until Trial:

April 1, 2022 The Settlement Conference did not proceed because the assigned Justice determined that they were not ready. A timetable was set for the exchange of an Affidavit of Documents, Questioning and a February 1, 2023 long motion. A combined Settlement and Trial Management Conference was to be then scheduled.

May 21, 2022 M.K.-C., now self represented, filed a lengthy, ex-parte Notice of Motion asking to enforce the Arbitral Award from August 4, 2020, for a $30,000 lump sum for “immediate property tax, medical and household needs” and for an Order preserving C.C.’s vehicles and boats and the transfer of household utility accounts to her name. She sets out only that the parties attended arbitration and received an Award which she describes as being in breach. She does not advise the Court of the October 29, 2021 Order or her receipt of $9,631 per month.

M.K.-C. makes a number of statements not proven at Trial and four demonstrably false statements: that RBC can now foreclose on the home because “C.C. will not allow her to transfer the mortgage payment to her account,” that “he is charged a fee every month when he bounces the mortgage payment,” that C.C. is $17,000 in arrears to FRO and he faces “13 counts of fraud over $5,000 as well as 13 counts of Uttering false documents.”

Justice Shaw required that the motion be served and placed on a regular motion list. Because M.K.-C. did not indicate that there had been any prior litigation, Justice Shaw further endorsed that the presiding judge would first determine whether the motion should be heard before a Case Conference. [^4] There is no indication in the file that M.K.-C. ever served C.C. with the motion.

August 18, 2022 M.K.-C. brought another ex-parte motion, asking for C.C. to pay the Alectra (electricity) bill and to have the account placed in her name. Again, she provided no ligation history. Justice Trimble rejected the motion and required it to be served.

August 29, 2022 M.K.-C. brought another ex-parte motion, naming Justice Mandhane as the case management judge, asking for Orders that tutoring expenses be classified as education expenses that C.C. is required to pay, that the $4,200 payable to Rotherglen be ordered to be paid and that the $950 for Kings Christian School be paid.

This motion seems to follow on the FRO’s correction/removal of amounts claimed by M.K.-C. earlier in the year. I could not find an endorsement in the file, but it appears that the motion was not granted. I did locate a September 28, 2022 endorsement from Justice Mandhane directing M.K.-C. to cease emailing her without copying C.C..

September 15, 2022 M.K.-C. brought her fourth ex-parte motion for an Order for RBC to assign first position of the mortgage to Rosie upon payment of the outstanding amount and for disclosure requests. Again, I could find no endorsement on this motion, but no Order appears to have been made.

September 20, 2022 M.K.-C. served a motion to enforce the Arbitral Awards of April 13, 2020, August 8, 2020, and December 19, 2020. Justice Bloom set the motion to December 14, 2022.

October 11, 2022 Having just learned of the August Motion without Notice (which had been filed as Form 14 and not 14B), counsel for C.C. asked that it be dismissed with costs of $2,000. I could find no endorsement on this motion.

December 14, 2022 Justice Miller gave lengthy reasons supporting her decision to make each of the three arbitral awards into an Order of the Court pursuant to section 59.8 of the Family Law Act. However, she declined to make a Support Deduction Order on the April 13, 2020 Award, because none of the payments were identified as support. She did make a SDO on the August 4, 2020 Award because the amount of $2,750 per month was clearly defined as spousal support, to be increased to $4,545 once M.K.-C. no longer received the CERB.

Justice Miller also ordered M.K.-C. to pay the arbitral costs awarded to C.C. of $3,800, which partially offset costs of the motion to be paid from C.C. to M.K.-C., in the amount of $9,500. I was not able to locate a SDO that showed whether/when the award of spousal support increased, and whether it terminated November 14, 2021 the day before the effective date of Justice Mandhane’s Order. The latter did not provide for any retroactive amount for spousal support.

December 20, 2022 Justice Ricchetti conducted a second Case Conference, confirming a revised timetable for the February 1, 2023 long motion.

January 4, 2023 C.C. served an urgent motion for reunification therapy for two of their sons, and for an Order permitting him to pick them up from school even when a Friday was not a school holiday. Otherwise, he could not see the boys because he continued to be under strict terms of bail, and M.K.-C. refused to drop them off at his residence. Justice Emery found that the motion was not urgent and was to be added to a regular list. C.C. ultimately did not pursue the motion because the parenting situation improved, and all focus was turned to the February 1, 2023 Motion.

January 25, 2023 In response to court’s staff’s concerns with M.K.-C.’s efforts to improperly file a Writ of Seizure and Sale of C.C.’s vehicles, Justice Van Melle ordered that she was not permitted to file a Writ against the respondent’s property pending the hearing of the long motion on February 1, 2023.

C.C.’s lawyer prepared an urgent motion that day to prevent a Writ being issued, which at the time, was believed to be for the enforcement of the Arbitral Award. He raced to the courthouse to defend the motion, only to find that it had not been filed.

Commentary: At trial, M.K.-C. testified as to her efforts during the fall of 2022 to seize C.C.’s vehicles, a vintage Porsche purchased before marriage, and a Porsche that he drove, as well as a number of boats kept at the cottage. Because the October 20, 2021 Order was under FRO enforcement,[^5] she was not entitled to take enforcement steps unless she withdrew from the FRO. She has never done so. C.C. testified to his mother being called by Rosie to gloat that they were going to take away his Porsches. At Trial, M.K.-C. testified that she needs to take the vehicles and boats as security for her claims because she fears that C.C. will go bankrupt.

February 1, 2023 Justice Agarwal heard the long motion, for which M.K.-C. had a limited retainer counsel. He required the parties to reattend the following day, after all the prior endorsements had been uploaded to Caselines and he had a clear understanding of the procedural history. He declined to adjourn the Settlement Conference set for April 21, 2023, citing that extensive history.

Justice Agarwal rightly found M.K.-C.’s request to enforce the Arbitral Awards through Writs of Seizure and Sale to be improper, and he ordered that she could file no more Motions for that relief. He also vacated M.K.-C.’s motion set for March 9, 2023 to dispense with C.C.’s consent for the release of moneys from the children’s RESP.

The endorsement went on to extensively detail each party’s disclosure requests, observing where there was consent, and the relevance of the items requested. At paragraph 50, Justice Agarwal invites the parties “to seek at Trial an adverse inference from the failure to disclose.”

No Costs were ordered.

March 7, 2023 Justice Ricchetti joined the Milton Civil Statement of Claim and the Brampton Divorce Application, transferring the former to Brampton. He ordered the Trial to the September 2023 sittings on a peremptory basis, with a timetable for any pleadings amendments. Expert reports were ordered to be produced by May 31, 2023, with responding reports served no later than June 2023. He seized himself of any further steps in the proceeding.

