I. INTRODUCTION

[1] For over 20 years, the applicant Mirelica Skrak and the respondent Branko Skrak were happily married. Together with joining their families, Mirelica, a new immigrant to Canada, played a significant role in Branko’s businesses. They eventually retired together, doting over Mirelica’s grandchild. But a violent incident in October 2019 shattered that bliss. The parties separated.

[2] At issue in this proceeding are several complex and intertwined issues (largely monetary). First, did Branko gift the matrimonial home to Mirelica? Second, what, if any, deductions or exclusions should be made from the parties’ respective net family property? Third, should Branko pay spousal support to Mirelica? Fourth, should Branko be restrained from communicating with Mirelica? Fifth, should Mirelica pay occupation rent to Branko? And, finally, should there be any post-separation adjustments?

[3] Underlying all of these issues is a sub-dispute about disclosure. When the parties separated, Branko was barred from the matrimonial home. He says that Mirelica has refused to produce documents that he needs to defend himself. He also alleges that Mirelica is hiding significant assets that belong to him. For her part, Mirelica argues that she’s given Branko all of the documents she can find. She responds that, in fact, Branko has been hiding documents from her, all under the guise of the passage of time.

[4] As a result of my findings of fact and application of the law discussed below, I make the following orders:

(a) Branko is a beneficial owner of one-half interest in the home;

(b) the home is to be sold to realize the interests in it on the following terms—

(i) the home shall be listed for sale within 60 days, by a real estate agent chosen mutually by the parties; and

(ii) the net sale proceeds shall be divided equally between the parties;

(c) Branko shall pay an equalization payment of $368,029.86 to Mirelica, less $50,000 paid to her ($318,029.86) under the “Without Prejudice Interim Separation Agreement”, dated May 5, 2021;

(d) Branko shall pay spousal support in the amount of $1600 monthly from October 11, 2019, to September 30, 2022, and $550 monthly from October 1, 2022, indefinitely;

(e) the spousal support amount payable shall be increased annually on the order’s anniversary date by the indexing factor, as defined in subsection 34(6) of the Family Law Act, RSO 1990, c F.3, for November of the previous year;

(f) Branko shall purchase a life insurance policy for $50,000 to secure the spousal support payments, and designate Mirelica as a beneficiary of that policy;

(g) the spousal support provisions of this order shall form a first charge against Branko’s estate if there is insufficient life insurance at the time of his death to satisfy his remaining spousal support obligations;

(h) the parties shall list, within 60 days, and sell the property known as “The Tahiti Village Vacation Club” and they shall share in the net proceeds of the sale equally, except that each party shall be liable for one-half of the maintenance fees from the date of separation to the sale date;

(i) Mirelica shall transfer title of her cemetery plot at St. John’s Dixie Cemetery and Crematorium to Branko within 60 days;

(j) Branko shall transfer title of the 2007 Mercedes-Benz S 500 to Mirelica within 60 days;

(k) Branko shall pay $30,000 to the parties’ joint TD Bank Line of Credit account (*2691) from his share of the net sale proceeds of the matrimonial home;

(l) the contents of the matrimonial home shall be divided equally in their current form;

(m) if the parties can’t agree, the household effects shall be sold and the proceeds divided equally between the parties;

(n) Mirelica and Branko, who were married on October 15, 1999, shall be divorced and the divorce shall take effect 31 days after the date of this order; and

(o) the judgment shall bear interest at the rate of 2 percent per year starting October 11, 2019, and 7 percent per year starting as of the date of this order.

[5] Mirelica’s claims for a restraining order and that Branko pay half of the carrying costs of the matrimonial home are dismissed. Branko’s claim for occupation rent is dismissed.

II. BACKGROUND FACTS

[6] In 1998, Branko went to Croatia, his country of origin, for a vacation. He was introduced to Mirelica by her father, who was Branko’s friend. Branko was 54 years old. He’d been married twice before. He has two children from his first marriage. Mirelica was 34 years old. She also had been married twice before. She had a daughter, Tea, from her first marriage.

[7] Mirelica came to Canada in August 1998 to visit Branko. She stayed for 6 weeks. They were engaged in December 1998. Mirelica and Tea moved to Canada in June 1999. Mirelica and Branko were married in October 1999. There are no children of the marriage.

[8] At first, Mirelica lived with Branko in his house on Runningbrook Drive in Mississauga. Branko sold it to his cousin Mary Tizak in July 1999. In August 1999, Branko, Mirelica, and Tea moved to a home on Elgar Court in Mississauga. Branko paid $336,000 for the home. It had a reasonably small mortgage and was used to guarantee Branko’s business loans.

[9] At the time, Branko owned and operated Branik Tooling & Machine Repair Inc. The business repaired industrial equipment and machines in the food services business. Branik Tooling operated from Timberlea Boulevard, Mississauga. In 1998, Branko bought land at on Brighton Road, Oakville, through 1270024 Ontario Limited (a holding company) to expand his business. The value of the Brighton Road property in October 1999 was $1.15 million.

[10] Mirelica was a bookkeeper in Croatia. In September 1999, Mirelica started working for Branik. Though Mirelica didn’t have a defined role, her duties included bookkeeping. She earned between $30,000 and $60,000 annually.

[11] After Mirelica and Branko were married, they expanded the businesses. Branik SmartTech Inc. bought new machines and equipment from Europe to be sold in Canada. Branik Food Equipment Inc. (formerly known as Branik SmartTech 2010 Inc.) built and sold food services machines and equipment. At some point, Branko also incorporated 2204944 Ontario Inc. (another holding company). The businesses all operated from Brighton Road.

