minicounsel

COURT FILE NO.: FC-20-1705

DATE: 2023/12/20

Keith Murch

Applicant

– and –

Kristine Lewis

Respondent

Carol Craig for the Applicant

Mark Smith, for the Respondent

HEARD: November 28 - December 2, December 5-9, 2022, June 28, 2023, November 10, 2023

1This 10-day trial dealt with the following issues:

Parenting of the parties’ now 12-year-old daughter Pippa;
Child Support – retroactive, ongoing and s. 7 expenses;
Spousal Support;
Equalization of Net Family Property (NFP); and
Post-separation adjustments.

2On June 28, 2023, an oral decision was provided on the parenting issues. On the same day, ongoing child support was resolved, and a final order was made on consent. An appointment was scheduled to settle the details of the order and on September 8, 2023, I signed the attached final consent order with respect to parenting, ongoing child support, s. 7 expenses and retroactive base child support. See: Appendix A.

3Retroactive s. 7 expenses, equalization of NFP, post-separation adjustments and spousal support were not resolved. On November 10, 2023, an oral decision was provided on retroactive s. 7 expenses and equalization of NFP with reasons to follow.

Background

4Both parties are veterinarians. Dr. Murch is 72 and Dr. Lewis is 44.

5Dr. Murch grew up in New Brunswick (NB). He completed his education and obtained his qualification as a Doctor of Veterinary Medicine (DVM) in Ontario in 1977. He then returned to NB where he practiced with the Veterinary Branch of the NB Dept of Agriculture until his retirement in 2016. Dr. Murch specialized in large animals, specifically horses. He was the only vet with a strictly equine practice in NB. After the parties moved to the Ottawa area in 2016, Dr. Murch began working again and now has a full time private equine practice with Dundas Veterinary Services in Winchester near Ottawa.

6Dr. Lewis also grew up in NB. She completed her education and obtained her qualification as DVM in PEI in 2003 after which she returned to NB. While attending veterinary college, she worked with Dr. Murch as a summer student in 2001 and 2002. After obtaining her license to practice in the spring of 2003, Dr. Lewis did an internship under Dr. Murch’s supervision until April 2004. She wished to focus on large animals.

7During her internship, Dr. Lewis was 23 and Dr. Murch was 52 years old. Although he was married to another veterinarian and had three children, Dr. Murch was very attracted to Dr. Lewis, which appeared to be mutual. The parties began a romantic relationship which continued throughout the year. Dr. Murch told his wife, they separated and after a settlement was negotiated, he bought a house in Mactaquac, approximately ½ hour from Fredericton NB, in the summer of 2004.

8Although Dr. Lewis was initially conflicted about the relationship, it continued and in 2004 she introduced Dr. Murch to her parents as her partner. She spent a lot of time with Dr. Murch at the Mactaquac home and she and her parents helped with decorating, cutting wood, and fencing. Dr. Murch was clear he wanted to keep the relationship private as he was still her supervisor, and wanted his divorce finalized.

9In 2006, Dr. Murch proposed to Dr. Lewis while they were on holiday on Vancouver Island. They were married on October 7, 2008. Dr. Lewis then moved into the house in Mactaquac where Dr. Murch was living with two of his children. The home was mortgage free and after marriage Dr. Lewis was added to the title as a joint owner.

10Dr. Lewis had some health problems at the end of her internship. She was able to do some part time work in 2005 and 2006. In the Fall of 2007, she began working approximately three days a week plus on call hours at a small animal clinic in St. Stephen, about 1.5-hour drive from Fredericton.

11In 2008, Dr. Lewis applied for employment with the Canada Food Inspection Agency (CFIA) and was offered a position in Edmunston which she turned down given the distance, French language requirements and her health concerns. However, she remained interested in working for CFIA.

12In 2009, she began part time work at a Fredericton clinic 2.5 days a week plus some on call hours.

13On October 1, 2011, the parties’ daughter, Pippa was born.

14Dr. Lewis left the Fredericton Clinic in July 2011 and remained home with Pippa until returning to work at Southpaw Animal Hospital three days a week plus on call. She found the work a struggle given her health issues which she described as pain and fatigue, and a work environment, she considered “unbearable”.

15The parties discussed a possible move for several years. Dr. Lewis spoke to friends in Ottawa about possible CFIA positions and applied again. She also investigated options in Belleville and Niagara, Ontario. Dr. Murch wished to remain in NB and continue working to maximize his pension but agreed to move in 2016.

16In July 2016, Dr. Lewis was offered a contract position with CFIA which she accepted. Dr. Murch officially retired on November 1, 2016. However, he was able to leave and move to Ottawa with Dr. Lewis in July as he had accumulated overtime.

17After renting for a year the parties bought a home in Stittsville, near Ottawa with room for their horses and equipment.

18In September 2016, Pippa was enrolled at Guardian Angels Catholic Elementary School nearby, where she remained until June 2023. She had to change schools in Sepembert 2023 as her previous school only went to Grade 6.

19Given the cost of the move, difficulty selling the home in NB and significant increase in housing costs, Dr. Murch who was then 65, worked with CFIA temporarily and as an equine veterinarian with Dundas Veterinary Services where he remains today on a full-time basis. Once this litigation is over, he plans to retire. He is 72 years old, has atrial fibrillation for which he had a pacemaker inserted, arthritis and is pre-diabetic.

20The relationship between the parties deteriorated after the move to Ottawa. They attended both individual and couples counselling for 1.5 years beginning in 2017. In May 2019, Dr. Lewis told Dr. Murch she wished to end the relationship. She remained in the matrimonial home but moved into another bedroom. The parties agree on June 1, 2019, as the date of separation.

21In the summer of 2019, Dr. Lewis began dating Bill Carlisle. Things in the home became increasingly stressful. There were arguments and both parties were concerned about the impact on Pippa.

22Dr. Lewis began renting an apartment in a friend’s home in Stittsville and moved there permanently in January 2020. The parties agreed and continue to agree, to equal parenting time with Pippa and joint decision-making.

23In the spring of 2020, Dr. Lewis’s parents who continue to reside in NB bought a small house for Dr. Lewis and Pippa in Carleton Place. After a few weeks in a camper van, Dr. Lewis and Pippa moved in. The family residing there were permitted to stay, and they all lived together until February 2021 when the family left. Renovations to the home were undertaken and completed in November 2021. Dr. Lewis continues to reside there.

24Dr. Murch continues to reside in the matrimonial home in Stittsville.

25Pippa continued to attend Guardian Angels School in Stittsville until June 2023 and to go back and forth between her parents’ homes. Other than during the COVID pandemic when Pippa was attending virtual school in Dr. Lewis’s home, weekdays were split as were most weekends. There has been no set schedule.

26As noted, Dr. Murch works full time as an equine vet but plans to retire as soon as the matrimonial issues are decided. His line 150 income in 2022 was $191,122 including employment, CPP and pension income. He estimates his post-retirement income will be approximately $90,000.

27Dr. Lewis now has a full-time permanent policy position with CFIA in the Animal Health Division. She testified that she loves her job. Her line 150 employment income in 2022 was $131,945.

28Before dealing with the substantive issues argued during this trial, the issue of disclosure must be considered.