May 4, 2023 M.K.-C. brought an urgent motion to obtain Writs of Seizure and Sale or immediate possession of the couples joint assets, particularly the 2002 and 1988 Porsches with respect to the Arbitral Awards. She improperly describes the vehicles as joint property and did not reference Justice Agarwal’s decision. Because Justice Ricchetti had seized himself, he was able to make short work of the motion, referencing Justice Agarwal’s endorsement.

May 26, 2023 M.K.-C. brought a lengthy motion for 12 Orders, many of which made little sense, such as “costs of the arbitration for failure to comply” and an order to disclose their pre-marriage couples counselling records which she believed would prove their income and expenses.

Importantly, M.K.-C. again sought an Order for possession and sale of the vehicles stating, “The process of seizure and sale with the Sherriff will take too long to mitigate further financial penalties, foreclosure on the family home, and will allow me to properly prepare for Trial and retain counsel.”

She goes on to ask for a lump sum in the event that the sale of the Porsche does not raise sufficient funds to cover “court ordered support relief arrears.”

And she again asks for the release of the RESPs “in order to provide relief to me and remove opportunities for coercive control of us all.”

Justice Ricchetti granted none of the Orders sought by M.K.-C..

August 18, 2023 The defendants by counterclaim on the civil action moved for sum M.K.-C. judgement dismissing M.K.-C.’s claims against them on the basis of a limitation period. In lengthy reasons, Justice Ricchetti declined to do so.

August 31, 2023 M.K.-C. brought a motion asking for an Order allowing RBC to assign first position on the home mortgage to her mother. She supported her request with the assertion that “the refusal by the respondent to allow this is another instance of financial coercive control that will leave him in a financially better position at my expense. I and my five children living in the home are in your hands.”

There is nothing in the file that indicates RBC, or the other mortgagors were served with the motion, or that M.K.-C. understood that the two collateral mortgagors would have to consent to the assignment.

On September 12, 2023 while giving direction on the conduct of the upcoming Trial, set for four weeks, Justice Ricchetti declined to deal with M.K.-C.’s August 31, 2023 motion, explaining to her in the endorsement, that a court Order was not required for her mother to pay the RBC mortgage and take an assignment if terms were agreed amongst all the creditors and the other title holder. If terms could not be agreed, Justice Ricchetti questioned the court’s jurisdiction to impose terms of an assignment.

September 26, 2023 Justice Ricchetti endorsed that M.K.-C. has brought a further motion for the assignment of the mortgage, and for disclosure, claiming that the children were now suicidal.[^6] He dismissed the motions, confirming the start date for trial, the imperfect state of the disclosure, the need for it to be heard after four years of high conflict, and the ability of the trial judge to make adverse inferences. He then repeated his earlier directions on an assignment of the first mortgage.

The Trial started on Tuesday, October 10, 2023. As set out within the introduction, M.K.-C. brought one more motion on the Wednesday morning asking for an Order preventing the RBC from moving for a further 90 days. She asked that no money from the home be available to C.C. to pay out fraudulent debt, stating that “this is the reason The Honourable Justice Mandhane refused the request for partition and sale SINE DIE.”[^7]

Relevance of the Litigation History

[158] A plain reading of the chronology of this proceeding pops out M.K.-C.’s unreasonable expectations at the core of this litigation. Now seen as a whole, the only issues to be determined are income for support purposes, child support, section 7 expenses and spousal support, the equalization payment, any variation of that payment, and costs.

[159] As indicated previously, a prior Order for the sale of the home has issued, on consent. The race is now on as to whether the parties, the RBC or the third Mortgagee will sell the home.

[160] The home must be sold for fair market value, whether on the open market, or to Rosie. When sold, the net proceeds are to be distributed in accordance with the terms of this Judgment.

Period of Support Claims: November 1, 2020 to Present

[161] The parties agreed that the support terms at issue in this proceeding are to start as of November 1, 2020, being the first of the month after C.C. left the home.

Finding of Income for Support Purposes - M.K.-C.

[162] Relevant to determining M.K.-C.’s income, Section 19(1) of the Federal Child Support Guidelines provides that:

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;

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[163] For the following reasons, I find that the fairest determination of M.K.-C.’s income for support purposes is $125,000 per year, being the combined total of $25,000 in employment income imputed pursuant to Section 19(1)(a) and $100,000 of trust income imputed pursuant to Section 19(1)(i) of the Guidelines.

Employment Income for Support Purposes - M.K.-C.

[164] M.K.-C. has an impressive c.v. She was articulate, agreeable, and personable throughout the Trial. She holds an undergraduate degree from University of Toronto, she earned a law degree in the UK, and was working on a Masters in International Law when her studies were upset early in their marriage by a cancer diagnosis. She has recovered, and although she never returned to law, she has held a series of well-paid corporate leadership positions during the years that the parties were raising their growing family.

[165] In her last year of reported income: 2018, she earned $70,000 for six months of work at Lymphoma Canada. In her first sworn Financial Statement she indicated that she has only been unemployed since February 2019.

[166] M.K.-C. asks that I find that she is no longer employable because:

a. Despite having a full-time, live-in housekeeper M.K.-C. is a full-time parent of five sons, none of whom, for different reasons is able to withdraw from her care,

b. Despite the ages of her children, two of whom are adults, she cannot be away from home for any lengthy period.

c. Despite no apparent physical limitation, and contrary to the evidence of her dentist and dental surgeon, severe problems with her teeth prevent her from working.

[167] A court may impute income to a spouse who is not employed for the purpose of determining spousal support, provided there is a sufficient evidentiary basis to do so. Although there is no express provision in the Divorce Act which sets out how this is to be done, courts may apply the same methodology as is used under the Federal Child Support Guidelines, see Perino v. Perino 2007 CanLII 46919 (ON SC), [2007] O.J. No. 4298 (SCJ).

[168] I do not accept that M.K.-C. is unable to enter the workforce as a result of childcare responsibilities. I find that she has been intentionally unemployed. She worked throughout the marriage until she lost her last position in 2019. She did not provide a Record of Employment or evidence as to the terms of her departure, but she acknowledged in cross examination that she was dismissed for cause, and that litigation ensued. Perhaps it is this poor experience informs her current apprehension about returning to work, but it was not evidence that she adduced, or relied upon.

[169] A refusal to enter the workforce may entitle the court to impute income. A parent cannot be excused from his or her child support obligations, which includes the proportionate sharing of section 7 expenses, such as university or health care costs. A court is entitled to assess the amount of income the party could earn if she worked to capacity: Sobiegraj v. Sobiegraj, 2014 ONSC 2030.

[170] I do not find M.K.-C.’s reasons for unemployment to be persuasive, including her assertion that she must drive her oldest son to university everyday. I find that she is capable of earning a mid-range professional salary, and even if she ceased employing a housekeeper, she could work part-time. She has a duty to work towards self sufficiency and to contribute to her children’s financial needs by actively seeking reasonable employment opportunities that will maximize her income potential.