[12] In 2011, Mirelica and Branko sold the Brighton Road property for around $2.1 million. The parties invested $500,000 each for their retirement,[^1] paid property tax arrears, lawyers and the real estate agent, and held the rest to operate Branik until it was closed.

[13] In 2013, Mirelica and Branko were injured in a car accident. Mirelica says that their injuries caused them to decide to close the businesses. They engaged Danbury Global, an auction company, to sell Branik’s assets. They received around $200,000 from the sale.

[14] After the businesses closed, Mirelica and Branko didn’t work. Mirelica says she wanted to work because she’s relatively young, but Branko didn’t let her because he didn’t want to be home alone. Mirelica helped Tea with her grandchildren.

[15] On October 11, 2019, Branko and Mirelica separated. Branko allegedly threatened to kill Mirelica, Tea, and Tea’s family with a knife. Branko was charged with uttering threats and assault with a weapon. As part of his release, he was restrained from communicating with Mirelica or Tea’s family and barred from the matrimonial home.

[16] Branko was allowed one visit to the house to get his stuff. The police told Mirelica to pack his clothes and leave them by the door. When Branko came to the house, he asked to go upstairs to get some jewelry. He was upstairs for 3 to 5 minutes. Mirelica doesn’t know what he took. Branko, who has sleep apnea, didn’t take his CPAP machine.

[17] After the separation, Branko lived with Ms. Tizak. In 2020, he bought a condo apartment. He paid over $500,000 for it. Branko paid for the condo using proceeds from a mortgage and funds he borrowed from Ms. Tizak.

[18] In August 2020, the criminal charges were resolved by Branko entering into a peace bond. He was, until August 2021, barred from contacting or communicating with Mirelica.

[19] At least until the separation, Branko had an excellent relationship with Tea. In 2010 or 2011, Mirelica and Branko loaned $112,000 to Tea so she could buy a house. Mirelica says that Branko decided to “secure the money in case of divorce”. When Tea went to sell the house in 2017, she discovered that there was a $160,000 mortgage on the property. This dispute ended in a lawsuit. Though Branko at first claimed his legal costs from that lawsuit in this proceeding, he abandoned that claim at trial.

[20] Branko’s relationship with his other children was more strained—in 2004, they broke into the matrimonial home while Mirelica, Tea, and Branko were there. The police were involved. Mirelica says the children were unhappy that Branko married Mirelica, and forced him to choose between her and them: “does he want to be with his kids or with his wife.” Branko allegedly said that when he died, he would leave them “a dollar to buy the rope and hang themselves because they don’t deserve better”. Though Branko was estranged from his children while married to Mirelica, he now has a positive relationship with them.

[21] There was some evidence at trial about Branko’s two previous relationships. Mirelica says that after she and Branko divorced, she discovered that he had been charged with uttering threats against his two other wives. Branko denies these allegations—he says his second wife suffered from mental health issues and tried to kill him. Still, he was convicted of assaulting his second wife. Mirelica also alleges that Branko was stalking her—she relies on his lawyer’s letter that mentioned cars parked in the home’s driveway. Mirelica argues that Branko could’ve only known about the cars if he was intentionally at the home. Branko says a neighbour told him about the cars.

[22] Mirelica started looking for employment in 2022 (she delayed her job search because of the stress from the separation, health issues, and COVID). In May 2021, Branko agreed to pay $50,000 to Mirelica for spousal support, on an interim, without prejudice basis. In October 2022, she opened her own consulting business. She earned $44,000 between October 2022 and September 2023. She says that she’s financially strained: her credit cards are maxed out, she can only pay the interest, and everything she earns goes to pay her bills, taxes, and lawyers.

[23] Though Branko tried to downplay Mirelica’s pre-marriage economic status, Mirelica owned a home and a car and worked full-time. Her parents owned a home and a cottage. Mirelica had no siblings and inherited her father’s estate.

III. CREDIBILITY

[24] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20, at para 82; R v HC, 2009 ONCA 56, at para 41.

[25] Both parties urge me to find that the other’s evidence is not credible. I decline to do so. I found both parties’ evidence to be credible, though unreliable at times. They both have a strong interest in the outcome. They both have a motive to make themselves look better, and the other party worse. The passage of time has impaired both of their powers of recollection. But each of their evidence was, for the most part, internally consistent and logically flowed from the rest of the evidence. If any party was evasive or hesitant, they were both equally so.

[26] Mirelica points to several instances that she says make Branko’s evidence not credible. But most of these are examples of positions he’s taken in the litigation. His position may be, in her view, unreasonable, but it doesn’t mean his evidence is not credible. For example, she argues that his evidence related to the transfer of the matrimonial home contradicted Mr. Backhouse’s and her evidence. Of course it did—he takes the conflicting position that he never intended to gift the home to Mirelica.

[27] Branko also points to several instances that he says makes Mirelica’s evidence not credible. He mostly focuses on her alleged failure to disclose documents. For example, much time was spent on a sales invoice for a car that Mirelica found just before trial—Branko argues that the late discovery of this document shows that Mirelica intentionally didn’t search the matrimonial home for business records. I didn’t find these arguments about non-disclosure persuasive. In some cases, the parties were arguing about documents from the last century. The businesses stopped operating over a decade ago. It’s unsurprising that documents have been lost in the interim. The nit-picking over disclosure wasn’t helpful in determining whether one or the other party was credible.