Disclosure

29Unfortunately, this case was characterized by lack of full financial disclosure by Dr. Lewis. In addition, her positions, and the details of those positions on the significant substantive issues of child support, and spousal support were unclear until just before or during the trial. Her final draft order had no proposed amount payable for retroactive s. 7 expenses nor did it include anything for post-separation household costs, despite there being extensive evidence on both issues at trial.

30On September 29, 2021, Dr. Lewis brought a motion for the sale of the matrimonial home. As a preliminary issue, Dr. Murch objected to the hearing of the motion, on the basis that Dr. Lewis was in breach of a consent order made by Justice Engelking at a case conference on May 27, 2021, requiring Dr. Lewis to provide documentary disclosure supporting the value of debts and assets listed on her financial statement.

31Justice Audet dismissed Dr. Lewis’s motion and ordered she pay costs of $1000. Justice Audet indicated the motion could be brought back before her once Dr. Lewis had fully complied with her disclosure obligations. The motion was never brought back, and disclosure issues continued.

32In her reasons Justice Audet stated:

The uncontested evidence before me confirms that on March 31, 2021, Justice Engelking ordered both parties to provide any disclosure requested to support the assets and liabilities on their financial statement. The husband provided his documentation on May 27, 2021 (although he states that most all of it had been previously provided to the wife’s counsel). Despite at least three written requests by the husband’s counsel to the wife’s counsel since March 31, asking for the disclosure, none was provided. In fact, it appears as though this court application was filed for the very purpose of obtaining the wife’s financial disclosure because despite months of negotiation between counsel pre-litigation, the wife had failed to provide the requested disclosure.

The courts have made it repeatedly clear that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Financial disclosure is automatic and it should not require court orders (Leskun v. Leskun, 2006 SCC 25; Leitch v. Novac, 2020 CarswellOnt 5201 (C.A.); Rick v. Brandsema, 2009 SCC 10, 62 R.F.L. (6th) 239 (S.C.C.); Roberts v. Roberts, 2015 ONCA 450, to name only a few).

The wife in this case has engaged in exactly the conduct that all of these decisions have condoned [sic]. I fully agree with the husband’s position that the wife should not be entitled to seek relief from this court until and unless she has fully complied with her obligations (court-ordered and imposed by the Family Law Rules) to provide full and frank financial disclosure.

33After the dismissal of Dr. Lewis’s motion, further disclosure requests were made, and Questioning was held on August 12, 2022.

34At Questioning, Dr. Lewis gave undertakings to provide numerous documents some of which had still not been provided at the time of trial. In addition, she was to provide her position as to the amount of support she was seeking and on s. 7 expenses. Her final position on those issues was not clarified until just before or during the trial.

35The lack of complete financial disclosure and the lack of clarity as to Dr. Lewis’s position on several substantive issues made it difficult to meaningfully discuss and possibly resolve the financial issues prior to trial.

36As noted by the OCA in Frick v. Frick, 2016 ONCA 799 (Ont. C.A.), The Family Law Rules (FLRs) embody a philosophy peculiar to a family law proceeding. They provide for active judicial case management, early, complete, and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues.

37In Roberts v. Roberts, 2015 ONCA 450, the Ontario Court of Appeal noted the breach of the disclosure obligation causes real harm:

“Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.”

38Up to and during the trial in this case the lack of disclosure and clarity as to Dr. Lewis’s position, impeded progress of the application and possible settlement of the issues, caused delay, and generally acted to the disadvantage of Dr. Murch.

Parenting

39The parties agreed on equal parenting time with Pippa and on joint decision-making. However, there were several parenting issues upon which they could not agree. As noted above I made an order on those issues and provided oral reasons on June 28, 2023.

Ongoing Child Support

Base Child Support

40Dr. Lewis’s position as to the method of calculating ongoing base child support pursuant to s. 9 of the Federal Child Support Guidelines, SOR/97-175, as am. (CSG), was unclear. Ultimately, mid trial, she agreed to the set off method earlier proposed by Dr. Murch, based on the amounts in the Child Support Guideline, O.Reg. 391/97 as am. tables for their annual incomes as indicated on line 150 of their Income Tax Returns and Notices of Assessment.

41On June 28, 2023, I made a final order on consent requiring the parties to each pay Child Support Guidelines, (CSG) table child support to the other based on their respective annual incomes as follows:

Commencing July 1, 2023, and on the first of each month thereafter, Dr. Murch shall pay Dr. Lewis $1595 per month as per the CSG tables based on his 2022 l.150 income of $191,122, as disclosed on his 2022 income tax return and notice of assessment. Dr. Lewis shall pay Dr. Murch $1161 per month as per the CSG tables based on her 2022 income of $131,94. The set off amount payable by Dr. Murch is therefore, $434 per month.

42Dr. Lewis had not filed her tax return for 2022 nor had she received her Notice of Assessment. I ordered she file her 2022 tax return and provide a copy to Dr. Murch through counsel, within 30 days. The child support payable by Dr. Lewis was ordered to be subject to adjustment based on her line 150 income for 2022 confirmed by her Income Tax Return and Notice of Assessment. Her 2022 tax information was provided which is reflected in the order signed on September 8, 2023.

Section 7 Expenses

43Ongoing s. 7 expenses for Pippa were also resolved on consent after trial.

Imputation of Income

44At trial, Dr. Lewis argued that when Dr. Murch retires, income should be imputed to him for the purposes of child and spousal support. Although not specified, presumably the argument for imputation of income was pursuant to s. 19 (a) of the CSG due to intentional unemployment or underemployment.

45At present Dr. Murch continues to work full time and has an annual income of $191,122. At trial he testified his plan is to retire after the matrimonial issues are resolved. It remains to be seen exactly when he decides to leave his current employment and what he might choose to do after retirement if anything.

46Dr. Murch is 72 years old. He has had a physically demanding career as a large animal, equine veterinarian for over 40 years. He originally retired in 2016 when the parties resided together in New Brunswick and took a reduced pension in order to provide a significant survivor benefit for his wife and daughter. He began working again after the parties moved to Ottawa given housing costs and more recently the matrimonial litigation. He has several health issues including pre-diabetes for which he takes medication, arthritis, previous skin cancer, and atrial fibrillation. He had a pacemaker implanted in 2003-4 which requires monitoring and periodic battery replacement.

47I do not find it appropriate under these circumstances to prospectively impute income to Dr. Murch pursuant to s. 19 (a) of the Federal CSG based on intentional unemployment or underemployment. Dr. Murch is entitled under all the circumstances of this case to retire if he wishes. There is no evidence that retirement would be an attempt to avoid paying support prematurely. He has worked hard all his life at a very physically demanding job and has health issues. He testified his employment pensions, OAS and CPP income will total approximately $90,000 annually. This will be an adequate retirement income to enable him to continue to support his daughter.

48Despite the evidence led and argument made by Dr. Lewis at trial to impute income, the September 8, 2023, consent order included the following paragraphs:

When the Applicant retires, the parties shall adjust their Table child support payments as of the first of the month following his retirement, so that the Applicant's monthly child support payments are based on his annual pension income alone so as to avoid the Applicant paying monthly support based on employment income he no longer collects.