Analysis

[171] M.K.-C.’s sustained focus throughout the Trial and her professional manner was in my view, consistent with a significant annual earnings capacity, which as recently as 2018 was $140,000. Combined with the evidence of her dentist and dental surgeon as to the modest recovery time for any medical interventions, I find that there is no basis to find that she cannot participate in the workforce.

[172] At the same time, I do not give effect to C.C.’ assertion that M.K.-C. can earn $250,000 per year. M.K.-C. has been out of the workforce during some key years and there will be a transition period back. I also recognize that she continues to have some childcare responsibilities, although none that are significantly more than those borne by C.C..

[173] Thanks to the help of her mother, and the maturing of their sons, M.K.-C. concedes that her housekeeper now spends only a modest amount of time in a nanny role, and only because it is a continuation of past service. The three youngest children were 6, 9 and 12 in 2020 and are presently 9, 12 and 15.

[174] M.K.-C. has a legal obligation to contribute to her own self sufficiency and that of the family. It is not C.C.’s responsibility alone, and it is certainly not her mother’s legal responsibility. M.K.-C. was a significant financial benefactor to the family in prior years and given the family’s diminished financial circumstances, there is an urgency that she returns to that role.

[175] M.K.-C. received $25,000 in CERB in 2020. In my view, an imputation of $25,000 as an ongoing income is a reasonable amount for her to have earned from January 1, 2021 to present through part time employment. I anticipate that this amount will increase over the next few years as she transitions back to the workforce.

Income as a Beneficiary under a Trust - M.K.-C.

[176] M.K.-C. is the only surviving beneficiary of the Kosta Family Trust, which was settled by M.K.-C.’s parents in 2010. Monies and benefits received by M.K.-C. from the Trust has driven much of the disclosure requests in this litigation. C.C. was not provided with court ordered disclosure from the Trust until midway during the Trial, when Rosie announced that it had been tucked away in a suitcase, its importance previously unknown.

[177] The disclosure demonstrated that M.K.-C. does not have an ownership interest in the Trust as currently structured. It is a fully discretionary trust with Rosie making all the decisions since the passing of her husband, in September of 2021. The assets of the Trust are held in a corporation which issues dividend income to the beneficiaries.

[178] The corporate tax returns show the following distributions of dividends:

Year Total M.K.-C. Rosie Nick Grandsons

Dividends

2013 $75,000 $75,000

2014 $70,000 $70,000

2015 $66,300 $66,300

2016 $65,000 $65,000

2017 $72,000 $50,000 $11,000 $11,000

2018 $75,000 $49,000 $13,000 $13,000

2019 $47,000 $25,000 $11,000 $11,000

2020 $29,800 $29,800

2021 $28,000 $20,000 $ 4,000

2022 $59,000 $ 5,000 $35,000 $10,000 x 2

[179] I make the following observations:

a. M.K.-C. received all the declared dividends of the Trust prior to separation.

b. Thereafter, dividends were split with her parents, Rosie and Nick. After Nick’s death, they were reduced and only split with Rosie until the boys were adults. Thereafter, they were primarily paid to Rosie and the adult sons.

c. Rosie testified that she used her dividends to buy things for M.K.-C. and the boys.

d. As above, M.K.-C. never disclosed the actual amount of dividends received to the Arbitrator, or the pattern prior to separation. He did not have this information when he made the award of spousal support.

e. M.K.-C.’s November 11, 2019 Form 13. 1 Financial Statement shows no dividend income, only the receipt of CERB and Child Tax Benefit

f. M.K.-C.’s October 6, 2021 Financial Statement shows only $1,000 of dividend income and Child Tax Benefit as income.[^8]

g. M.K.-C.’s October 6, 2023 Financial Statement shows only $4,992 in dividend income, Ontario Works and CTB.

h. The reduction in reporting of dividend income for M.K.-C. not only corresponds with the date of separation, but also the qualification for CERB and Ontario Works.

[180] The failure to disclose information on the Kosta Family Trust prior to the October 2021 motion was the primary basis upon which Justice Mandhane imputed $100,000 of income to M.K.-C..

Analysis

[181] In viewing the pre-separation history of dividends in the range of $70,000, the beneficial tax treatment of dividends, and the non-taxable benefits (gifts) that M.K.-C. has received from the Kosta Family Trust, I come to a similar conclusion as that of Justice Mandhane, albeit by a different path on a fuller record. In doing so, I find that the fairest determination of M.K.-C.’s income and the benefits received by her from the Trust, pursuant to section 19(1)(a)(i) of the Guidelines is $100,000 per annum.

[182] M.K.-C.’s receipt of income and other benefits from the Kosta Family Trust was shielded and misrepresented throughout this proceeding. M.K.-C. did not accurately disclose them in any of her three sworn Financial Statements nor did she fully disclose the corporate tax returns for the Trust until mid-Trial. It is fair to say that it came as a shock to C.C., and the Court to learn how much financial support had been given to her since June of 2019.[^9]

[183] The discretionary nature of the trust permits Rosie to do so. She is free to adjust the dividends to benefit M.K.-C., from whom she is not at arm’s length. In my view, the divergence in post separation dividend distributions is too specific to have been inadvertent. Rather than M.K.-C. receiving the whole of the dividends, they were split amongst qualifying adults, and then used for the same purposes as when they had been wholly paid to M.K.-C..

[184] In my view, the pattern speaks to total dividends in the range of $70,000 per year, increased by the additional benefits made available to M.K.-C. on a regular basis, such as the payment of her furniture leases; grossed up to reflect their beneficial tax treatment. I impute the amount of $100,000 as a conservative calculation of the benefits that M.K.-C. has annually received from the Trust since 2021. A future calculation following a material change in circumstances. i.e. a variation application, may come to a different conclusion.

Reoccurring Gifts as Income

[185] Where a party receives regular gifts from his or her parent, the court may impute the amount of those gifts as income for support purposes: Bak v. Dobell, 2007 ONCA 304, 86 OR (3d) 196, at para. 75; Korman v. Korman, 2015 ONCA 578, 126 OR (3d) 561, at paras. 47-51, 62-65, 67; and Marello v. Marello, 2016 ONSC 835.

[186] In Malkov v. Stovichek-Malkov, 2017 ONSC 6822, at paras. 69-73, I found that reoccurring gifts bend towards income when payments for housing, utility costs, and realty taxes are regularly paid as if the spouse was a beneficiary of an unwritten trust. In Kkabbazy v. Esfahani, 2012 ONSC 4591, at paras. 77-87, the court imputed income to the husband based on evidence that he typically received and expected to receive funds “as needed” to support his lifestyle from his family.

[187] Without the benefit of submissions, I have considered whether Rosie’s evidence that she regularly assists M.K.-C. with everyday expenses, including housing costs, is a pattern of sufficiently unusual circumstances to support a finding that it is appropriate to treat the gifts as income.