[28] The only other witness was Miles Backhouse, who was Branko’s and Branik’s corporate lawyer. I found his evidence to be credible, though understandably unreliable given the passage of time.

IV. LAW, ANALYSIS, AND DISPOSITION

[29] Both parties have filed draft orders. As Mirelica is the applicant, my analysis follows the presentation of issues in her draft order.

[30] That said, there are some issues that aren’t disputed. I endorse an order that:

(a) Mirelica and Branko, who were married on October 15, 1999, shall be divorced and that the divorce take effect 31 days after the date of this order;

(b) any equalization amount to Mirelica shall be reduced by $50,000 under the “Without Prejudice Interim Separation Agreement”, dated May 5, 2021;

(c) the parties shall list, within 60 days, and sell the property known as “The Tahiti Village Vacation Club” and they shall share in the net proceeds of the sale equally, except that each party shall be liable for one-half of the maintenance fees from the date of separation to the sale date;

(d) Mirelica shall transfer title of her cemetery plot at St. John’s Dixie Cemetery and Crematorium to Branko within 60 days;

(e) Branko shall transfer title of the 2007 Mercedes-Benz S 500 to Mirelica within 60 days; and

(f) Branko shall pay $30,000 to the parties’ joint TD Bank Line of Credit account (*2691) from his share of the net sale proceeds of the matrimonial home.

A. Issue #1: did Branko gift the home to Mirelica?

[31] Mirelica submits that Branko gifted the matrimonial home to her for two reasons: (a) to protect the home from Branik’s creditors; and (b) to protect her from his adult children and ex-wives. Branko agrees that the transfer was done to shield the home from creditors, but he says he never intended to gift it to Mirelica.

[32] When spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. See Family Law Act, s 5(1). Before property can be equalized under the Family Law Act, a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled. See D’Angelo v Barrett, 2016 ONCA 605, at para 19.

[33] A person may apply to the court for the determination of a question between that person and their spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties, and the court may: (a) declare the ownership or right to possession; and (b) order that the property be partitioned or sold to realize the interests in it. See Family Law Act, s 10(1).

[34] The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married. See Family Law Act, s 14. In gratuitous transfer situations, the actual intention of the transferor is the governing consideration. If a gratuitous transfer is being challenged, the court will start its inquiry with the applicable presumption and weigh all the evidence to determine the transferor’s actual intention. See Kerr v Baranow, 2011 SCC 10, at para 18.

[35] A presumption of a resulting trust is the general rule that applies to gratuitous transfers. When such a transfer is made, the onus will be on the transferee to demonstrate that a gift was intended. Otherwise, the transferee holds that property in trust for the transferor. This presumption rests on the principle that equity presumes bargains and not gifts. See Kerr, at para 19.

[36] In order to establish a gift, Mirelica has to satisfy three conditions: (a) an intention to make a gift on the part of Branko, without consideration or expectation of remuneration; (b) an acceptance of the gift by Mirelica; and (c) a sufficient act of delivery or transfer of the property to complete the transaction. See MacIntyre v Winter, 2021 ONCA 516, at para 40.

[37] Here, there’s no dispute that Mirelica accepted the transfer of title of the home, and title was delivered to her. Thus, Mirelica must establish, on a balance of probabilities, that Branko “intended”, at the time of the transfer, to make a gift of the matrimonial home to her. The standard of proof on a balance of probabilities requires “clear, convincing, and cogent” evidence. See MacIntyre, at paras 25, 28. If Mirelica can’t disprove the presumption, Branko will be a beneficial owner of one-half interest in the home, and entitled to share in any post-separation increase in the home’s value. See Alajajian v Alajajian, 2019 ONSC 4678, at para 108, aff’d 2021 ONCA 602.

[38] The intention to avoid creditors does not defeat a resulting trust claim. Although the general rule is that a party cannot rely on their own “illegality” in claiming a resulting trust or other equitable remedy, the intention of the parties is always a question of fact to be determined from the evidence. While evidence of an intention to defeat creditors can be evidence of a gift, it’s not conclusive. See Holtby v Draper, 2017 ONCA 932, at para 53.

[39] I find that Branko and Mirelica transferred title of the matrimonial home to Mirelica to shield the home from Branik’s creditors. But I don’t accept Mirelica’s position that Branko transferred title to her as a gift.

[40] By 2009 or 2010, Mirelica and Branko had been married for 10 or 11 years. I accept Branko’s and Mr. Backhouse’s evidence that Branko wanted Mirelica to be an equal partner in Branik (indeed, Mr. Backhouse’s contemporaneous notes say just that). In April 2009, Branko reorganized Branik. Now, Branko owned 51% of the common shares and, through 127’, all of the Class A shares of 220’. Mirelica owned 49% of the common shares of 220’. 220’ owned all of Branik Food. Branko continued to own all of the interest in Branik Tooling and Branik SmartTech. In sum, Mirelica owned almost half of Branik Food. Though the shares had no value when they were transferred to Mirelica, she would enjoy any increase in value of the shares (although of 220’, the holding company) and any distributions remaining after payment to the preferred shareholder.