Beginning in 2024, the parties shall exchange their Income Tax Returns and Notices of Assessment by June 1^st annually. The parties shall adjust the amount of Table child support they pay each other as follows:

In June 2024, so long as the Applicant has not yet retired, the parties shall adjust the amount of Table child support they pay each other so that it is based on their previous year's line 150 incomes. The Applicant shall continue to pay support in this amount until the first of the month following his retirement when the Applicant's child support payments shall be adjusted to be based on his retirement income.

In June 2024, the parties shall confirm the Applicant's pension income as reported in his 2023 Income Tax Return and his child support payments shall continue to be based on this amount. The Respondent's payment shall be based on her previous year's line 150 income.

Commencing in June 2025 and in every year thereafter, the parties shall adjust the amount of Table child support they pay each other so that it is based on their previous year's line 150 income.

Retroactive Child Support

49Using the agreed upon set off method, I ordered retroactive base child support payable by Dr. Murch as outlined in the attached final order on consent. See Appendix A

Retroactive s. 7 Expenses

50There was no agreement reached regarding retroactive s. 7 expenses.

51As noted in the consent order, the parties agreed to share certain expenses in addition to the special or extraordinary expenses listed under s. 7 of the CSG.

52Both parties testified that post-separation the major expenses were for tutoring, psychological services, extracurricular activities, and some school related fees.

53Exhibit 25 outlined in detail the expenses incurred by Dr. Murch for which there were supporting documents. None of these were disputed by Dr. Lewis other than some payments for psychological services as her benefits covered 80%. Dr. Murch testified he paid the full amount and did not receive reimbursement. His evidence of total payments to August 31, 2022, is $12,303.04. I accept that evidence.

54Dr. Lewis also provided a list filed as Exhibit 79. Her payments to August 31, 2022, total $1,724.60. I accept that evidence.

55Based on the line 150 incomes of the parties from the date of separation to August 31, 2022, Dr. Murch should pay 64% of the s. 7 expenses and Dr. Lewis 36%.

56Therefore, Dr. Lewis owes Dr. Murch $4,429.09 for her proportionate share of Dr. Murch’s s. 7 expenses from the date of separation to August 31, 2022.

57Dr. Murch owes Dr. Lewis $1,103.74 for his proportionate share of Dr. Lewis’s s. 7 expenses from the date of separation to August 31, 2022.

58In total, Dr. Lewis owes Dr. Murch $3,325.35 for retroactive s. 7 expenses from the date of separation to August 31, 2022, which I order payable within 30 days.

59There was no evidence as to any other retroactive s. 7 expenses.

Equalization of Net Family Property (NFP)

60The law on the equalization of net family property begins with sections 4 and 5 of the Family Law Act, R.S.O. 1990, c. F.3, (FLA) which provide the framework for settling property issues between married persons. The steps involved in this framework were summarized by Justice Barnes in Perri v. Perri, 2016 ONSC 5833 at para. 90:

Step 1: Determine the net family property of each spouse under section 4. To determine the net family property these questions must be answered:

What property did each spouse own on valuation day?
What is the value of that property after making deductions and allowing exemptions permitted under section 4?

Step 2: Determine whether one spouse’s net family property is greater than the other. Under section 5(1) this difference is equalised by ordering that one half of the difference must be paid to the spouse with the lower net family property. This is subject to Step 3

Step 3: Before making an order under Step 2, the court must determine whether it will be unconscionable to equalize the net family properties. Considerations to consider in making this determination are listed in section 5(6).

61As noted above, a significant issue was whether Dr. Lewis’s survivor pension would be included in her NFP. There was no argument by her that equalization would be unconscionable in this case and no evidence was presented by Dr. Lewis as to any of the factors listed under s. 5(6) of the FLA.

62Both parties testified regarding the equalization issues and a jointly prepared Comparison of Net Family Properties Statements Form13C was filed as Exhibit 101 and relied upon by the court.

63Before turning to an analysis of the pension issue, it is necessary to consider a number of other equalization issues argued at trial.

Valuation Date Assets and Liabilities

1. Loan from Dr. Lewis’s Parents

64In March 2019, prior to separation, Dr. Lewis’s parents provided the parties with $12,000 towards renovations and repairs to the matrimonial home by way of a cheque for $10,000 to Dr. Lewis and another for $2,000 to Dr. Murch. Dr. Lewis reflects the total amount as a debt/liability on her side of the NFP Statement.

65After separation, Dr. Lewis’s parents also provided her with significant funds for legal fees and bills and began to discuss some form of repayment. Ultimately, just prior to trial, Dr. Lewis and her parents signed a loan document (Exhibit 67) requiring Dr. Lewis to pay her parents $100,000 by November 15, 2024, failing which any outstanding balance will be subject to 5% interest per annum.

66The onus is on Dr. Lewis to prove on a balance of probabilities that the specific $12,000 amount advanced by her parents for the matrimonial home was a loan and a debt for her alone to repay.

67In Chao v. Chao, 2017 ONCA 701(Ont. C.A.), the court outlined the following factors in the context of a loan vs a gift analysis (at para. 54):

Whether there [are] any contemporaneous documents evidencing a loan:
Whether the manner for repayment is specified;
Whether there is security held for the loan;
Whether there are advances to one child and not other, or advances of unequal amounts to various children;
Whether there has been any demand for payment for payment before the separation of the parties;
Whether there has been any partial repayment; and
Whether there was any expectation, or likelihood, of repayment.

68In attempting to determine the intention of Dr. Lewis’s parents at the time the monies were advanced to the parties, the question, as outlined in Chao, is whether the parents intended to retain a hold on the funds advanced. Did they intend a debt obligation at the time of the transfer?

In considering the factors outline in Chao I note the following:

The loan document was executed after separation and does not refer to the $12,000 advanced to both parties for repairs to the matrimonial home pre-separation.
Dr. Lewis testified her parents have provided her with more than the $100,000 reflected in the loan document for bills and legal fees post-separation.
The recently executed loan document outlines repayment terms but no security.
There was no demand for repayment or even mention of repayment by Dr. Lewis of the $12,000 or any of the significant funds advanced to her, until after separation.
There was no evidence there had been any repayment.
Dr. Murch testified he and Dr. Lewis intended to pay for the repairs to the home themselves, but Dr. Lewis’s parents offered the $12,000.
Dr. Lewis’s parents did not testify so there was no direct evidence as to whether they expected repayment by their daughter of the $12,000. There was no evidence of their intention at the time of the transfer.

69Under all these circumstances, I find Dr. Lewis has not met the burden of proving the $12,000 advanced to both parties pre separation to assist with repairs to the matrimonial home was a debt incurred by her.

2. Horses and Other Equipment

70Both parties owned horses and other equipment on Valuation Day. On the jointly prepared Comparison of NFP Statements Exhibit 101, Dr. Lewis removed these items. No explanation was provided. Dr. Murch acknowledges he had $10,000 worth of horses and other equipment while Dr. Lewis had items and horses worth $20,000. Those values will be added into the calculation.

3. Dr. Lewis’s Survivor Pension

71Will be considered separately below.

Date of Marriage Assets and Liabilities

1. Wood Lot

72The parties agree that Dr. Murch had a 50% interest in a 60-acre woodlot in New Brunswick on the date of marriage. They also agree it was worth $4500 on the date of separation. There was no appraisal or documentary evidence as to the value of the interest on either date. The only evidence was Dr. Murch’s testimony that the value had increased over the years as the lot was producing more lumber. He sold his interest in 2021 for $7750. No sale documents were produced.