[188] Rosie was clear that she gathers only some of the receipts at the end of each year to submit to her accountant to characterize as dividend income; treating the balance as gifts. From June of 2019 to the month prior to Trial, ($1,000,000 /28 months) this would approximately amount to $35,714 per month or $428,571 per annum.

[189] I have carefully considered the tests in the caselaw to impute reoccurring gifts as income. After some deliberation, I am not prepared to do so in these circumstances because those monies advanced to M.K.-C. were drawn from Rosie’s equity in her home.

[190] In my view, an imputation of income based on reoccurring gifts requires some evidence that the gifts themselves arise from the fruits of a trust, or trust- like holdings so that their receipt takes on the characteristics of income or other benefits from a trust. Those characteristics would include, but not be limited to income, or mixed income and capital generated by the holdings, and not a collapsing or a drawing of the generating capital.

Finding of Income for Support Purposes - C.C.

[191] The fairest determination of C.C.’s income for support purposes is assisted by the September 28, 2021 report of his expert, Mr. Kertzman, of Kertzman Valuations Inc. Mr. Kertzman is a senior Chartered Business Valuator who also holds a Law Degree from Osgoode Hall.

[192] His qualifications were not challenged, and his evidence was not shaken in cross examination. He was forthright with respect to the limitations of his report and identified areas of discretion and assumptions.

[193] An initial report released on December 9, 2020 did not fully account for personal expenses that passed through the dental practise, (the corporation”). As a sole practitioner and single shareholder of the corporation, C.C. is able to realize on certain tax benefits that are not appropriate deductions when determining income for support purposes in accordance with section 18 of the Guidelines.

[194] Those amounts included automobile expenses, telephone expenses, fees paid to the housekeeper, and some of the lease payments for household furniture. They were added back and grossed up to result in the final Income values of:

Year Gross Billings Income before Gross-Up Income After GU

2017 $586,428 $235,297 $304,622

2018 $542,491 $233,953 $306,020

2019 $540,689 $234,137 $307,873

2020 $364,088 $ 83,957 $153,508

[195] Mr. Kertzman testified that the reduction in 2020 income reflected the period of Covid shutdown of dental practises from March to June of 2020, and the reduced patient loads thereafter in compliance with public health protocols in 2021 and into the start of 2022.

[196] M.K.-C. questioned the completeness of the records available to Mr. Kertzman, who acknowledged that he used the financial records provided to him, exclusive of the patient books, which in his view were sufficient to discharge his scope of review. He described how he had cooperated with her expert, Mr. Ormstein to answer his questions and provide the source documentation available to him, but that Mr. Ormstein had not been further retained to follow up on the information provided.

[197] Mr. Kertzman agreed that if there was unreported income, the value of the income would increase. C.C. denied any unreported cash income, acknowledging that he does provide “a break” to those without insurance but that the reduced fees charged are fully included in his income. He spoke at length about the reduced patient load that was necessary to comply with Covid protocols, and the ongoing jeopardy to his practise as a result of the College investigation.

Analysis

[198] Reviewing all the evidence as a whole, I accept that the gross billings set out in the report are consistent with the best evidence of C.C.’s hours, and services performed, including the evidence led by M.K.-C.’s witnesses. C.C. is not a cosmetic dentist as alleged by M.K.-C., and it would be a physical impossibility for him to generate $1,000,000 a year in billings as a sole dentist with two chairs. His hygienist doubles as a receptionist.

[199] I also accept that the prognosis for his practise is guarded. He has been charged with serious crimes that he must disclose to patients. Even if the second set of charges of fraud are withdrawn and the college proceeding resolved, there may be a lingering chill on his practise. In addition, C.C. has been drawn into countless litigation hours, taking an unprecedented month away for this trial. He faces the outstanding complaints made by M.K.-C., including a false allegation that he fathered a child with his hygienist and that he alone is responsible for the present state of her dental health.

[200] When questioned on these allegations during her testimony, and their effect on his ability to generate income, M.K.-C. appeared ambivalent. She eschewed no personal knowledge of the allegations, deflecting to the authorities the rightness of her complaints should they prove to be founded. None to date have been. As earlier stated under my finding of credibility, M.K.-C. did not disclose that she had received care from a dentist after C.C. ceased treating her in 2017.

[201] I recognize that C.C.’s income may have increased in 2022 and 2023, but in the circumstances, I find that I must use the same conservation approach given to M.K.-C. if I am to assess the fairest determination of C.C.’s income for support purposes in an even-handed manner.

[202] Therefore, I find C.C.’s income for support purposes to be the amounts calculated by Mr. Kerztman; and I assess 2021 income as the midpoint between 2020 and 2019 to account for the reduced patient load due to Covid protocols. I then set 2022 and 2023 back to pre-Covid levels with an upwards adjustment reflective of that experiences year over year from 2017 to 2019. I find C.C.’s income for support purposes to be:

• 2020 - $153,508

• 2021 - $230,690

• 2022 - $310,000

• 2023 - $312,000

Order for Child Support

[203] During the trial, there was some question as to whether one of the adult children was in full time school during 2022. To avoid having to obtain evidence from him, C.C. agreed to pay table child support for all five children, so I need not consider the period of time that one of the older children was out of school.

[204] Final Order to issue that C.C. pay table child support for five children based on the above findings of income.

[205] The overpayment of $3,000 per month, ordered on October 29, 2021 as a credit to section 7 expenses which were not made out at Trial, will result in a period of credit for C.C.. M.K.-C. should anticipate not having a payment of child support until the credit is extinguished.

Court Prepared Divorce Mate calculations

[206] Having determined income for support purposes, I have also prepared six DivorceMate calculations with, and without section 7 expenses for each of 2021, 2022 and 2023, attached to these reasons as Schedule “A”. Neither of the parties prepared a calculation or demonstrated any understanding of the calculations.

[207] My calculations are not determinative of the issues, only demonstrative. They are offered as a guide in understanding my reasons. But for table child support, the resulting figures may not be correct for reasons such as:

a. The parties did not provide me with the evidence necessary to determine the net of tax costs of education expenses, or any benefits available to offset education or health care costs.

b. I have estimated the amount of $6,000 per year in medical expenses for the boys as $1,000 per child without contribution by the adult sons. Although I accept that some expenses were incurred, they may not have been this high because the only evidence I received was billings for dental exams, optical appointments, and designer glasses.

c. The timing of certain expenses may be in dispute, and

d. The calculations assume tax deductibility for spousal support that will not be available to M.K.-C. unless she normalizes her dividend income, that is, it is paid to her directly rather than through her mother or adult sons.