[41] In 2008 or 2009, Terry Thompson sued Branik Tooling, Branko, and Mirelica. Thompson worked for Branik as an independent contractor—he would bring in equipment for repair, and share the profits with Branko. There was a dispute between Branko and Thompson, and Thompson sued (Branko blames Mirelica for the dispute—that fact is irrelevant).

[42] In April 2010, Branko transferred title of the matrimonial home to Mirelica. There was no financial consideration. The transfer document says it’s an “inter-spousal transfer for natural love and affection”—Mr. Backhouse explained that such a transfer avoids land transfer taxes. I accept Branko’s and Mr. Backhouse’s evidence that Branko did so to protect the home from Branik’s creditors, including the risks posed by Thompson’s lawsuit. If Branik’s creditors sued Branko personally and obtained a judgment against him, they may be able to enforce that judgment against his interest in the matrimonial home. By transferring the title in the home to Mirelica, Branko was trying to shield the home from Thompson and other creditors. Mr. Backhouse regularly gave this type of advice to his business owner clients. Indeed, Mirelica agrees on this point—her evidence is that Branko gifted the home to her, in part, to protect it against judgment execution if Thompson’s lawsuit was successful.

[43] So, for the most part, everyone agrees that Branko transferred title of the matrimonial home to Mirelica to protect it from Branik’s creditors. The issue is whether that is sufficient evidence of Branko’s intention to gift the home to Mirelica.

[44] Mirelica raises two points intended to undermine Branko’s argument that he didn’t gift the home to her. First, she says that if the transfer was only to protect against the risks of the lawsuit, Branko didn’t ask to reverse the transfer after Thompson’s lawsuit was over. Second, the transfer, if that was the intention, was ill-conceived because Mirelica was also a defendant. In her telling, these arguments show that Branko had another reason to gift the home to her—to protect her from his ex-wife and children.

[45] To begin, I don’t find the evidence about the restructuring of 220’ to be relevant or helpful. Though it assists in the narrative, it doesn’t show Branko’s intention, one way or the other. Even after all of these years and acrimony, Branko and Mirelica did agree on at least one fact: their marriage was a partnership. They lived together, worked together, raised Tea together, and shared their finances. Branko wanted Mirelica to have proof of their partnership in Branik, which he sought to achieve through giving her 49% of the common shares in 220’. Though her paper ownership was more symbolic than actual, there’s no evidence that she asked for anything more.

[46] On the main issue, I don’t accept Mirelica’s other explanation for the alleged gift. It doesn’t make common sense. She says that Branko was trying to protect her from his “first family”. In other words, if Branko died, his first wife and children could seek to challenge his will and try to claim his interest in the home. This argument is highly speculative—there’s no evidence that Branko’s other children claimed part of his estate or that the risk of an estate challenge was so high that he needed to transfer the home to her. The alleged impetus for the transfer was the break-and-enter 6 years earlier—if Branko were so concerned about his children “going against” Mirelica, it’s unreasonable to think he would wait 6 years. Mirelica acknowledged that Branko did the transfer after Thompson sued Branik Tooling—her evidence is more consistent with his intention to shield the home from Branik’s creditors.

[47] Mirelica testified that Branko often said, “now you can kick me out whenever you want”. Branko testified that he told Mirelica several times that he was nervous about the transaction, and he wanted to reverse it after the lawsuit was finished. That isn’t evidence of Branko’s intention at the time of the transfer. Indeed, Mirelica didn’t testify to any discussions she had with Branko either just before or just after the transfer. There’s no evidence from her, except what she now thinks happened, about Branko’s intention. I don’t find the evidence about Branko’s anxiety over the transfer helpful to determining his intention. Indeed, his anxiety may have been about the very thing that has now happened—he transfers title to Mirelica to protect their asset, and he’s now litigating, years later and at great expense, whether it was a gift.

[48] There’s also no evidence that he divested “all power and control” over the home. Branko also paid most or all of the household expenses after the transfer. See McNamee v McNamee, 2011 ONCA 533, at para 25; Colivas v Colivas, 2017 ONSC 4730, at para 47.

[49] Mr. Backhouse doesn’t have a memory of the specific discussions he had with Mirelica and Branko at the time of the transfer. But I accept that if Branko was intending to gift the home to Mirelica, Mr. Backhouse would’ve referred Branko to a family law lawyer for independent legal advice, which didn’t happen. At one point in court, Mr. Backhouse called the transfer a “gift”—Mirelica leans into this evidence. I don’t. Mr. Backhouse clarified himself. He wasn’t testifying as an expert witness. His “slip” was coincidental but not probative.

[50] Though Mirelica testified to her recollection of the discussions in Mr. Backhouse’s office at the time of the transfer, I don’t find her evidence on this issue to be cogent. She said that Mr. Backhouse said to her: “Branko is a nice guy, and he loved [you] so much, and that he transferred the house to [you] as a gift” and “congratulation, the house is yours”. Mr. Backhouse denies saying any such thing. The totality of Mirelica’s evidence is that there was no discussion between her and Mr. Backhouse about the transfer: he presented her a document that she signed, both Mr. Backhouse and Branko called the transfer a gift, and she didn’t ask any questions. It doesn’t make common sense that Mr. Backhouse would treat the transfer so casually given his serious concerns about a gratuitous transfer that raised family law issues outside his expertise.