73There is no question Dr. Murch had an interest in the woodlot on the date of marriage which was worth something less than $4500. Dr. Murch’s evidence of a $3000 value is reasonable and the best evidence available.

2. 2004 Toyota Echo

74Dr. Lewis owned this vehicle on the date of marriage. She produced a Letter from a product advisor at Myers Barrhaven Toyota indicating an “educated guess” of the value of between $8,000 and $10,000 depending on condition, service, and accident history ((Exhibit 70). The Red Book value produced by Dr. Murch for October 2008 was $7000 (Exhibit 100) which I accept as the best evidence.

3. Kubota Tractor with cab, loader and snowblower

75This was owned by Dr. Murch on the date of marriage and was sold during the marriage. Exhibit 48 confirms the value in 2007, a year before marriage, as $17,500 which I accept as a reasonable value a year later when the parties married. There was no evidence of a different value or to contradict this value provided by Dr. Lewis.

4. Horses

76Dr. Lewis owned three registered “Canadian” horses on the date of marriage which she estimates were worth $16,500.

77She purchased Fairweather in July 2000, eight years prior to marriage, for $6,000 (Exhibit 72). She testified the horse’s value would increase over time. Her estimate was $6,500 on the date of marriage.

78Her second horse, Leroy was also a Canadian. She estimated his value as $4000 on date of marriage but there is no documentary evidence to support that estimate.

79Her third horse Larkspur was sold for $6000 in 2010, two years after marriage. She testified the value two years earlier on the date of marriage would be basically the same.

80Total value estimated by Dr. Lewis is $16,500. Based on her evidence I do not find she has proven that value on a balance of probabilities.

81There is no documentary or expert evidence of the value of any of the horses on the date of marriage. Dr. Murch is prepared to accept a value of $15,000 for the horses on the date of marriage which I find reasonable.

5. Saddles, Harnesses and Other Horse Equipment

82Dr. Lewis testified she bought a new Barnsby saddle before marriage and had it shipped to New Brunswick from Apple Saddlery in Ottawa. An item information sheet was provided from Apple Saddlery (Exhibit 73) indicating an inventory value of $2,410. There is no evidence as to a date of purchase or date of marriage value. Dr. Lewis sold it not long after marriage but there was no evidence as to sale price. The best evidence is $2,410.

83Dr. Lewis also owned a jumping saddle on the date of marriage which had been purchased when she was a young teenager. It was the saddle on the horse when she fell and was badly injured at age 13. It was therefore approximately 16 – 17 years old when the parties were married. Dr. Lewis estimated it was worth $700 but there is no evidence supporting that estimate. The gap between date of purchase and date of marriage is too great to attribute any significant value.

84There were other harnesses and miscellaneous horse equipment owned by Dr. Lewis on the date of marriage. She had a catalogue showing a value for some of the harnesses ordered from the US as of July 1, 2001. There is no evidence of value on the date of marriage, seven years later but Dr. Lewis estimates $3500 which, in reviewing the evidence of the prices in the catalogue I find to be reasonable.

85Dr. Lewis has not provided documentary evidence of the values of any of this equipment on the date of marriage. She has provided her own estimates for a total of $12,110 based on the documents she was able to obtain and her own recollection.

86As with her horses, Dr. Murch acknowledges the Barrnsby saddle, jumping saddle and other equipment was owned by Dr. Lewis on the date of marriage but testified that in his view her estimates were exaggerated. He is prepared to agree to a value of $5,000.

87I find on a balance of probabilities based on Dr. Lewis’s evidence and the documents she was able to obtain that it is reasonable to attribute a total value of $6,000.

Survivorship Interest under the New Brunswick Public Service Pension Plan

88This was the most contentious issue in determining the equalization of NFP.

89Dr. Murch began working as a veterinarian for the NB dept of Agriculture June 6, 1977, and retired November 1, 2016, before the parties moved to Ottawa. The parties agreed that Dr. Murch would retire and after the move he would stay at home with Pippa. They reconsidered this plan after the move to Ottawa given the costs of the move, renting a property, and maintaining the home in NB. Dr. Murch began to work part time and then full time as an equine veterinarian.

90In 2016 while still in NB, Dr. Murch made an official request to retire and received information on the process. He attended a retirement planning session in October 2016. The forms of pension available to him at retirement were a 50%, 60% or 100% joint and survivor pension, the 50% option being the normal form of pension.

91Dr. Murch discussed these options with Dr. Lewis and together they met with a financial advisor, Tim Hicks to review the options and obtain advice.

92Ultimately, Dr. Murch decided to take the 100% option given his age, the age difference between he and Dr. Lewis and his desire to provide for his wife and young daughter. Dr. Lewis had been involved in the discussions and was aware that Dr. Murch had chosen that option.

93The 100% option significantly reduces Dr. Murch’s pension but provides long term financial security for Dr. Lewis and Pippa. If he dies before the person who was his spouse at the time of retirement, Dr. Lewis, she will receive 100% of his pension, whether they are married or divorced. If she dies, 50% is payable to Pippa. This benefit can provide substantial end of life income for Dr. Lewis who is a much younger, healthy spouse.

94Therefore, over the last seven years since retirement in November 2016, Dr. Murch has received a reduced pension. His pension is in pay, and the form of pension is irrevocable.

95Dr. Lewis argues although she will be entitled to receive 100% of Dr. Murch’s pension as a survivor pension after divorce, given the current state of the world - pandemics, environmental issues, conflicts - she may never receive the benefit. Although she is almost 30 years younger than Dr. Murch she could die first. She argues she will suffer financial hardship and may have to wait, based on the mortality tables provided by expert actuary, Mr. Guy Martel, for over 25 years before receiving the pension.

Is the Survivor Pension property as defined under s. 4 of the FLA?

96The short answer to this question is yes.

97 Section 4 (1) of the Family Law Act defines property.

4 (1) In this Part,

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property,

and

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date.

98In Bennett v. Bennett, [2004] O.J. No. 5808, (Ont. Div. Ct.) the Divisional Court noted at para 20:

The survivor benefit is a pension in its own right; its payment, however, awaits the death of the plan member who first receives the pension. It is analogous to the pension entitlement of an employee who is not retired. It represents an expected future stream of income that can be actuarially valued.

99The court continues at para 27:

…the survivor pension is carved out of the pension as a whole, with the result that Mr. Bennett receives a reduced monthly benefit in his pay envelope by virtue of the plan funding a survivor pension plan for his wife. Thus, Mr. Bennett has foregone full value of his pension in order to supply his wife with a pension. This means that the husband has used actual dollars to buy a pension for Ms. Bennett.

100In Withers v Withers, 2013 ONSC 1665, the court follows Bennett. At para 63 the court indicates the argument by the applicant that she may never receive the benefit and allowing it to be considered in equalization will cause her financial hardship, is not a reason to exclude the survivor pension if it should be included according to law.

101Justice Planta concludes at para 69:

In my opinion, the decision of the Divisional Court in Bennett, combined with the Supreme Court’s finding in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 that “a pension must be included in the equalization calculations and valued along with the spouses' other net family property,” (at para. 32) gives clear guidance on how this Court should treat the survivor benefits. I find that the survivor benefit should be included in the net family property for the purpose of determining the equalization payment.