Section 7 Expenses

[208] A Section 7 expense is an amount paid to a spouse for one’s proportionate share of a necessary expense for a child that is at the same time, reasonable to the means of the spouses. The parent seeking the Order bears of onus of demonstrating that the expense is both necessary and reasonable. The means of the parents takes into account the amount of table child support and the payment/receipt of spousal support.

[209] An expense may be necessary for a child, but not reasonable to the means of the family. For example, in the Divorce Mate calculation attached to this decision as Schedule ‘A” (2021 Without Sec 7), M.K.-C.’s Net Disposable Income (‘NDI”) upon receipt of table child support is $13,262 per month [$159,144 a year] and C.C.’s NDI is $6,548 per month [$78,576]. These amounts move to $13,634 per month [$159,144] and $6,189 per month [$74,268] with spousal support paid in the high range of $768 per month.

[210] On these figures, which includes $6,000 for medical expenses for the boys, private school tuition for five children and university tuition for one child is not within the means of the family, even when M.K.-C. is imputed with annual income of $125,000 (See Schedule B 2021 With Sec 7); because it leaves M.K.-C. with $10,728 a month [128,736] to operate her household and $1,863 [$22,356] to C.C. to house, feed, cloth and transport himself, assuming that M.K.-C. pays to him her proportionate share of the section 7 expenses that he is paying. (To date, she has not.) There is no range for spousal support, and certainly no ability for M.K.-C. to keep the home.

[211] Neither parent presented a budget for the children’s section 7 expenses showing the proposed expenses as reasonable to the family’s means. M.K.-C.’s advocacy focussed on the necessity of the expenses incurred for the boys (learned during the Trial to have been paid by Rosie) without ever identifying the amounts incurred. [^10] I permitted her to file a summary of those expenses in her Reply, and even with that information, and her spreadsheet, I was not able to identify what amounts were qualifying section 7 expenses, or whether she had personally paid any of the claimed expenses.

[212] Not every face value amount is a section 7 expense. For example, to qualify as a special expense under CSG, s. 7(1)(c), health-related expenses must exceed at least $100 annually and be net of tax. Subsidies, benefits or income tax deductions or credits must be deducted, and here, M.K.-C. did qualify for government benefit programs which she did not deduct from her spreadsheet.

[213] The cost of a housekeeper is not a section 7 expense, and I find there to have been no legal basis for the proportionate sharing of any childcare responsibilities once M.K.-C. stopped working in February 2019. Because support is agreed to start on November 1, 2020, childcare expenses are not factored into my DivorceMate calculations, nor do I include them going forward, because the part time imputed income of $25,000 assumes that M.K.-C. will be available for before and after school care when the children are in her care, as will C.C. when they are in his care. M.K.-C. and/or Rosie are free to continue Ms. Flores’ employment as they see fit, but I find that the costs of her employment shall not be a section 7 expense.

[214] Although a court can consider the family's spending pattern prior to the separation, that pattern also has to have been reasonable to the family’s needs. Here, they were not. The family was only able to fund their fulltime housekeeper, private school, lavish celebrations, and lifestyle by depleting the equity in their properties and not paying their taxes.

Analysis

[215] Despite the warnings of their marriage counsellor, their arbitrator, conference justices and the Motions Judge, M.K.-C. has fought to keep everything of their prior lifestyle without compromise.

[216] This is relevant with respect to section 7 expenses because C.C. has continued to pay the private school and university costs during a period in which I find that he ought not to have been paying those amounts. Not only have the amounts been unreasonable given the means of the family, but there was also no evidence before me that the public school system could not have met the post separation education needs of the children, including the middle child who has agreed learning and behavioural challenges.

[217] Because C.C. paid all of the education and tuition costs for the boys under the terms of the October 29, 2021 Order and most of the prior expenses, there must be a payment from M.K.-C. to C.C. for her proportionate share of those expenses. I calculate that payment based on C.C.’s tracking of his expenses, tendered as an Exhibit, which M.K.-C. did not contest at Trial. I find that amounts that he did not pay prior to November 15, 2021 were paid by Rosie as gifts.

[218] In my calculation, I have assumed that M.K.-C. paid $6,000 a year for medical expenses for the boys, despite Rosie’s evidence that she paid for most of them. I do so because only M.K.-C. can claim the corresponding tax deduction and I have imputed her with income from the Kosta Family Trust, some of which Rosie likely used to meet those expenses. In this manner I hope to avoid double counting.

[219] I was not given evidence of expenses beyond this amount, and the figure of $6,000 is an average over the years of 2021 to present. I do not make an adjustment for 2020 because of the timing of when section 7 expenses were incurred (education and medical) and the start date for the support terms of this decision.

[220] M.K.-C. and C.C. both want the younger boys to finish their current school years at the private school, and C.C. has already paid for their tuition to the end of the 2023-2024 school year. I will therefore make the final Order that the children not be further enrolled in private school effective June 30, 2024.

[221] I have calculated the amount that M.K.-C. owes C.C. for her proportionate share, net of tax, proportionate share of section 7 expenses as $59,088, being the total of $24,408[^11] payable in 2021, $17,940 payable in 2022 and $16,740 to the end of the 2024 school year. This amount includes the offset for C.C.’s payment to M.K.-C. of his proportionate share of section 7 expenses that she has paid.

[222] There shall be no ongoing Order for the payment of section 7 expenses by either party. If the parties are to share an expense , they must agree to it in writing, at least seven days in advance of the expense being incurred.

[223] Section 7 expenses shall be paid 30% by M.K.-C. and 70% by C.C..

[224] In the Orders section above, I have set out a reference process in the event the parties cannot agree on the amount s to be proportionately paid for post secondary education expenses, inclusive of residence and housing should an adult child move from away home.

Post Secondary Education Expenses and the RESPs

[225] Both parties ask me to remove the other from the two RESP funds. M.K.-C. asks for this Order so that she can use the monies to assist her. C.C. fears that they will be used for a non educational purpose.

[226] Neither parent has given me a legal basis upon which I can change the contractual terms of the RESPs. I have no educational budget for an adult son in university, or evidence of his ability to contribute to those costs. I find that I lack both jurisdiction and an evidentially basis to make any Order for the RESPs.

[227] I urge the parties to return to Arbitration to work through a plan for university/college tuition and the use of the RESPs, or alternatively, I give leave for them to attend before a DRO. I shall remain seized of this issue, so that the matter can be returned to me as a long motion by the DRO.

[228] I am not seized of a Motion to Change (section 17 Divorce Act variation) the table amount of child support, proportionate shares of section 7 expenses or spousal support.

Spousal Support

[229] M.K.-C. has made a claim for spousal support in her Application, but she did not claim spousal support in her Opening Statement. In her written Closing Statement she references section 15 of the Divorce Act and then digresses into unrelated grievances. I am prepared to read into her submissions a request for ongoing and indefinite spousal support.