[51] As in MacIntyre, I’m mindful of the need to guard against Branko’s self-serving evidence. But Branko’s direct evidence is supported by Mr. Backhouse’s indirect evidence and, to some extent, Mirelica’s own evidence. Mirelica hasn’t adduced clear, convincing, and cogent evidence to rebut the presumption of a resulting trust. The transfer, at the time, was to protect the home from the lawsuit—everyone seems to agree on at least that point. So even if it weren’t a perfect plan (because Thompson could enforce any judgment against Mirelica by seizing the home), or it’s unclear whether the transfer was done to protect against Thompson’s lawsuit or other claims, the intention to gift is not present.

[52] As a result, I order and direct that Branko is a beneficial owner of one-half interest in the home.

[53] Mirelica doesn’t oppose the sale of the home if I find that Branko is a beneficial owner. As a result, I order that the home be sold to realize the interests in it on the following terms:

(a) the home shall be listed for sale within 60 days, by a real estate agent chosen mutually by the parties; and

(b) the net sale proceeds shall be divided equally between the parties.

B. Issue #2: what, if any, deductions or exclusions should be made from the parties’ respective net family property?

[54] Net family property means the value of all the property that a spouse owns on the valuation date, after deducting: (a) the spouse’s debts and other liabilities; and (b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage. See Family Law Act, s 4(1).

[55] The onus of proving a deduction under the definition of “net family property” is on the person claiming it. See Family Law Act, s 4(3). The caselaw identifies several considerations for deductions:

• the party with the burden of proof has to adduce “sufficient credible evidence” (see Menage v Hedges, 1987 CanLII 5234 (ONSC), at para 52)

• that party must provide a realistic value for each asset, not a “guess or fictional amount” (see Sheikh v Sheikh, 2005 CanLII 14151 (ONSC), at para 110)

• failure to provide credible evidence to support a value may result in a value being assigned that is less advantageous to the party claiming the asset (see Sheikh, at para 110)

[56] Though judges have rejected deductions because the party claiming them didn’t have documentary proof (see, e.g., Jukosky v Jukosky, 1990 CanLII 12332 (ONSC), and Bilas v Bilas, 1994 CanLII 18163 (ONSC)), documentary proof isn’t always necessary. It’s possible to prove a deduction if a party’s oral evidence is credible and reliable.

[57] My findings on each of the deductions or exclusions claimed by the parties is incorporated into the Net Family Property Statement attached to these reasons. The parties have agreed on the value of all the other assets.

1. Mirelica’s Jewelry

[58] Mirelica’s position is that any jewelry she owned on the valuation date was either gifted to her by her mother before marrying Branko (and has since been gifted to Tea) or was gifted to her by Branko but doesn’t have any resale value. Branko’s position is that the jewelry was bought during the marriage, and it has a value of $100,000 on the valuation date.

[59] Branko has failed to prove his claim. He has the burden of proof. He’s provided no receipts or appraisals. Though Branko introduced photos of Mirelica during their marriage wearing jewelry, that’s unreliable evidence. He admits that Mirelica had jewelry in Croatia that she brought to Canada from time to time. The parties were robbed in 2019. Branko didn’t dispute Mirelica’s evidence that she gifted her jewelry (including jewelry he gave her) to Tea. The photo evidence allegedly showing what Mirelica owned during the marriage and Branko’s guess that it’s worth $100,000 just isn’t reliable.

2. Branko’s Jewelry and Cash

[60] Branko’s position is that Mirelica has kept his jewelry worth $50,000 and cash, coins, and savings bonds worth about $100,000. He seeks to add $50,000 for jewelry to Mirelica’s valuation date assets and deduct $35,000 from his date of marriage assets. Mirelica denies having Branko’s jewelry or the cash.

[61] Branko has failed to prove his claim. His allegation rests on the speculation that his jewelry and cash is somewhere in the matrimonial home or in the safe in the garage. Again, Branko had the onus of proving this claim. Again, he’s provided no receipts or appraisals for the jewelry (there’s also a dispute about whether Branko actually had any of the jewelry he now says is somewhere in the home). He could’ve asked for some documentation about the bonds, but he adduced no such evidence. He should’ve moved for a temporary order to search the home if he was so sure that there was $150,000 in jewelry and cash there. It doesn’t make common sense that he would visit the house once, take some possessions, but then never try (other than asking at conferences) to get the jewelry or cash (worth $150,000) in the intervening two years of litigation (especially since he’s not been subject to a restraining order since August 2021).

3. Branko’s Croatian Land

[62] Branko’s position is that he owned land in Croatia with his relatives worth $7500 on the date of the marriage, which he submits should be a deduction. He candidly admits he hasn’t proven this claim. He relies on the fact that he’s estimated its worth and agrees to Mirelica’s estimates of her Croatian property (even though she didn’t prove that claim). Mirelica opposes this deduction. Branko hasn’t proven this deduction. It doesn’t matter that he conceded her claim on a different property. He still has to prove his claim for this deduction.

4. Branko’s RRSP

[63] Branko’s position is that he had $13,500 in RRSP savings at the date of the marriage. He relies on his 1999 income tax return, which shows that he contributed $4000 to his RRSP for the 1999 tax year. Generally, the RRSP contribution period is the last 10 months of the tax year (March to December 1999) and the first 60 days of the next year (January 1, 2000, to March 1, 2000). Though Branko testified that he contributed every year and topped them up at the end of the contribution period, he couldn’t remember when he contributed that year. He admitted it could have been after the parties were married in October 1999. Again, it’s Branko’s onus to prove this deduction. Given his admission that it could’ve happened sometime between October 1999 and February 2000, he hasn’t proven the deduction.