102Dr. Lewis’s entitlement to the survivor pension is an existing right. Although contingent, it has a value to her. It is a present contingent interest in a future stream of income and can be actuarially valued. Therefore, it is included as property under s. 4(1) of the FLA.

Valuation of the Survivor Pension

103Actuary Guy Martel testified as Dr. Murch’s witness and provided expert evidence regarding the capitalized value of accumulated pension entitlements during marriage under the NB Public Service Pension Plan in a report filed as Exhibit 54. In doing so he applied the Ontario Pension Benefits Act, R.S.O. 1990, c. P.8 (PBA) as he testified, he was required to do. Dr. Lewis did not provide any other expert evidence.

104As noted by the OCA in Van Delst v. Hronowsky, 2020 ONCA 329, the process for valuating pensions is set out in s. 67.2 of the PBA as follows:

67.2 (1) The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse. 2010, c. 9, s. 44 (1).

(5) The imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be, is that portion of the preliminary value that is attributed by the administrator, in accordance with the regulations,

(a) to the period beginning with the date of the spouses’ marriage and ending on their family law valuation date, for the purposes of an order under Part I (Family Property) of the Family Law Act; or

(b) to the period beginning with the date determined in accordance with the regulations and ending on the spouses’ family law valuation date, for the purposes of a family arbitration award or domestic contract. 2009, c. 11, s. 49.

105It is also necessary to consider s.10.1(1) and (2) of the Family Law Act (FLA) as follows:

10.1(1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of that Act. 2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1).

(2) The imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of the Pension Benefits Act with necessary modifications. 2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1). Emphasis added

106In considering the term “with necessary modifications” the court indicates at paras 20 and 21:

20The use of the phrase “with necessary modifications” in s. 10.1(2) of the FLA indicates a legislative intent that the substance of s. 67.2 of the PBA be applied, while recognizing that some details may require modification. As the Supreme Court of Canada has recently observed, the words “with necessary modifications” are a contemporary reformulation of the Latin phrase mutatis mutandis: see R. v. Penunsi, 2019 SCC 39, 378 C.C.C. (3d) 37, at para. 49. They mean that the rules to be applied are read with necessary changes in points of detail, while the matter remains the same: Penunsi, at para. 50.

21In a recent decision considering s. 10.1(2) of the FLA, Raikes J. held that any departure from the PBA methodology must be justified as necessary by the party seeking that departure: Kelly v. Kelly, 2017 ONSC 7609, at paras. 161-162. I agree with and adopt that statement. This approach is consistent with the language of necessary modification. If one of the parties can show that, because the plan is not regulated under the PBA, a modification to the approach is necessary, departure will be warranted. Otherwise, the default position is that the PBA approach is to be used.

The court continues:

22This approach is also consistent with the legislative intent in reforming pension valuation on marital breakdown. The purpose of the new legislation was to create a uniform approach that would create certainty and avoid costly litigation over pension valuations: see Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess., No. 92 (24 November 2008) at 4156 (Hon. Christopher Bentley); and Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess., No. 111 (19 February 2009) at 4891 (Hon. Christopher Bentley).

23In summary, the legislature has signalled a clear intention in s. 10.1(2) of the FLA that a non-Ontario pension be valuated wherever possible in the same manner as an Ontario regulated pension. This means that the valuation formula in the PBA regulation Family Law Matters O. Reg. 287/11 should be applied to a non-Ontario pension with modifications only where necessary. In addition, a purposive interpretation of s. 10.1(2) of the FLA requires that, to the extent that other Ontario statutory provisions or regulatory requirements impact the valuation of a pension for family law purposes, they too should be applied to the valuation of a non-Ontario pension.

24In other words, a pension administrator should, to the extent possible, valuate a non-Ontario pension as if it were an Ontario pension. This is consistent with the purpose of the valuation exercise, which is to obtain a fair, predictable, and consistent division of net family property. Thus, it is important that provincial and federal pensions be valuated in the same manner, to the extent reasonably possible.

107In this case, Mr. Martel testified he valued Dr. Murch’s pension entitlements and Dr. Lewis’s survivor pension entitlements under the NB Pension Benefits Act as of the valuation date, in accordance with the Ontario legislation. No modifications were necessary.

108The Family Law Value of Dr. Murch’s pension entitlements as of the valuation date, June 1, 2019, is $1,126,342. Notional disposition costs based on Mr. Martel’s testimony are 24.2% = $272,574.76. Therefore, the net amount to be added to Dr. Murch’s assets after taxes is $853,767.24.

109Mr. Martel testified and indicated in his report, the Family Law Value of the surviving spouse pension benefit to be added to Dr. Lewis’s assets for equalization purposes is $907,544.

110Although his report indicated an average tax rate of 23.2%, he testified based on further information regarding Dr. Lewis’s current employment, that a tax rate of 33.5% would be appropriate. Therefore, the net amount to be added to Dr. Lewis’s assets after adjustment for taxes would be $907,544 - $304,027.04 =$603,516.76.

111Dr. Lewis is correct. This is a significant contingent interest which may not be realized for many years. She asks the court to apply the New Brunswick Pension Benefits Act(PBA) and order the pension be removed from net family property and be divided at source. There was no expert evidence provided as to this option and its financial implications. What is clear is that Dr. Murch would continue to collect reduced pension benefits and Dr. Lewis’s survivor pension benefits would be lost.

112As was noted above, Dr. Lewis did not request an unequal division of net family property pursuant to s. 5(6) of the FLA nor did she argue she could waive the spousal survivor benefit pursuant to s. 67.4 (8) of the Ontario PBA as referred to in Withers. No action was taken.

113To proceed in the manner suggested by Dr. Lewis under the New Brunswick PBA would require more than the modification of details referred to in Bennett. It would be to significantly change the substance of the application of the Ontario PBA. I do not find it to be justified by the evidence presented by Dr. Lewis.

114The survivor pension is analogous to the pension entitlement of a young employee who is not retired. It represents an expected future stream of income that can be actuarially valued. See: Bennett. I see no reason in this case to depart from the Ontario PBA approach.

115Taking into account taxes, a net amount of $603,516.73 will be included as Dr. Lewis’s property on the valuation date.

Determination of Equalization Payment

116Pursuant to section 5(1) of the FLA, the spouse whose Net Family Property (NFP) is the lesser of the two NFPs is entitled to one half the difference between them, subject to unequal division under s.5(6) of the FLA. As noted above, there was no claim by Dr. Lewis for an unequal division.

117Attached at Appendix B is a Net Family Property Statement based on my findings above and the values for the other assets, debts and liabilities reflected in the jointly prepared Comparison of NFP Statements Form, Exhibit 101. I note there were some minor mathematical errors in Exhibit 101.

118The equalization payment owing by Dr. Lewis to Dr. Murch is $410,177.73.

Means to Satisfy Equalization Payment

119Under s. 7 of the FLA a spouse may apply to the court to determine any matter regarding the spouse’s entitlement under s. 5. On such an application the court may order one of the following remedies under s. 9(1).