[230] M.K.-C. also asks for a lump sum of spousal support equal to half the anticipated costs of her necessary dental work. While the costs of medical care can be factor in assessing the range of spousal support, there is no statutory basis for a stand-alone Order. M.K.-C. has never identified the amount of tax-deductible spousal support that she asks to be paid to her on a monthly basis. Moreover, there is no range of spousal support until C.C.’s obligation to pay the children’s educational costs is shared proportionate to the parents’ income.

[231] C.C. asks that no spousal support be paid given M.K.-C.’s ability to earn income and her significant family wealth, including a property in Greece that will pass to her absolutely upon her mother’s death.

[232] It is well accepted that trial judges have special duties to self-represented litigants, particularly with respect to courtroom procedure, procedural fairness, and gatekeeping the admissibility of evidence. In Dujardin v. Dujardin, 2018 ONCA 597, the Ontario Court of Appeal reminded trial judges about the role that the court must play towards self-represented litigants, while cautioning at para. 37 that:

A trial judge’s duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected.

[233] While mindful of C.C.’s rights to also be treated fairly as a self represented litigant, I will complete an analysis of the claim for spousal support that M.K.-C.’s holds but has not set out.

[234] First, I have no difficulty finding that M.K.-C. is entitled to spousal support on a non-compensatory basis given the length of the marriage, the functions performed during the marriage, and the parties’ ongoing economic interdependence as parents. Section 15.2(6) of the Divorce Act sets out the objectives of an Order for spousal support:

(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.

[235] I do not find that M.K.-C. is entitled to compensatory support given her professional status, the roles adopted during the marriage, and the mutual employment of a nanny/housekeeper throughout the marriage.

[236] Here, the purpose of spousal support is not to relieve the hardship arising from the excessive accumulation of debt during the marriage. The home must be sold, the debts discharged, and new budgets set in place. The purpose of spousal support is to make certain that when M.K.-C. and C.C. have divided their net equity and paid to the other any outstanding obligations, such as the section 7 reimbursement of $59,088 owing to C.C., the equalization of $70,361 owing to M.K.-C. and the post separation expenses of $55,746 owing to C.C.; that each will have some parity of means that meets the objectives of the Divorce Act.

[237] That parity must recognize that the parties will share the care of the children going forward. I must also not double count the financial assistance of M.K.-C.’s mother because I have already imputed to income and benefits to M.K.-C. from the Kosta Family Trust.

[238] Child support, including section 7 expenses takes priority over spousal support, see section 15.3 (1) of the Divorce Act.

[239] What this means here, is that when C.C. is paying all the educational costs, there is no range of spousal support. In 2020 there was no range of spousal support even without section 7 expenses once table child support was paid on C.C.’ income of $153,508, and M.K.-C. received $25,000 in CERB and Dividends of $29,800.

[240] As set out in the 2023 Schedule “F” calculation, C.C. only has monthly income of $3,548 after receipt of M.K.-C.’s proportionate sharing of those education costs. Because she has not yet paid them, his effective monthly budget is $2,153 ($3,548 - $1,395.)

[241] This means that at a minimum, no spousal support is payable until June 30, 2024, when the younger boys finish at their private school. The timing of the payments for private school tuition have resulted in monies paid in 2023 that are attributable to 2024. When I apportion them over the whole of the 2023-2024 school year there is no range of spousal support until June 30, 2024. The range only appears if there are no section 7 expenses.

[242] I am therefore faced with the difficulty of assessing spousal support knowing that two sons will continue in university throughout 2024. If C.C. pays the tuition (and/or residence) for those sons without contribution from M.K.-C., or the assistance of the RESP, it will reduce, and possibly eliminate, the range of spousal support.

[243] I do not wish to prolong this dispute, but given the history of the conflict to date, I have no confidence that the post secondary education issue will easily resolve. I therefore tie the Order for spousal support to the Order for proportionate sharing of post secondary education expenses, as set out in the Final Order.

Equalization

[244] Section s.5(1) of the Family Law Act (“FLA”) provides that the spouse whose net family property is the lesser of the two net family properties is entitled to an equalization payment of one-half the difference between them. Equalization recognizes that childcare, household management, and family finances are joint spousal responsibilities, and that a marital relationship inherently involves an equal contribution, whether financial or otherwise by the spouses to assume these responsibilities, which entitles each spouse to an equalization of net family property, subject to equitable considerations.

[245] Both M.K.-C. and C.C. seek a payment of equalization based on their December 31, 2017 date of separation. Net Family Property (“NFP”) is defined at ss. 4(1) of the FLA and refers to the value of all property owned by a spouse on the valuation date, after deducting their debts and other liabilities on the valuation date and after deducting the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage less debts and other liabilities existing as of the date of marriage.

[246] Certain property under ss. 4(2) of the FLA, such as a gift or inheritance, other than a matrimonial home, that was received by a spouse from a third party after the date of marriage, is excluded from a spouse’s net family property.

[247] Because most of the values making up the parties’ respective NFP were not in dispute, I was only required to make the following findings. Order to issue that C.C. shall make an equalization payment to M.K.-C. of $70,361.50. All amounts set out below have been rounded to the nearest dollar.

Property in Greece: This is a property that was purchased by M.K.-C.’s parents when she was a minor. Fractional title was placed in her and her brother’s name for estate planning purposes and a further fractional ownership amount was placed in her name (naked title) in 2010. The interests are different in nature, but I am satisfied by the expert called by M.K.-C., Olga Kallgergi, that neither conveyed beneficial ownership to M.K.-C. sufficient for the property to be found to be property as defined at paragraph 4(1) of the Family Law Act.

Cars, Boats and Vehicles: Each party called an expert to speak to the value of a 2008 Cadillac Escapade, 1988 Porsche 911 Turbo, a 2002 Porsche 996 Turbo, a 1988 33 ft Cigarette boat with trailer, a 1994 Aluminum fishing boat with motor, a MACH ZX 2004 Skidoo, a 2007 Sea-Doo GX 215 a Twin Triton Trailer and a Hoist owned by C.C.. He owned the 1988 Porsche prior to marriage. Its date of marriage value for equalization purposes is agreed.

I prefer the evidence of M.K.-C.’s expert on the value of the vehicles because her expert personally inspected the vehicles and gave cogent reasons for his values, particularly the value of the 1988 Porsche. I prefer the evidence of C.C.’s expert on the value of the boats, sea-doo, snowmobile, and trailers. Neither expert personally inspected those items and the evidence of C.C.’s expert better accorded with the date of separation condition and use by the family.

2004 BMW X5: This vehicle is jointly owned and is parked at the home. Its agreed value is in the range of $7,000. Neither party wants it. It is to be sold and the proceeds divided equally.

Cottage Dock, Play Climber and Gym Equipment: These items were jointly owned, were not valued and in my view should not be included in the NFP of either party. The dock was sold with the property and the play climber is in effect, in storage and may not be of any use to either parent given the ages of the children and the lack of place to put it. I was not given clear evidence of where the gym equipment is presently, or whether it will be sold with the house.