5. Branko’s Bank Accounts

[64] Branko’s position is that he had $118,500 in his bank accounts at the date of the marriage. He has no documents to support this deduction. Though I acknowledge that banks may not keep records that far back, I’m not prepared to infer that Branko had this sum. He wants me to rely on his $64,000 payment towards the business loan he got for the building on Brighton Road, his expenses in relocating Mirelica and Tea in Canada, and his income tax claim of $1357.69 in interest that year. This evidence is insufficient, on a balance of probabilities, to prove this deduction. It’s too unreliable. He could have paid off the business loan from another asset or debt. There’s no receipts for the expenses he incurred relocating Mirelica and Tea to Canada. I have no way of knowing what the income tax claim is. As a result, Branko hasn’t proven this deduction.

6. Branko’s RRIF

[65] Branko’s position is that there should be a notional deduction of 25% for income taxes for his RRIF. He says that once he realizes the equity in the matrimonial home, his marginal tax rate will increase. Mirelica’s position is that it should be 12%. There was little evidence or argument on this issue. Given that Branko’s effective tax rate for his 2022 tax year was 12.1%, I find that the deduction should also be 12.1%. Branko’s evidence of his anticipated marginal tax rate is speculative.

7. Branko’s Dodge Caravan

[66] Branko asserts that he owned a 1996 Dodge Caravan on the date of marriage. He seeks a deduction of $11,000 for this asset. The issue is that Branko didn’t adduce any evidence about the value of this car. He says it’s worth $11,000 based on “Blue book for cars, trucks, whatever”. This evidence is unreliable. As a result, he hasn’t proven this deduction.

C. Issue #3: should Branko pay spousal support to Mirelica?

[67] A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, such lump sum or periodic sums as the court thinks reasonable for the support of the other spouse. See Divorce Act, s 15.2(1). The court may make an order under section 15.2(1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions, or restrictions in connection with the order as it thinks fit and just. See Divorce Act, s 15.2(3).

[68] In making an order under section 15.2(1), the court shall take into consideration the condition, means, needs, and other circumstances of each spouse, including: (a) how long the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement, or arrangement relating to support of either spouse. See Divorce Act, s 15.2(4).

[69] There are three dimensions to spousal support: (a) entitlement; (b) amount; and (c) quantum.

1. Entitlement

[70] There are three bases for spousal support: (a) contractual; (b) compensatory; and (c) non-compensatory. See Bracklow v Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420, at para 37. Mirelica seeks spousal support on a compensatory and non-compensatory basis.

[71] Compensatory support aims to provide equitable sharing of the economic consequences of marriage. The goals of a compensatory award are to provide some compensation for economic loss or disadvantage experienced by the recipient spouse as a result of the roles adopted during the marriage or following separation, or for the economic benefits which the payor spouse derived from the claimant’s sacrifices and contributions, for which the claimant has not been adequately compensated. See Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, at paras 68-70; Bracklow, at para 18. A compensatory award recognizes that such sacrifices, contributions, and benefits experienced or conferred often lead to interdependency between the spouses and merger of their economic lives. See Cassidy v McNeil, 2010 ONCA 218, at para 71. Compensatory support can be used to compensate a spouse for diminished earning capacity or loss of future prospects. It can also be used to allow the spouse to share in economic advantages enjoyed by the other spouse that their sacrifices made possible. See Thompson v Thompson, 2013 ONSC 5500, at paras 55-58.

[72] Compensatory support responds to two objectives under the Divorce Act: (a) recognizing the economic advantages or disadvantages arising from the marriage or its breakdown (s 15.2(6)(a)); and (b) apportioning financial consequences arising from the care of any child of the marriage beyond any obligation for support of any child of the marriage (s 15.2(6)(b)).

[73] Non-compensatory support is often called the “means and needs” approach: it aims to narrow the gap between the means and needs of the spouses. The need of the recipient spouse may arise because of health-related challenges, the roles they adopted during the relationship, or because a status quo developed over time with the party being out of the workforce. See McBennett v Danis, 2021 ONSC 3610, at para 356; Shen v Tong, 2013 BCCA 519, at para 76. Non-compensatory support is based on the concept of marriage as an interdependent union. As a result, the burden for meeting the needs of a disadvantaged spouse should fall on the former partner, rather than the state. See Bracklow, at para 23.

[74] Non-compensatory support also responds to objectives under the Divorce Act: (a) relieve any economic hardship of the spouses arising from the breakdown of the marriage (s 15.2(6)(c); and (b) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period (s 15.2(6)(d)).

[75] I find that Mirelica has an entitlement to spousal support.

[76] In Croatia, Mirelica worked as a bookkeeper, owned her own home (mortgage-free), and supported her daughter. I reject the implication in Branko’s argument that Mirelica married him “for his money”. When she came to Canada, she worked exclusively for Branik for 15 years. In Moge, the Supreme Court of Canada recognized that a spouse’s contribution to “the operation of a business, typically through the provision of secretarial, entertainment or bookkeeping services” is a relevant factor in granting spousal support.

[77] Mirelica was more than just an employee in the business. Branko described her as a partner and, as discussed above, sought to give her equity in the business. He gave her significant control of the business, including access to all of its bank accounts and signing authority. After the businesses stopped operating, Mirelica used a personal injury settlement to pay some of the companies’ debts. She was more than just a mere bookkeeper. That said, I don’t accept Branko’s evidence that Mirelica caused the Branik business to fail by creating a toxic work environment when Branko was traveling or the more insidious allegation that she either intentionally or negligently mismanaged the companies’ finances. Though Branko led some evidence to support these claims, his oral evidence and documentary evidence was far too thin to prove these allegations.