Powers of court

Section 9 (1) In an application under section 7, the court may order,

(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1); 2009, c. 11, s. 25

120In Thibodeau v. Thibodeau, 2011 ONCA 110 (Ont. C.A.), the court notes that s. 9(1) provides the court with statutory powers to grant remedies in the context of an application for an equalization of NFP under s. 7 of the FLA. The section outlines a series of options and equips the court with “a most extensive and comprehensive choice of powers” and “the flexibility required to enable it to choose the most appropriate method of satisfying the equalization entitlement the court has previously determined”.

121In this case Dr. Murch is requesting an order that Dr. Lewis’s interest in the matrimonial home on Conley Rd. Stittsville, be transferred to him in partial satisfaction of the equalization payment owing, pursuant to s. 9 (1) (d) (i) of the FLA.

122In Buttar v. Buttar, 2013 ONCA 517, the court notes at para 53 that s. 9 gives the court the power to transfer properties only if appropriate to satisfy an obligation for equalization of NFP. “In other words, the transfer power under s. 9 is specifically connected to the satisfaction of the order for the equalization of NFP rather than a general transfer power for the settlement of disputes arising from marital breakdown.” (See para. 53).

123In this case, as noted above Dr. Lewis owes Dr. Murch an equalization payment of $410, 177. 73.

124The most recent appraisal of the matrimonial home indicates a value of $960,000. Both parties have a $480,000 interest in this property. The most recent information is that the outstanding amount owing on the mortgage is $154,096.90 and $ 58,971.11 owing on the joint line of credit a total of $213,068.01. The best evidence of the net equity in the matrimonial home is $960, 000 - $213,068.01 = $746,931.99. Dr. Lewis’s half interest would therefore be $373,466.

125Her equalization payment owing is $410,177.73, leaving $36,711.73 which would remain owing if the interest in the matrimonial home was transferred to Dr. Murch. The transfer of the Dr. Lewis’s interest would mostly satisfy her equalization payment liability.

126Dr. Lewis has no security. Her parents own the home where she resides. She has no significant assets. There was no evidence as to her ability to secure a loan or in any other way pay the significant equalization payment in a reasonable time frame.

127In addition, she did not comply with the court order of Justice Engelking for disclosure early in the proceedings which resulted in a refusal by Justice Audet on September 29, 2021, to hear her motion for sale of the matrimonial home and a costs order of $1,000.

128I find this an appropriate case under all the circumstances to make the order requested by Dr. Murch. The title in the matrimonial home will be transferred to him and he will be solely responsible for the payment of the mortgage and joint line of credit.

129Therefore Dr. Lewis owes the remainder of the equalization payment of $36,711. 73, which I order to be payable within 30 days.

Post-Separation Adjustments

130Dr. Lewis left the matrimonial home in January 2020. She continued to contribute to the household expenses including the mortgage, property taxes and home insurance until October 2021 when according to her testimony, she could not afford to continue. Her financial means were limited, and it was her parents who bought a home in Carleton Place where she and Pippa now reside. Dr. Lewis pays rent and the other household and maintenance costs. She has a loan agreement with her parents for an interest free loan of $100,000 payable in full by November 24, 2023, failing which interest will be payable. Dr. Lewis testified her parents have provided a lot more than $100,000 to assist her over the last few years.

131Dr. Murch requested an order that Dr. Lewis pay ½ of the household expenses – mortgage, property taxes, insurance and maintenance costs from January 2020 to August 2022. He has charts showing those expenses and claims $28,785.24 in his draft order.

132Although there was no formal claim by Dr. Lewis for occupation rent, given:

Dr. Lewis’s financial circumstances,
Her contributions for almost 2 years after leaving the home,
Dr. Murch was not paying child or spousal support and
Dr. Murch has had the benefit of exclusive use of the matrimonial since separation,

I find that to order an equal contribution to household expenses post-separation would be inequitable under the circumstances.

Spousal Support

133Dr. Lewis claimed spousal support both retroactive to January 1, 2020, when she left the matrimonial home and ongoing.

134In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 SCR 420, the SCC outlines three types of support:

(a) Compensatory;

(b) Non-compensatory; and

135The basis upon which Dr. Lewis was claiming spousal support was initially unclear. It appeared from the evidence she was arguing entitlement to spousal support on both a compensatory and non-compensatory basis.

136Dr. Lewis’s position is she is entitled to compensatory spousal support as she was held back from pursuing her dream of being a large animal/equine veterinarian by her relationship and marriage to Dr. Murch and by health issues. The difference in their ages and the nature of the relationship were also referenced.

137She further argued that when she left the matrimonial home, her income was significantly less than Dr. Murch; she was initially residing in a small basement apartment and then a trailer. Her standard of living was much lower than during the marriage.

138Dr. Murch argues there is no compensatory or non-compensatory basis for the claim. Dr. Lewis was never held back in pursuing her career aspirations and was not significantly affected by health issues for which there was no medical evidence. In addition, the parties moved to Ottawa after Dr. Murch had retired for Dr. Lewis to pursue her career. Although she has always earned less than Dr. Murch, she has a good income and is able to support herself and Pippa and to have a comfortable standard of living.

Law

139It is important to begin with a consideration of the statutory objectives of spousal support outlined under s. 15.2 (6) of the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp), as am as follows:

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

1997, c. 1, s. 2

140The Supreme Court of Canada in Moge v Moge, 1992 25 (SCC), [1992] 3 SCR 813 indicated the primary purpose of a spousal support order is to redress the economic consequences of the “marriage or its breakdown” on the parties. The focus of the inquiry must be on “…the effect of the marriage in either impairing or improving each party’s economic prospects” (para 258).

141In reviewing the statutory objectives, no one objective is of overriding importance. Trial judges have significant discretion as to the weight to be placed on each objective depending on the circumstances of the parties. see Moge, supra and Bracklow, supra.

142The factors the court must consider in determining the amount and duration of spousal support are outlined in s. 15.2(4) as follows:

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

143As noted by Justice Horkins in D.A.S. v. P.S., 2021 ONSC 7358 at para. 255:

The "condition" of a spouse includes such factors as their age, health, needs, obligations, dependants, and their station in life. A spouse's "means" encompasses all financial resources, capital assets, income from employment, and any other source from which the spouse derives gains or benefits: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at pp. 440-442; Smith v. Smith, 2012 ONSC 1116, at para. 69.

144As noted above, in Bracklow, supra, McLachlin C.J.C. outlines three types of support:

(a) compensatory;

(b) non-compensatory; and,

145In D.A.S. Justice Horkins summarizes these bases as follows at para 259 and 260:

[259] As stated in Moge v. Moge and Bracklow v. Bracklow, there are three conceptual bases for entitlement to spousal support. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation. Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of a spouse. This ground for spousal support establishes that a spouse may be obliged to pay support based on the other spouse’s economic need, even if that need does not arise as a result of the roles adopted during the marriage. This basis for spousal support is founded on the view that “marriage is a relationship involving mutual obligations and interdependence that may be difficult to unravel when the marriage breaks down.” Moge, at pp.864-865; Bracklow, at pp.444, 448; C.Z., at para. 241.

260As the court emphasized in Bracklow, at pp. 450-451, “[a]t the end of the day….courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives in the Act.”