Jewelry: I ascribe no date of separation values to the jewelry owned by either party. Given the evidence that much of it was pawned by M.K.-C., I was not satisfied that any of it remained in the parties’ possession.

Canada Whole Life Policy and Loan: I place no value on the state value of this policy ($2,275) owned by M.K.-C., or grant her a deduction of a claimed loan against it ($2,100), as neither were in evidence.

Kosta Family Trust: I do not find that M.K.-C. holds an ownership interest in the Trust as defined at paragraph 4(1) of the Family Law Act.

Dr. Cadas Professional Corp: I am not clear if either the date of marriage or date of separation value is contested. It was not agreed. M.K.-C. did not propose an alternative value or establish a basis for limiting the weight of the valuation reports prepared by Mr. Kertzman, a chartered business valuator with ROI. The valuation of the practise was as of the date of marriage, the date of separation: December 31, 2017 (a second report having been prepared for December 31, 2018 when the DOS was disputed) and prepared for litigation purposes in accordance with stated limitations and prescribed methodologies.

Mr. Kertzman was not shaken in any manner on cross examination. Having reviewed the report in whole, I am satisfied by its conclusion as to the fair market valuation of the practise as an ongoing practise, inclusive of goodwill, net of tax.

[248] The resulting NFP Statement is:

M.K.-C. C.C.

Date of Separation Assets

Combined value of $1,285,000 $1,285,000

jointly owned property

the home and Cottage

2008 Cadillac Escapade $15,000

1988 Porsche 911 Turbo $246,000

2002 Porsche 996 Turbo $55,000

1988 33 ft Cigarette boat with trailer $ 8,800

1994 Aluminum fishing boat with motor $ 1,300

MACH ZX 2004 Skidoo $ 3,792

2007 Sea-Doo GX 215 $ 7,900

Twin Triton Trailer $ 1,255

Hoist $ 1,530

Bank Accounts and Savings $ 45 $ 10,927

Dental Professional Corp $351,032

Shareholder Loan $ 64,320

Sub -Total DOS Assets $1,285,045 $2,051,856

Date of Separation Debts

RBC $372,643 $372,643

RBC Line of Credit $ 1,350 $ 1,350

MIC Financial $190,000 $190,000

MIC Financial $125,000 $125,000

MIC Financial $ 31,000 $ 31,000

Cottage Mortgage $138,335 $138,335

407 $ 996 $ 996

CRA $ 7,154 $330,870

Canadian Tire Credit $ 520

Capital On HBC $ 10,966

Rogers Communication $ 3,923

Telus $ 3,019

Green Planet Litigation[^12] $44,129 $ 44,129

Royal Bank Judgment $ 14,520 $ 14,520

Subtotal DOS Debts $925,647 $1,266,751

Date of Marriage Assets

1988 Porsche 911 Turbo $ 44,985

Dental Professional Corp $ 240,000

Subtotal DOM assets $ 284,985

Net Family Property $359,398 $ 500,121

Equalization payment $ 70,361.50

Rounded $ 70,361

Post Separation Adjustment Claims

C.C.

[249] I make two post separation adjustments. The first arises from an overdraft balance on a Royal Bank joint chequing account. C.C. did not know about the account, or that it was in overdraft. M.K.-C. testified that her mother deposited to the account to top up funds for M.K.-C. to use. At one point, it went into overdraft and Rosie stopped depositing to the account. It went into collections, and then a Statement of Claim was issued. The claim went undefended and in June of 2018 the Royal Bank obtained a Judgement.

[250] C.C. learned of the account when a garnishment was served on his dental practise. He was required to discharge it to maintain financing for the practise. He entered into terms to discharge the debt for $30,000. In doing so, he is entitled to an adjustment of $15,000 (14,520 plus interest) on the equalization because he paid an amount on behalf of M.K.-C..

[251] C.C. also asks for an adjustment for his payment of M.K.-C.’s insurance and post separation utilities from 2021 to present. The amounts claimed after he left the home are:

2021 2022 2023

Car Insurance $4,063

Home Insurance $3,960

Rogers $21,267 $20,275

Enbridge $2,097 $5,985

Hydro (Alectra) $1,224 $686 $4,188

Vault Leasing $1,660

Furniture Lease $6,012

[252] It is a fact-based exercise to determine what utility amounts should be paid by the occupier of a joint property, particularly when children continue to reside in the home. Throughout this period, C.C. paid full table child support under the terms of this Order, paid the children’s private school education, post secondary education, and actively sought the sale of the home. He continued to pay towards the mortgage until April of 2021.

[253] I received no evidence as to why the Roger’s account was so high. The amount set out in C.C.’s Post Separation Expenses Chart: $1,689.53 per month does not match either party’s statement of expenses in any of the Form 13.1 Financial Statements for internet and cable alone. I am left to conclude that the balance included cell phone accounts, including those of the boys.

[254] I will order that M.K.-C. reimburse C.C. for the whole of her car insurance and furniture leases as the car is personal to her, and she will retain ownership of the furniture: $10,075; half of the home insurance, $1,980; all the utilities and vault leasing: $15,840; and half of the Rogers account: $20,771.

[255] This amount totals $48,666 and I grant it as an adjustment to be paid to C.C., as well as the $15,000.

[256] I remit only half of the Rogers account because I cannot see if it includes C.C.’ cellphone or if it includes some of the boys’ phones that could potentially be a section 7 expense.

[257] To be clear, this is not a precedent for the parents to share the ongoing cost of the boys’ cellphone expenses. As of January 1, 2024 the parents must decide whether their adult sons will pay for their own cellphones and whether the minor sons should each have their own phone. If the parents agree in writing, the agreed costs are to be paid 70% by C.C. and 30% by M.K.-C..

M.K.-C.

[258] M.K.-C. seeks redress for the monies that her mother has paid against the RBC mortgage arrears to prevent RBC from moving for possession.

[259] I have done my best to understand what is being requested, as it is clear that some of Rosie’s home equity has found its way into the parties’ joint RBC mortgage, but the amount is not visible on this record. Much appears to have been paid not to the mortgage, but to interest, penalty, and legal fees to forestall possession by the Bank. Those amounts are the costs to M.K.-C. of overholding and are lost.

[260] Ultimately, I find that I cannot grant M.K.-C. an adjustment for the following reasons:

a. As above, the amount of the adjustment cannot be discerned on this record. M.K.-C. has never provided an accounting of the monies that she says her mother paid against the mortgage. I am left to infer the exact amounts and their origin by incomplete exhibits.

b. In any event, such a claim is held by Rosie, not by M.K.-C.. Rosie testified that all the monies given to M.K.-C. were a gift. She is not seeking reimbursement. In her mind, the payments allowed her grandsons to stay in the home longer.

c. There has never been any confusion about the RBC mortgage being a joint mortgage. Whether paid by Rosie directly, or indirectly through M.K.-C., at all times M.K.-C. knew that she was paying arrears on a joint mortgage that reduced joint debt.

d. M.K.-C. did so without C.C.’s knowledge. She deliberately kept him unaware of her negotiations with RBC, but for when her mother offered to take an assignment of the mortgage as a whole. C.C. was not copied on the letters setting out terms to place the mortgage in good standing. He was not aware of the monies paid.

e. Throughout, C.C. vigorously endeavored to sell the home. He specifically plead the sale of property in his pleadings (as did M.K.-C..)

f. Finally, M.K.-C. took extraordinary measures, including making unsubstantiated claims of fraud to prevent C.C. from obtaining an Order for the sale of the home. A 2021 sale would have discharged all the encumbrances on title and saved substantial interest, legal fees, and penalty charges that both parties have incurred. Justice Mandhane relied on M.K.-C.’s allegations of fraud in the civil proceeding to defer the sale of the home until Trial. No evidence of fraud was advanced at trial.

No Variation of Share

[261] Both parties ask for an “unequal division” of their property for different reasons. M.K.-C. asserts that she is not responsible for any of the debt accumulated during the marriage, or alternatively, certain of the debt. She was not consistent in her allegations. As I have found in these reasons, she is wholly responsible for the debt is her name and her joint name.

[262] C.C. states that if M.K.-C. had not made her false allegations of fraud, the home would have been sold in 2021 when he sought the Order for sale. He asserts that the home would have sold well above its current value, and importantly, their debts would have been discharged over two years ago and ongoing interest would have been saved, well in excess of the negotiated reduction in interest owing to the third mortgagee in the Minutes of Settlement.

[263] Neither party proposes an amount to be varied. Neither party was aware of section 5(6) of the Family Law Act until I provided each with a copy, which reads:

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 number 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).

[264] As recently stated in Daciuk v. Daciuk, 2023 ONSC 70, by Kurz, J. at paras. 18-21: “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.

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

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.).

M.K.-C.’s Claim for an Unequal Division is Dismissed

[266] I find no merit in M.K.-C.’s submissions for an unequal division. When I look at the eight enumerated considerations, section 5(6)(a) to (h) I can find nothing unconscionable about the resulting equalization payment.

[267] The Family Law Act creates a scheme for property sharing upon marriage breakdown that promotes predictability and discourages litigation. Here, the result has been predictable throughout. The home, against which a Writ of Possession first issued in 2018 had to be sold, the joint debts registered against title paid, personal debts paid, and the net proceeds divided.

[268] There is nothing that is shockingly unfair or inordinately inequitable in the result at Trial, five years after delivery of that first Writ of Possession. The parties’ financial profile on the date of separation can be directly traced back to the RBC consolidation loan placed on title in 2010. That was the moment in time when there was an opportunity to reset the budget, pay down debt and build savings for their growing family. It was the road not travelled. And it has made all the difference.[^13]

[269] The road taken assumed a continuation of two high income earners, no health or financial setbacks, generous gifts from their parents, and endless increases in the equity of their home. It assumed an entitlement to live beyond their means by encroaching upon their future means, their parents’ means, and ultimately, their children’s opportunities.

[270] If only the parties had stayed in Mediation/Arbitration, sold the cottage and the home in 2021, sorted out the support issues, wished each other well, and started over again.

C.C.’s Claim for an Unequal Division is Dismissed

[271] There is some merit in C.C.’s submission, but I cannot stretch a claim for variation of share to include what is in essence, a claim for damages. Such a claim, and its particulars must be specifically plead. A court cannot make an Order on Motion or at Trial that has not been sought in the pleadings. A party must know the case that she is making and the case that she is meeting.

[272] A claim for costs arising from unreasonable litigation conduct is available. The parties should review Rule 24(12) of the Family Law Rules, and given my finding of bad faith in relation to the false Statements of Arrears, subrule 24(8.) For this reason, I am ordering that the net sale proceeds, after payment to C.C. of $52,393 (being $59,088 see para 221, plus $15,000 see para 250, plus $48,666 see para 255, less the equalization payment of $70,361 see para 248) is to be held in trust by the solicitor conducting the sale, pending my costs decision.

Costs

[273] The parties are to exchange written Offers to Settle the payment of costs by January 5, 2024. If costs are not agreed, costs submissions are to be made in writing on the following timetable. C.C.’s submissions are due by January 15, 2024, M.K.-C.’s response is due by January 25, 2024. C.C.’ reply is required by February 1, 2024. Submissions are limited to six pages, exclusive of a Bill of Costs and copies of any Offers to Settle. Reply is limited to three pages. Submissions and reply are to be served, filed, uploaded to Caselines and then copied to my judicial assistant, Aleisha.Salim@ontario.ca

McGee J

COURT FILE NO.: FS-19-96766

DATE: 2023 12 15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.K.-C.

Applicant

AND:

C. C.

Respondent

BEFORE: McGee J.

COUNSEL: Stephen BECK OCL Counsel

ENDORSEMENT

McGee J.

Released: December 15, 2023

[^1]: Because there is a parallel inquiry with the Dental College, I will not identify the dentists involved. [^2]: C.C. agreed that the cottage had been undersold but for a different reason. He had wanted to defer its sale until the following spring. His evidence was that M.K.-C. insisted that it be sold that fall. [^3]: $109,242.18 in mortgage and interest arrears + $5,909.45 in costs. [^4]: Without a Continuing Record properly maintained by the court, a Justice cannot know that the litigation history is being misrepresented. [^5]: Moreover, support was not in arrears. [^6]: There was no evidence heard during Trial to suggest that any of the children were suicidal or had received suicidal intervention or aftercare. [^7]: Capitalization as set out in the Notice of Motion. In answer to my question as to what she thought the term meant, M.K.-C. answered “indefinitely.” [^8]: There is an additional line item in this Financial Statement for “Severe Disabilities” funds. The qualification for this benefit was in dispute and is not relevant to the calculation of M.K.-C.’s income, only the table amount of income for an adult disabled child. [^9]: Because the $600,000 to be secured by the jointly signed Promissory Note was not advanced to the parties, C.C. reasonably assumed the money had remained with Rosie. [^10]: I suspect that she did so believing that the $3,000 awarded to her in October 2021 was fixed going forward and any additional amounts that she could demonstrate would be awarded to her on top. [^11]: To see this amount in the DivorceMate Calculation, look five lines from the bottom for the bracketed amount for section 7 child support, and multiply by 12). [^12]: The debt was not fully understood by either party until explored at Trial as it was a judgement arising from an undisputed Statement of Claim. With interest, it is now in the range of $100,000 and is secured on title to the home. [^13]: From “The Road Not Taken” by Robert Frost.