[78] Working in the Branik business also gave Mirelica valuable Canadian work experience that she’s now leveraged in her consulting business. Mirelica has shown an ability to support herself, having regard for her income, reasonable expenses, assets, and liabilities.

[79] Mirelica’s case is different from Cui v Liwanpo, 2022 ONSC 4549. In that case, the court found that the applicant’s marriage to the respondent was an “economic windfall” totaling $2.5 million. I don’t make the same finding about the economic benefits that Mirelica accrued from marrying Branko. The court also found that the applicant in that case didn’t make a “significant contribution” to the husband’s business. Here, I find that Mirelica did make an impact.

[80] During the marriage, Mirelica was also Tea’s primary caregiver and did most of the household chores. But Tea was 13 when Mirelica and Branko got married—though Mirelica’s child-rearing responsibilities remained, they diminished over time. Tea was an adult by the time the parties separated.

[81] Mirelica earned between $30,000 and $60,000 from the business—it’s unclear whether this was below or above market rates given Mirelica’s experience and education. After separation, she’s earning around the same amount through her consulting business.

[82] Though Mirelica says her career was interrupted because Branko “forced” her to retire, there’s no evidence that she actively resisted this demand. She also seems to have willingly leaned in to being an involved grandparent. That said, the parties, together, funded their retirement lifestyle from the proceeds of the sale of the Branik business and rental income.

2. Quantum

[83] The Spousal Support Advisory Guidelines provide guidance for the appropriate range of support. The quantum and duration ranges generated by the SSAG simply provide a general framework for the exercise of the court’s discretion. It’s therefore open to the court to go above and below the ranges in appropriate circumstances. See Alalouf v Sumar, 2019 ONCA 611, at paras 21-25. See also Kinsella v Mills, 2020 ONSC 4785, at para 107, for a discussion of the applicable principles.

[84] Branko’s rental income and retirement income is $61,000 annually. Mirelica earns $40,000 annually. The SSAG range is between $538 and $718. She didn’t start her business until October 2022. She says she didn’t start working immediately after separation both because of the separation and COVID, which is somewhat reasonable. Though Mirelica may have found it hard to start a new business during the onset of the pandemic, her delay of almost 2 ½ years in doing so isn’t really explained. The province lifted all remaining COVID measures on March 1, 2022. The SSAG range for that period is between $1563 and $2085.

[85] I am ordering spousal support in the low range because Mirelica had few economic disadvantages from the marriage, and she’s since overcome them. She’s now able to meet her own needs—she’s returned to where she would’ve been in the labour market and can achieve the appropriate standard of living. Mirelica has also had the use of the matrimonial home for a long time, which reduced her living costs. I endorse an order that Branko shall pay spousal support in the amount of $1600 from October 11, 2019, to September 30, 2022. I further endorse an order that starting October 1, 2022, Branko shall pay Mirelica spousal support in the monthly amount of $550. Mirelica will prepare a support deduction order to be issued by the court.

[86] The parties’ lawyers shall calculate the net of tax value of periodic payments of $1600 monthly for the periods from October 11, 2019, to September 30, 2022, and advise the court of the total value, to be fixed as Branko’s net of tax spousal support arrears as of December 31, 2022.

3. Duration

[87] The SSAG suggest that where the recipient’s age plus the duration of the relationship are greater than 65—as with Mirelica—an indefinite award is appropriate. I’ve been provided no compelling reason to depart from the SSAG. See Djekic v Zai, 2015 ONCA 25, at para 9. As a result, I decline to order a termination date.

[88] Branko argues that his sources of income will end or be depleted in a few years. Branko is speculating. To the extent there is a substantial change in circumstances, Branko can move for a variation order.

4. Other Terms

[89] Mirelica proposes several other terms that Branko didn’t make submissions on, so I presume they’re unopposed. I order that:

(a) the amount payable shall be increased annually on the order’s anniversary date by the indexing factor, as defined in subsection 34(6) of the Family Law Act, for November of the previous year;

(b) Branko shall purchase a life insurance policy in an appropriate amount to secure the spousal support payments ($50,000), and designate Mirelica as a beneficiary of that policy; and

(c) the spousal support provisions of this order shall form a first charge against Branko’s estate if there is insufficient life insurance at the time of his death to satisfy his remaining spousal support obligations.

D. Issue #4: should Branko be restrained from contacting Mirelica?

[90] On application, the court may make a final restraining order against a spouse of the applicant if the applicant has reasonable grounds to fear for their own safety. FLA, s 46(1), (2). The applicant’s fear may be entirely subjective so long as it’s legitimate. It’s unnecessary for a spouse to have actually committed an act, gesture, or words of harassment to justify a restraining order. It’s enough if an applicant has a legitimate fear of such acts being committed. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See Yenovkian v Gulian, 2019 ONSC 7279, at para 45; Gill v Gill, 2023 ONSC 5882, at para 179.

[91] Mirelica says she fears for her physical safety because: (a) Branko threatened her and her family with a knife and uttered death threats; (b) he’s been previously charged or convicted of assaulting his ex-wives; and (c) he’s been stalking Mirelica. Mirelica relies on Tran v Tran, 2022 ONSC 3393. In that case, one of the factors the court considered was that the respondent, as here, had been charged with assault. But, in that case, there was other evidence not present here: at the time of trial, there were temporary restraining orders in place and the applicant’s uncontested evidence was that the respondent persistently threatened to “kill her”.

[92] Mirelica’s request is dismissed. There’s no evidence of “persistent” conduct that justifies a restraining order. I acknowledge that Branko’s actions in October 2019 caused Mirelica to fear for her safety. His past conduct is unacceptable. But since he was criminally charged, there’s no evidence that he has harassed or threatened Mirelica (or even tried to contact her or communicate with her). I find his explanation for how he learned about the cars in the home’s driveway to be entirely reasonable. A final order restraining Branko from contacting Mirelica or coming near her would have serious criminal consequences and liberty implications for him. See Jumale v Mahamed, 2022 ONSC 566, at para 121.

E. Issue #5: should Mirelica pay occupation rent to Branko?

[93] Branko claims for occupation rent of $2000 monthly from November 1, 2019, until the home is sold.

[94] Where there is no order for exclusive possession, occupation rent is a common law remedy for balancing competing equities. A claim for occupation rent is discretionary when the trial judge considers it to be reasonable and equitable to do so. See Jasiobedzki v Jasiobedzki, 2023 ONCA 482, at para 15, aff’g 2022 ONSC 1854. Though an order for occupation rent must be reasonable, it need not be exceptional. See Chhom v Green, 2023 ONCA 692, at para 8. The award usually represents half the rent that could’ve been earned had neither spouse lived in the house. See Khan v Khan, 2015 ONSC 6780, at para 11; Doyle v De Sousa, 2023 ONSC 3163, at para 40.

[95] Leaving aside the debate between the parties about whether Mirelica gave herself exclusive possession of the home (see Khan, at para 6) or whether Branko caused his inability to use the home by his criminal conduct (see JB v DM, 2014 ONSC 7410, at para 152), Branko hasn’t proven this claim.

[96] Branko is the one claiming occupation rent. Therefore, it’s his obligation to adduce evidence about the rent that could’ve been earned if Mirelica wasn’t living in the house. Though he says Mirelica should’ve led this evidence, he has the burden of proof. Branko effectively suggests that this court can take judicial notice of the rental rate. I’m not prepared to do that—the fact that the home could’ve been rented for $4000 monthly isn’t “notorious or generally accepted” and I wasn’t provided any “readily accessible sources of indisputable accuracy” to find this fact. See R v Find, 2001 SCC 32, at para 48; Toth v Grigorescu, 2016 ONSC 8080, at para 115. Branko should’ve adduced opinion evidence on rental rates. See Khan, at para 13; Doyle, at para 40.

G. Issue #6: any other credits or adjustments?

[97] In her closing submissions on occupation rent, Mirelica argues for half of the carrying costs of the matrimonial home, including property taxes, insurance, repairs, and utilities. This claim wasn’t made in Mirelica’s application or her draft order. No submissions were made on the amount being claimed. As a result, I dismiss this claim.

[98] Branko claims $2400 for expenses associated with his Rogers account. After he left the matrimonial home, Mirelica and Branko each tried to close the existing account, which was in Branko’s name. But perhaps unsurprisingly for anyone who’s dealt with a Canadian telecom company, they were told different things when each of them called Rogers, resulting in the account being sent to collections. Based on the evidence at trial, Branko’s real complaint lies with Rogers. Rogers told Mirelica to let Branko’s account go into default. The majority of Branko’s expenses seem to be for monthly rental fees that Rogers charges for unreturned equipment. But there’s no evidence that Branko asked for the equipment until May 27, 2021. Mirelica’s evidence is that she returned the equipment after Branko arranged Rogers to send her a packing slip.

[99] At trial, there was some debate between the parties about how to deal with the parties’ possessions such as furniture and heirlooms. I order that the contents of the matrimonial home be divided equally in its current form. I order that if the parties can’t agree, the household effects shall be sold and the proceeds divided equally between the parties.

IV. CONCLUSION

[100] This judgment shall bear interest at the rate of 2 percent per year starting October 11, 2019, and 7 percent per year starting as of the date of this order.

[101] Mirelica shall prepare the draft order. The parties can send it to my judicial assistant to be signed. If Branko disagrees with the form or content of the draft order, Mirelica will come to court for settlement of the order.

[102] The parties will engage in meaningful discussions and negotiations respecting the costs of this trial. If they can’t resolve costs, any party seeking costs will serve, file, and upload to CaseLines costs submissions (2500 words), any relevant offers to settle, and their bill of costs by April 12, 2024, 4pm. The other party’s responding submissions (2500 words) will be served, filed, and uploaded to CaseLines by May 10, 2024, 4pm.

Agarwal J.

Released: March 15, 2024

NET FAMILY PROPERTY STATEMENT

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

**** Elgar Court

$562,500

Industrial Unit

**** Timberlea Boulevard

$530,000

Totals: Value of Land

$562,500.00

$1,092,500.00

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

APPLICANT

RESPONDENT

Household goods

& furniture

Cars, boats,

2014 Dodge Ram 150

$21,005

vehicles

Jewellery, art,

electronics, tools,

sports & hobby,

equipment

Other special

items

Totals: Value of General Household Items and Vehicles

$0.00

$21,005.00

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

Skrak v Skrak, 2024 ONSC 1574

Case Summary