Analysis

Entitlement

146The parties were married and lived together for 10.5 years. They separated on June 1, 2019, but continued to reside in the matrimonial home until January 1, 2020, when Dr. Lewis left the home. They have one child Pippa. Dr. Lewis took time off before Pippa’s birth and after until returning to work part time. Both parties were actively involved in her care. Dr. Lewis was 40 years old, and Dr. Murch was 68 when the parties separated.

147Dr. Lewis began riding and showing horses when she was 11 years old. Horses were her passion and most significant interest from then on. As a teenager she volunteered at Dr. Murch’s clinic, and he became her hero. She testified she wanted to follow in his footsteps and become an equine veterinarian. She directed her studies and practical rotations at Veterinary College on horses and large animals and was able to secure an internship with Dr. Murch after graduating in the spring of 2003. Dr. Murch was the only strictly equine vet in NB at that time.

148Given health issues which included muscular pain, headaches and chronic fatigue, Dr. Lewis was unable to complete the last few months of her internship and was only able to do part time work for a few years.

149After the parties married in October 2008, Dr. Murch could no longer be Dr. Lewis’s supervisor. As he was the only equine vet in NB her goal of pursuing that career became difficult. In addition, her health issues continued to be a problem. She worked part time at small animal clinics until taking maternity leave in July 2011. Pippa was born in October 2011 and Dr. Lewis stayed at home with her until August 2012 when she returned to a small animal clinic practice 3 days a week. Dr. Murch continued his busy equine/large animal veterinary practice.

150Given health concerns and internal administrative issues, the work at the clinic became in Dr. Lewis’s word “unbearable”. She desperately wanted to move and look for a position elsewhere, but Dr. Murch wished to remain in NB until retirement to maximize his pension. The parties discussed moving for approximately four years. When Dr. Murch retired in 2016, he agreed to move to Ottawa.

151Dr. Lewis was offered a full-time position with the CFIA in July 2016. It was a policy position in an office setting which she felt was a good option given her health issues. She had not worked full time for several years. Her salary was also substantially more than when working part time at the clinic in NB. She accepted the position on contract. Her income steadily increased. She earned $106, 547 in 2020 and $120,066 in 2021.

152Dr. Lewis now has a full-time permanent policy position with CFIA in the Animal Health Division. Her 2022 income was $131,945. She testified she loves her job and is very happy.

153After the parties physically separated in January 2020, Dr. Murch remained in the MH. Initially, Dr. Lewis moved to a basement apartment in a friend’s home with a hot plate and a microwave. She had to find a place to board her horses and store her equipment. Later that year her parents bought a home in Carleton Place for Dr. Lewis to rent. It was agreed the family residing there could remain for a few months.

154Dr. Lewis and Pippa lived in a camper van in the backyard for a couple of months and then moved in with the family until February 2021 when they vacated the premises. At that point, the home needed to be completely renovated so Dr. Lewis and Pippa again stayed in a camper until November 2021 when they finally moved into the renovated home. Dr. Lewis continued to contribute to the expenses of the matrimonial until October 2021.

155As noted above, after marriage and until moving to Ottawa, Dr. Murch worked full time as an equine vet for the Government of NB. His employment income was always above $100,000 while Dr. Lewis was earning an average of $34,350 working part time. After the move Dr. Murch continued to work and to receive pension income and CPP. His 2020 income from all sources was $198,121.66 and in 2021 was $200,291. He plans to retire as soon as this litigation is over and estimates his income will be reduced to approximately $90,000.

156Based on all the evidence and the circumstances of this case I find Dr. Lewis entitled to spousal support on both a compensatory and non-compensatory basis for the following reasons.

From a very early age Dr. Lewis dreamed of becoming an equine/large animal veterinarian. She focused her studies and practical rotations at Veterinary College in that field. In addition, she volunteered and did her internship with the only equine vet in NB, Dr. Murch. She was determined to reach her goal. However, when she began a romantic relationship early in her career and then married Dr. Murch, he could no longer be her supervisor. Dr. Lewis gave up the opportunity to become a large animal vet and began working at small animal clinics.
Dr. Lewis’s health problems precluded her from working full-time and also impeded her ability to do any large animal work. Her income was minimal. She relied on Dr. Murch who was 28 years her senior, had been her hero when she was a teenager, then her mentor, then supervisor and finally her husband. His income was substantial as a full-time equine veterinarian for the province of NB.
Given her health problems and her minimal income working at the small animal clinics, Dr. Lewis wanted to move to Ontario after Pippa was born and investigated various options. The move was discussed for approximately four years. It was not until Dr. Murch retired in 2016 that he agreed to the move.
After separation, Dr. Lewis left the MH. For almost two years she had very modest accommodation – a friend’s basement apartment, a trailer, shared accommodation with a family in the home purchased by her parents requiring major renovation and a camper van. She had to board her horses elsewhere. Her standard of living was significantly less than that of Dr. Murch. She continued to contribute to the MH expenses until October 2021.
Although Pippa was residing with Dr. Lewis’s half time and Dr. Murch’s income was significantly higher, he paid no child support or spousal support.
Dr. Lewis relied significantly on financial assistance from her parents. They loaned her $100,000 post-separation but she testified they have in fact provided her with a great deal more.
There has always been and continues to be a disparity in the incomes of the parties.

From 2016 when the parties moved to Ontario, until physical separation in January 2020, Dr. Murch earned an average of $64,200 more than Dr. Lewis annually. Post-separation in 2020 Dr. Murch’s income was $198,122. Dr. Lewis earned $106,547, a difference of $91,575. In 2021, Dr. Murch - $200,293, Dr. Lewis - $120,066, a difference of $80,277. In 2022 the difference in incomes was $59,177. No child support was being paid by Dr. Murch.

In order to satisfy the equalization payment owing by Dr. Lewis she will lose her interest in the matrimonial home. Her net worth at this point is significantly less than that of Dr. Murch.

157Dr. Lewis suffered a significant economic disadvantage due to the marriage breakdown. After a 10.5-year marriage, she lost the advantages of sharing Dr. Murch’s higher income, residing in the matrimonial home to which she contributed, her equity in the matrimonial home given the equalization payment owing and the higher standard of living the parties were able to share together.

Quantum, Duration and Retroactivity

158Questions then arise as to quantum and duration.

159As noted above Dr. Lewis is claiming spousal support retroactive to January 1, 2020.

160Dr. Lewis filed her Answer claiming spousal support in January 2021. She is presumptively entitled to support from that date. Accordingly, her claim for retroactive support is from January 1, 2020, when she left the matrimonial home to January 1, 2021, when she filed her Answer.

161In Kerr v. Baranow, 2011 SCC 10, [2011] S.C.J. No.10, the SCC applied the approach it took to retroactive child support set out in S. (D.B.) v G. (S.R.), 2006 SCC 37, [2006] S.C.J. No. 37, to claims for retroactive spousal support.

162The relevant factors in considering an award of retroactive spousal support are:

the past circumstances and needs of the applicant, including a consideration of past hardship,
the current needs and circumstances of the applicant and the basis for ongoing spousal support,
the payor’s ability to pay and whether a retroactive award will create an undue burden/hardship on the payor,
any blameworthy conduct on the part of the payor such as incomplete or misleading disclosure,
notice of intention to seek retroactive support and negotiations to attempt to resolve the issue, and
delay in proceeding and explanation for the delay.

See: Kerr v Baranow, supra and Bremner v Bremner, 2005 3938 (ON CA), [2005] O.J. No. 608 (O.C.A.)

163None of the factors are decisive and all should be considered in a holistic analysis. There is a need for flexibility and a consideration of each case on its own merits.

164In this case I note the following:

After Dr. Lewis left the matrimonial home in January 2020, she had no where to live. She struggled to find suitable accommodation for herself and her daughter. She initially lived in a friend’s basement apartment, then in a trailer and finally in another camper before moving into the home purchased for her by her parents. I have no hesitation in finding she suffered hardship.
Dr. Murch remained in the matrimonial home, and, despite her circumstances, Dr. Lewis continued for a time to contribute to the household expenses.
Although he was living in the matrimonial home and his income in 2020 was significantly higher that that of Dr. Lewis, Dr. Murch did not pay any support – child or spousal. Dr. Lewis had to rely on funds from her parents who eventually bought her a home. Dr. Lewis has an outstanding loan of $100,000 payable to her parents.
After leaving the matrimonial home, Dr. Lewis was preoccupied and struggling to with find accommodation suitable for herself and her daughter. She retained counsel within months and within a year filed an Answer requesting spousal support. I do not find undue delay on her part.
Dr. Murch has a present ability to pay retroactive and ongoing spousal support. His income is higher than Dr. Lewis. Given the equalization payment owing by Dr. Lewis, she will lose her interest in the matrimonial home and Dr. Murch will be able to remain there.
When Dr Lewis left the matrimonial home in January 2020 her income for the previous year had been $102,270. Her 2022 income was $131,945. Her salary has steadily increased over the last number of years. Pippa attends school full time near her mother’s home. Dr. Lewis works full time at a job she loves. She testified she is very happy in her current position with the CFIA. She has achieved self- sufficiency.
Although Dr. Murch still earns approximately $71,000 more that Dr. Lewis., he plans to retire as soon as the litigation is over, which could result in a significantly reduced income.

165Under all the circumstances, I find it appropriate to order spousal support payable by Dr. Murch to Dr. Lewis retroactive to January 2020.

166As noted by Justice Horkins in D.A.S. v P.S. supra. at para. 269:

269In Fisher v. Fisher, 2008 ONCA 11, the Ontario Court of Appeal held that although the Spousal Support Advisory Guidelines are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines muse be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.” While the Guidelines are not binding, the provide a valuable litmus test for assessing spousal support.

167At my request counsel provided DivorceMate Spousal Support Advisory Guideline (SSAG) calculations for 2020-2022 which are useful in determining quantum and duration of SS in conjunction with the payment of child support.

168It is necessary to deduct from Dr. Murch’s income the portion of his pension income earned during marriage and included in the equalization calculation. The parties agree that the total amount to be deducted from pension income each year is $15,809.16.

169As the parties had equal parenting time with their daughter, it is appropriate to consider 50/50 net disposable income (NDI) after the payment of spousal support.

170In addition, as the amount owing by Dr. Murch will be payable as lump sum spousal support, the net present value (NPV) is to be considered. The SSAG calculations are helpful in this regard.

171Therefore, considering: the incomes of the parties, the deduction from Dr. Murch’s pension income as referenced above, the child support payable, 50/50 NDI as being appropriate, and NPV of lump sum spousal support being non-deductible/non-taxable to the payor/recipient respectively, I order Dr. Murch to pay to Dr. Lewis lump sum spousal support for 2020-2023 as follows based on the DivorceMate calculations provided:

For 2020 - Dr. Murch’s after-tax cost of 50/50 NDI SS of $1693 /month taxable

= $10, 493

Dr. Lewis’s after- tax benefit = $11,462

Midpoint of $10,977 is ordered to be paid for the year.

For 2021- Dr. Murch’s after-tax cost of 50/50 NDI SS of $1,353 per month taxable

= $8,363

Dr. Lewis’s after-tax benefit = $9,165

Midpoint of $8,764 to be paid for the year.

For 2022 – Dr. Murch’s after-tax cost of 50/50 NDI SS of $773/month taxable = $4,774

Dr. Lewis’s after-tax benefit = $5,240

Midpoint of $5007 to be paid for the year.

For 2023 based on the same incomes as 2022

Midpoint of $5007 to be paid for the year.

The total of lump sum spousal support payable by Dr. Murch to Dr. Lewis is $30,641, which I order to be payable within 30 days.

172Although Dr. Lewis is now largely self sufficient, given the length of the marriage, the compensatory aspects of the entitlement to spousal support and the ongoing disparity in incomes of the parties, I find spousal support should continue to be paid by Dr. Murch. Commencing January 1, 2024, he is to pay Dr. Lewis $773 per month based on the parties respective 2022 incomes with the adjustments noted above. The SSAGs indicate a spousal support duration of 5.25 – 11 years from the date of separation. The date of separation is June 1, 2019.

173In Fisher v. Fisher, supra the court noted that review orders are appropriate when a specified uncertainty about a party’s circumstances at the time of trial will become certain within an identifiable time frame.

174Dr. Murch testified throughout the trial that he intends to retire as soon as the litigation is over. As noted, he is 72 years old, has had a physically demanding career for over 40 years and has some health problems. It is unclear exactly when retirement will take place but that should become clear soon. Although he testified, he does not intend to do any work after retirement that too remains uncertain.

175Therefore, I order the issue of ongoing spousal support be reviewed when Dr. Murch retires. Dr. Murch anticipates his retirement income will be approximately $90,000. If that is the case and Dr. Lewis continues her career at the CFIA, she would have the higher income and spousal support would no longer be payable. However, at this point, that is uncertain.

Costs

176If the parties are unable to resolve the issue of costs, submissions may be provided, a maximum of three pages not including offers to settle and bills of costs. Dr. Murch’s submissions are due on January 30, 2024. Dr. Lewis’s submissions are due on Feb. 16, 2024, with any reply by Dr. Murch by February 29, 2024. Please submit them to my attention at scj.assistants@ontario.ca.

Blishen J.

Released: December 20, 2023

Appendix A

Final Order September 8, 2023

Appendix B

Net Family Property Statement

ONTARIO

Court File Number

Superior Court of Justice, Family Court

FC-20-1705

(Name of Court)

161 Elgin Street, Ottawa, Ontario K1P 2K1

Form 13B: Net Family

Property Statement

(Court office address)

Applicant(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Keith Murray Murch

Carol Craig

Respondent(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Kristine Amanda Lewis

Mark W. Smith

My name is (full legal name)

The valuation date for the following material is (date)

June 1, 2019

The date of marriage is (date)

October 7, 2008

(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership

(State percentage interest)

Address of Property

APPLICANT

RESPONDENT

Matrimonial Home, 50% interest

2170 Conley Road, Stittsville, Ontario, K2S 1B6

$307,500.00

Land, 50% interest, Ivan Rideout owns the other 50%

60-acre woodlot in New Brunswick

$4,500.00

Totals: Value of Land

$312,000.00

$307,500.00

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

APPLICANT

RESPONDENT

Other special items

Horses and other equipment

$10,000.00

$20,000.00

Totals: Value of General Household Items and Vehicles

$10,000.00

$20,000.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS