COURT FILE NO.: FS-20-19412-00
DATE: 20240318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Donna Jodi Albaum
Applicant
– and –
Lorne Howard Albaum
Respondent
Avra Rosen and Kelly Eckert for the Applicant
Cheryl Goldhart, Michelle Sample and Victoria Coon, for the Respondent
HEARD: October 30, 31, November 1, 2, 3, 6, 10, 14, 15, 16 and 17, 2023
L. brownstone j.
Introduction
[1] The applicant wife, Donna, and respondent husband, Lorne, had a lengthy marriage and are the parents of two children who are in their twenties. Lorne was the family’s breadwinner for the vast majority of the marriage. Once their children were born, Donna worked part time, and stopped working completely in her field in 2012. The marriage had its difficulties, and the parties separated for a period, not for the first time, in May 2015. Several months later, immediately following their attendance at the rabbinical court to obtain a Jewish divorce, the parties began speaking of reconciliation. They did in fact reconcile some months later.
[2] In February 2016, during their discussions about reconciliation, the parties executed a marriage contract. In broad terms, the agreement provided that in the event of another separation, Donna would be granted ownership of the matrimonial home and its contents. In June 2016, the parties executed an amendment to the agreement, setting out the treatment of a loan secured against the home and providing for a penalty to be paid by Lorne in the event he engaged in further infidelity.
[3] The parties separated again in September 2018 when Donna learned that Lorne’s affair had resumed. Donna asked Lorne to leave the matrimonial home, which he did. She started this litigation in 2020.
[4] Lorne argues that the two marriage contracts comprise one contract, which he seeks to set aside, primarily on the grounds that he executed it under duress and that its terms are unconscionable. He sees the entire contract as a penalty.
[5] The court must determine whether the marriage contract is enforceable and, if it is, what goods are included in the matrimonial home’s contents that Donna is to receive under the contract. The other issues to be determined are equalization (to be determined regardless of whether the contract is set aside), spousal support, and support for the parties’ younger child, who is in his final year of professional school. The parties also seek a divorce.
[6] The issues can be broken down as follows:
Should the marriage contract be enforced?
What is the equalization payment owing between the parties?
What spousal support is payable, prospectively and retroactively?
How should the parties’ son’s tuition and educational expenses be paid?
Have the parties met the requirements for a divorce?
Issue One: Should the marriage contract(s) be enforced?
[7] To understand the marriage contracts and their negotiation, some background about the parties, their lifestyle, and their relationship is required.
The parties
[8] The parties were married on November 19, 1989. Other than a brief period of separation in the early years of their marriage, they lived together with their two children (once born) until 2015. In about June 2015, Lorne moved out of the matrimonial home.
[9] Donna was licensed as a dental hygienist in Ontario in 1990. In the early years of their marriage, she worked full time and earned more money than Lorne did. After their first child was born in late 1995, she spent a year on maternity leave and then went back to work two days a week. Their second child was born in September 1997, after which Donna took a one-year maternity leave. By that time, Lorne’s business had “started to take off”, and the couple agreed that she could work only the minimum amount to maintain her license, four hours per week. She continued this work until 2012, when she gave up her license and ceased working. A new quality assurance program had been introduced by her regulatory body, compliance with which was more time-consuming than her total work hours. In addition, she wanted to be free to travel. The couple had a discussion, and Lorne agreed that she could do whatever made her happy in terms of whether to keep or give up her license.
[10] Lorne was called to the Ontario bar in 1990. He held various jobs in the legal profession, and in about 1998, he started a “mini-tender” business. The business involves profiting from making discounted bids to purchase up to five percent of the shares of publicly traded corporations. Lorne remained licensed by the law society, but his legal work was generally confined to that required to support his business. The business involved risk, and not every tender was successfully concluded, but the business overall was very successful. It was the mini-tender business that was by far Lorne’s main source of revenue and that funded the parties’ lifestyle. Lorne was the family’s main breadwinner since the mid-1990s, and the family’s only significant breadwinner from about 1998 forward.
[11] Although Lorne was an involved, engaged, and present father, there is no doubt that Donna was the children’s primary caregiver. She reduced and then gave up her work, with Lorne’s agreement, to care for the children.
The parties’ lifestyle during the marriage
[12] Since 1999, when Lorne’s business began to achieve significant success, the parties and their children lived a luxurious lifestyle. In 2000, they moved into the home they continued to live in until separation. They travelled widely, ate at expensive restaurants, stayed in luxury hotels, drove costly cars, and shopped at high-end stores. The children went to private school, summer camp, and American universities. The parties entertained lavishly. They purchased expensive home furnishings and a Steinway piano and collected art and wine. The parties also purchased private medical care, and Donna had regular cosmetic procedures. Donna also received significant pieces of jewelry as gifts from Lorne.
[13] Donna’s evidence was that there was never a budget for these items; the parties and their children simply purchased what they wanted and travelled and entertained as they wished.
The marital history
[14] The marriage had its difficulties. Lorne was involved in an extra-marital affair for a significant period of time. On three occasions when the affair was confessed or discovered, Lorne bought expensive pieces of jewelry for Donna, which she referred to as “apology gifts” and Lorne in his testimony called “blood diamonds”. Lorne claimed Donna demanded he purchase these gifts as penance; Donna claims she does not believe in penance, and that the first gift was to replace her engagement ring, which was tainted by the affair. The value of those three pieces of jewelry was over $700,000.
Events leading to the signing of the February 5, 2016 marriage contract
[15] In about May 2015, Lorne told Donna he was having an affair. Donna asked him to vacate their bedroom, and Lorne acknowledged in cross-examination that he chose to leave the matrimonial home shortly thereafter. He soon rented an apartment. Donna conceded that she asked for the key to the house back but stated she did not change the locks. Lorne was often at the house for dinner and he could see the children, who were at home that summer, as much as he wished. Lorne acknowledged on cross-examination that he spent time at the home with his son, who was recovering from surgery, and that he ate “a number of” meals there.
[16] In about July 2015, each party retained counsel to assist with drafting a separation agreement. In October 2015, the parties appeared at a rabbinical court to obtain a Jewish divorce. In the parking lot after getting the divorce, the parties had an emotional discussion in which they talked about reconciliation. Donna testified that she advised Lorne he first had to end his other relationship and that they had to build up trust. Lorne testified that in November 2015, his girlfriend moved out of the apartment in which they were living together.
[17] The parties gave similar evidence about the reason for entering into the first marriage contract, the signed version of which I will refer to as the February contract. Donna testified that Lorne was very apologetic and wanted to make her as comfortable as possible. She felt financially very vulnerable and felt the need for security for her and the children in the event the parties reconciled and then the “worst case happened”, being a further marital breakdown. Donna thought of Lorne as a brilliant business mind who would always land on his feet, but she had given up her professional license and knew she could never provide for herself a lifestyle close to what the family had enjoyed during the marriage. In order to obtain this security, she wanted to own the matrimonial home and its contents in the event the marriage ended. Lorne acknowledged and understood Donna’s wish for security.
Negotiations of the February Contract
[18] Lorne negotiated the terms of the February contract with Donna’s counsel. Although he had retained counsel to assist with the separation agreement, he decided to negotiate this contract himself. He testified that his counsel saw the first version of what became the February contract prior to Lorne discharging him. On December 11, 2015, Lorne advised that his counsel was no longer acting for him, and that he understood Donna’s counsel had been instructed to amend the contract. He asked that it be forwarded to him directly.
[19] A series of exchanges and draft contracts followed between Donna’s counsel and Lorne. Lorne sought an amendment to how any growth in the value of the matrimonial home would be dealt with. On December 23, 2015, he sent an email explaining his request. He stated as follows:
I have reviewed the draft marriage contract and I believe that you have misunderstood our understanding.
In simple terms this is how it is to work: Donna and I have agreed to fix the value of the home as at a particular dated [sic] (V-date). She retains full ownership of the home. Any increase in the value of the home that is effected upon a sale in the future is shared 50/50 net of any costs associated with the sale, in the event of divorce or separation, but the increase is only split upon sale. For example, if the value on V-date is $2.5 million and Donna and I separate and/or divorce 2 years from the V-date, but the house is sold 20 years later for $3.5 million, Donna receives $2.5 million plus $500,000 (being 50% of the increased value).
I hope that this clarifies things.
[20] Upon request for further clarification from Donna’s counsel, Lorne wrote:
Whether we reconcile or not, the value of the home is fixed as at the particular date. We are moving the starting line forward. It is as if Donna entered the marriage with, for example, $2.5 million in assets, that I cannot touch.
Since I will be paying for the maintenance of the house and the mortgage, we agree that I share 50/50 in any gain going forward until the house is sold. If it is sold after my death my interest would go to my estate. Similarly if the house is sold for less than $2.5 million I would get nothing.
[21] Donna obtained an opinion on the value of the home, with which Lorne agreed. Donna’s counsel amended the contract in accordance with Lorne’s request. He replied with further comments about accounting for the current mortgage on the home and future payments to be made on the house. Upon receipt of the next draft, which incorporated his requested changes about the mortgage, Lorne asked for his share of the proceeds of the home to be included in his net family property (“NFP”), and asked that the contents of the home exclude all of his personal property. He did not want specific personal property “to be spelled out in the agreement”. The agreement was amended as Lorne requested.
[22] Donna’s counsel sent Lorne emails asking if he intended to retain counsel and/or seek independent legal advice. Lorne was clear that he did not intend to retain counsel or secure independent advice before signing the contract.
The February Contract
[23] The fifth and final version of the agreement was executed on February 5, 2016. Specific portions of the February contract will be reproduced throughout these reasons. At this time, some of the provisions regarding the matrimonial home, legal advice, and the acknowledgment signed by Lorne are important to note.
[24] Donna’s claim to the matrimonial home was the most financially significant portion of the contract. It provided, in relevant part:
4.1 Notwithstanding that Donna and Lorne occupied 86 Aldershot Crescent, Toronto, Ontario as their matrimonial home during their marriage and at separation, and that such property may be a matrimonial home again, should Donna and Lorne reconcile, they have agreed that:
a) The matrimonial home, any income generated from matrimonial home, and any assets into which the proceeds from the sale of the matrimonial home can be traced, including any property acquired in substitution of it, will at all times remain the exclusive property of Donna since separation and throughout the marriage and upon any further breakdown of the relationship.
b) The matrimonial home will at all times be excluded from an equalization or division of net family property of the parties and under no circumstances will the matrimonial home be included in the net family property of Donna or subject to equalization in accordance with the Family Law Act or any other applicable legislation or law, now or in the future, in law or in equity. Lorne will not claim nor be entitled to an equalization of the matrimonial home, or to a division of the matrimonial home at any time upon any further breakdown of the relationship.
4.2 In consideration of Lorne's waiver to any interest in the matrimonial home and to Donna's exclusion of the matrimonial home as an asset in her net family property, Donna and Lorne have agreed that:
a) They have secured an opinion of value of the matrimonial home as at January 1, 2016, and agree that the value of the matrimonial home at January 1, 2016 shall be fixed at $2.888 million, less the existing mortgage registered in favour of HSBC in the sum of $295,000, less real estate commissions fixed at 4% together with HST ($130,538), less legal fees and disbursements fixed in the sum of $1,500, for a current net value of $2,460,962. The agreed calculation of the net value of the matrimonial home at January 1, 2016, is set out in Schedule A, attached to this Contract.
b) Effective January 1, 2016, Lorne shall be solely responsible to pay all expenses in relation to the matrimonial home, including all mortgage payments, realty taxes, property insurance, maintenance costs, necessary repairs, utilities or similar carrying costs of the matrimonial home, which payments shall be made by Lorne directly to the mortgagee and third-party service providers. In the event that Donna is obliged to pay for any expenses in relation to the matrimonial home, Lorne shall reimburse Donna for such payments, within 5 business days of receiving the invoice and proof of Donna's payment from her.
c) Lorne shall be entitled to 50% of any increase in the net value of the matrimonial home in excess of $2,460,962 to the date of the closing of the home so long as he has maintained his payments on the home to the date of closing, less the actual payout for the discharge of the mortgage, less the actual real estate commissions together with HST, less the actual legal fees and disbursements, which amount shall be paid to Lorne from the sale proceeds of the matrimonial home on its closing. An example of the calculation of the net value of the matrimonial home as at the date of closing on the premise that Lorne has maintained his payments for the home to closing, is set out in Schedule A to this Contract. Donna and Lorne acknowledge and agree that neither the increase in the gross value of the matrimonial home in excess of $2.888 million nor the amount owed by Donna to Lorne if any, shall be included in Donna's net family property. Donna and Lorne further agree that the payment owing by Donna to Lorne shall be included in Lorne's net family property.
c) (sic) Lorne waives all rights under Part I of the Family Law Act and all other rights that he has or may acquire under any other applicable legislation or law, now or in the future, in law or in equity, to the matrimonial home.
d) This paragraph may be pleaded and is a complete defence to any claim, application or other court proceeding by Lorne for an equalization of the matrimonial home or any other proceeding involving a claim for a division of the matrimonial home.
[25] In respect of legal advice, the contract contained the following clauses:
5.16 Donna has had independent legal advice from Avra Rosen. Lorne is a lawyer and has been told to obtain independent legal advice, has had the opportunity to obtain independent legal advice, and has declined it.
5.17 Lorne acknowledges that Donna and her lawyer have recommended to him that he seek independent legal advice regarding the Agreement, and that he has been given the opportunity to seek such legal advice. Notwithstanding such recommendation, Lorne acknowledges and declares that he wishes to enter into this Agreement without the benefit of independent legal advice and acknowledges and declares that the terms of this Agreement correctly set out his wishes and intentions.
5.18 Lorne acknowledges that Donna’s lawyer is the solicitor for Donna and not the solicitor for him, and not the solicitor for Donna and Lorne together.
5.19 Donna and Lorne:
a. have read the Agreement in its entirety and have full knowledge of the contents;
b. understand his or her rights and obligations under this Agreement and its nature and consequences;
c. acknowledge that this Agreement is fair and reasonable;
d. acknowledge that they are not under any undue influence, duress or coercion; and
e. acknowledge that each is signing this Agreement voluntarily.
[26] In addition, Lorne signed an acknowledgement that he was “fully aware of the nature and effect of the said Marriage Contract and [his] rights and liabilities thereunder and that [he] executed the said Marriage Contract of [his] own volition and without fear, threats, compulsion or influence when joint album or any other person.”
[27] The contract contained no provisions about spousal or child support; it was not intended to be a comprehensive agreement covering all issues between the parties in the event of marital breakdown.
The amending agreement
[28] An amending agreement was signed by the parties on June 14, 2016. It was titled an “amending agreement to a marriage contract dated February 5, 2016”.
[29] The amending agreement provided that the February contract is in full force and effect. It specifically stated that Donna continues to remain the sole owner of the matrimonial home, and the parties reaffirmed section 4 of the February contract, the section that dealt in detail with the matrimonial home.
[30] At the time of the amending agreement, Donna owed over $500,000 of income tax to Canada Revenue Agency as a result of the activities of the various corporations of which she was a shareholder, the ownership structure of which is described more fully in paragraph 132 below. Lorne proposed raising the funds to pay the tax by securing a home equity line of credit against the matrimonial home. Donna was anxious about this, given that the house was her asset under the February contract, so the amending agreement specified that the liability would be paid jointly by the parties and discharged during the marriage. If the marriage were to break down before the loan was discharged, the parties would equally share the obligation to pay the outstanding balance. Secondly, the amending agreement sought to impose a $400,000 payment from Lorne to Donna if he should commit adultery again.
[31] Like in the February contract, the parties agreed that the amending agreement is a marriage contract as provided for in s. 52 of the Family Law Act, R.S.O. 1990, c. F.3.
[32] The amending agreement contained identical provisions and an identical acknowledgement regarding Lorne’s decision not to seek independent legal advice as those contained in the February contract.
[33] Both contracts contain a severability clause that provided:
Except as otherwise provided in this Agreement, the invalidity or unenforceability of any term of this Agreement does not affect the validity or enforceability of any other term. Any invalid term will be treated as severed from the remaining terms.
[34] The issue of the loan on the house provided for in the amending agreement was moot by the time of trial. The only operative provision would have been the $400,000 payment in the event of infidelity, and Donna did not seek to enforce that provision. Therefore, Donna only asks the court to enforce the terms of the February contract.
Position of the Parties
[35] Lorne’s position is that the February contract and the amending agreement should be treated as a single contract and should be set aside, as he signed it under duress, its terms are unconscionable, and it is void for public policy reasons.
[36] Lorne acknowledged “pretty comprehensive” financial disclosure was made before the marriage contract was negotiated, and he does not seek to set aside the contract on the basis of non-disclosure.
[37] Donna’s position is that the contracts are two separate agreements, only the February contract is in issue, Lorne freely entered into the contract and was not under duress, the terms are not unconscionable, and there is no is no reason in fact or law to set the contract aside.
[38] Donna objected to Lorne being permitted to answer questions regarding why the marriage contract should be set aside. She also objected to the admission of correspondence between counsel for both parties that provided the background and chronology for that objection. I permitted the documents to be entered as exhibits. The correspondence between counsel was not entered for the truth of its contents, but to demonstrate the discussions that had occurred on the very subject the court was being asked to decide. Some of those discussions were about Lorne returning to questioning about the marriage contract. I therefore permitted him to testify about the facts underlying his position that the contract should be set aside.
Credibility
[39] My analysis of the parties’ credibility underlies many findings of fact. I will on occasion provide specific examples, but it is helpful to set out my overall findings on credibility at this stage.
[40] Assessing credibility is a complex task. It requires the court to consider many factors, and to do its best to explain “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20. Nor is credibility an all-or-nothing assessment. The court may accept some, none or all of a witness’ evidence: R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 at paragraph 93. The assessment of credibility is a “holistic undertaking, incapable of precise formulation” (Dunford v Hamel, [2018] ONSC 3427 at para 20). The 2021 decision of McBennett v Danis, 2021 ONSC 3610 at para 42 lists various factors to be considered in undertaking the assessment, which include inconsistencies in the evidence, whether the evidence is inherently improbable and implausible, whether a witness is straightforward or “evasive, strategic, hesitant or biased”, and whether a witness is able to make concessions, or gives self-serving evidence.
[41] I found Donna to be a largely credible witness. While there may have been an occasional understatement or exaggeration (such as, for example, not having been angry upon discovering a cheque was used for Lorne’s girlfriend’s expenses in 2018), her evidence was by and large measured, straightforward, and in keeping with the documentary evidence and common sense. I accept much, but not all of her evidence, as will be specified below.
[42] Lorne’s evidence, on the other hand, often defied credulity. He had difficulty answering straightforward questions. When it was suggested to him that he was a sophisticated businessman, he hesitated and then answered, “I work hard at what I do.” He acknowledged that his sworn financial statements provided throughout the proceeding do not provide an accurate picture of his income and expenses. In cross- examination, he was confronted with the fact that contrary to the sworn figures in his financial statement, between August 2022 and July 2023, there was not a single month in which his income matched the $25,000 figure he swore was his monthly income. He answered, “the cheques cut do not reflect $25,000 withdrawal”. When pressed by counsel to confirm that meant he was agreeing with her, he stated, “I answered your question”. Similarly, when asked to confirm that the acknowledgement he signed that he was not under duress when entering into the contracts was true, Lorne answered by confirming he signed the acknowledgement.
[43] When asked if he agreed that the children, who were teenagers at the time, were devastated when he told them he was having an affair and leaving the family in May 2015, he said, you would “have to ask them.” He denied knowing his son had trouble dealing with it, or that he had a difficult first year at university. When asked if he apologized to his son in December 2015, he said “maybe”. When asked if he told his son he would never hurt his mother again, he said he did not remember. When asked if his relationship with his son was never the same after that, he acknowledged it had changed but said ‘all relationships do”. When asked about another deeply personal conversation with his son after Lorne had received treatment in 2017, he said he did not remember the conversation, but it would not surprise him. He did not remember what his son said about the impact of his actions on his son. Yet, at another point, he was quite certain that it was Donna who was interfering with the relationship between him and his son, and that his son does not respond to him or see him because he is living with Donna.
[44] I have significant credibility concerns with Lorne’s evidence. I found him to be generally evasive and self-serving in his answers. Further specific examples will be provided throughout the analyses below.
Is there one contract or two?
[45] Lorne advances two bases for treating the contract as a single agreement. First, he argues that the consideration for entering into the contract, his return to the matrimonial home, did not “flow” until after the amendment was signed. Therefore, there was no consideration for the first contract. He argues that there was one bargain across two documents.
[46] Second, Lorne argues that the transaction between the parties was akin to “a complex commercial transaction [in which] each agreement is entered into on the faith of … others being executed”: Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, 268 O.A.C. 279, at para. 16. He urges the court to treat the two contracts as one, and to see the unenforceable penalty clause in the amending agreement as a symptom of the entire agreement.
[47] That is, Lorne argues that the $400,000 penalty provision in the amending agreement is unenforceable under s. 56(2) of the Family Law Act, and that Donna would not be able to enforce it even if she tried. Lorne also argues that the “penalty clause”, whereby he was required to pay $400,000 in the event of future infidelity renders the entire contract unconscionable and unenforceable. In his view, the whole contract is a penalty, in that it exacted a price to get back into the marriage. He argues that the transaction as a whole must be seen in the context of the parties’ relationship and past behaviours; he characterized the relationship as one of crime and punishment. He would engage in extra-marital affairs (the crime) and would have to buy an expensive gift or provide Donna with money to atone (the punishment). In this circumstance, he engaged in his usual “crime”, and the marriage contracts were the “punishment”. He argues that although Donna does not seek to enforce the penalty clause, her concession does not save the entire agreement between the parties, comprising both contracts, from being unconscionable as drafted, in that they are punitive contracts.
[48] I reject these arguments. In terms of consideration, as will be explained below, I find that Lorne and Donna had fully reconciled and that he had moved into the matrimonial home, or was free to do so, before he signed the amending agreement in June 2016. Consideration therefore flowed before the parties entered into the amending agreement.
[49] Further, I do not accept that the two contracts are a single transaction “that operated to punish Lorne for his marital offences.” I find that each transaction was entered into based on the parties’ situation at the relevant time. Each party sought to further their own goals. Lorne wished to reconcile, and Donna, while also wanting to reconcile, wished to protect her financial future. The amending agreement was required in part because Donna had a large tax liability that needed to be paid by encumbering the matrimonial home. This significantly decreased the equity in the home that was to be her security in the event the marriage broke down, as agreed to in the February contract. Lorne testified that he knew that Donna was seeking security in the event the marriage broke down in the future and that he understood her desire for security.
[50] The “factual matrix” upon which Lorne urges the court to rely to conclude this was a single transaction in fact leads to the opposite conclusion. The factual matrix changed after the first agreement was entered into, necessitating the amending agreement. It became necessary due to Donna’s tax liability and the encumbrance to the matrimonial home that was required to pay that liability. They were two separate transactions. There is no need to refer to the amending agreement to interpret the terms of the February contract. There was no evidence that a further agreement was contemplated at the time the February contract was executed.
[51] The factual matrix was also one in which, as Lorne acknowledged, Donna was concerned about her financial security should the parties separate in the future. He was the sole breadwinner, and his actions alone determined the family’s financial position. Donna had lost trust in Lorne, and wanted to protect herself and ensure some security for herself in the event their reconciliation did not last.
[52] I find that these are contracts entered into to provide security to Donna, not to punish Lorne. I reject the characterization of the contracts as penalties based on the facts before me. I have found that the contracts are two separate contracts.
[53] I further note that both agreements contained severability clauses, clauses with which Lorne clearly was very familiar. In his evidence, when asked about the clauses, he referred to them, unprompted, as severability clauses. His argument that both contracts must be treated as one indivisible document that must be rejected in its entirety requires the court to ignore these clauses. This is inconsistent with the rules governing contractual interpretation that require the court to give words their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 at para 47.
[54] Given that the amending agreement is moot in respect of the loan secured on the house, and given that Donna does not seek to enforce the other purportedly inoperative provision of that contract, I will consider only the February contract from this point forward.
Should the February contract be set aside?
[55] As stated above, Lorne argues that the agreement should be set aside for reasons of duress, unconscionability, and public policy. He also argues that he did not understand a portion of the contract. Lorne acknowledges that the contract is a domestic contract that fulfills the requirements of the Family Law Act and takes no issue with the disclosure that was made before he entered into it. However, he asks the court to set it aside under s. 56(4) of the Act. That subsection provides the following:
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[56] In LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 51, the Court of Appeal for Ontario confirmed the two-step process for setting aside a domestic contract under s. 56(4). The court first determines whether the party who seeks to set aside the contract can demonstrate that one or more of the circumstances set out in the subsection has been engaged. If so, the court continues to the second step, in which it decides whether to exercise its discretion in favour of setting aside the agreement.
Has Lorne shown that a circumstance in s. 56(4) has been engaged?
[57] Lorne acknowledges that he bears the burden of demonstrating that s. 56(4) is engaged. He specifically acknowledged, in argument, that the court should generally respect private arrangements made by spouses for the division of property on the breakdown of a relationship, in accordance with Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, at para 9.
S. 56(4)(b) – Lorne did not understand s. 4.2(c) of the February contract
[58] Lorne relies on s. 56(4)(b) in respect of the final sentence of s. 4.2(c) of the February contract. That contractual provision contains wording, added at his request, that in the event of separation, his share of the increase in the value of the matrimonial home after the valuation date would be included in his NFP, while Donna’s would not. He argued that he did not understand the nature and consequence of that provision. At trial, he explained that he, in effect, got his request backwards. He did not wish his increase in value to be subject to equalization, while Donna’s was not. Donna’s counsel did not confirm he understood this provision when he requested its insertion.
[59] Donna does not seek to enforce this provision and agrees that the growth in the value of the home should be treated consistently for both parties. Lorne argues that Donna’s after-the-fact concession was made in attempt to make the contract more palatable. That cannot and does not save it from being an unconscionable agreement, in Lorne’s submission. However, if the February contract is not entirely invalidated, he accepts Donna’s concession that his portion of the growth of the value of the home not be included in his NFP.
[60] I accept that Lorne did not understand this provision and “got it backwards”. However, I do not find that this invalidates the entire contract. In light of the consent of the parties and the severability clause, this provision will be of no force and effect.
S. 56(4)(c) – Should the contract be set aside in accordance with the law of contract?
[61] Lorne relies on s. 56(4)(c) in support of his argument that the contract should be set aside on the bases that he was under duress, the contract is unconscionable, and the contract is contrary to public policy.
Duress and undue influence
Position of the parties
[62] Lorne testified that he “had a gun to his head” with respect to signing the contract, as he was not permitted to make his way back into the marriage or the family home unless he signed it. On the day of the religious divorce in October 2015, when the parties started discussing reconciliation, Lorne states he had no bargaining power. Objecting to Donna’s terms would jeopardize his chance of returning to the family. His evidence was that when the parties started talking about reconciliation immediately following the religious divorce, he was prepared to do whatever was necessary to reconcile.
[63] Lorne argues that he was desperate to return to the marriage and the house, and Donna held the literal and figurative keys. Lorne points to Donna’s evidence that she was so worried about him in December 2015 or January 2016 that she and one of the children drove to his apartment to check on him.
[64] Lorne acknowledged that Donna wanted financial security. He testified that he was amenable to her desire for security, that he wanted to make her comfortable, and that Donna had a significant need to rebuild trust and to feel secure. He was agreeable to providing her this security because he wanted to salvage the marriage and return to the life they had had. Although he acknowledged that he engaged in back-and-forth communications with Donna’s counsel about the terms of the contract, he stated that if he had not signed the agreement, there was no chance of reconciliation.
[65] Donna denies that Lorne was under duress, or that she had or exerted any undue influence. The parties freely negotiated the contract to obtain their goals.
[66] Part of Lorne’s argument that he was under duress at the time of signing both contracts relies on his assertion that he was not permitted to return to live in the matrimonial home until he had signed both contracts. Donna’s evidence was that Lorne returned to the home around the time that the family travelled to Europe, in about March 2016, between the dates the two agreements were signed. I therefore turn to the evidence on this issue.
When did Lorne return to the matrimonial home?
[67] Donna states that Lorne moved back into the matrimonial home in March 2016. On questioning, she said she did not remember the exact date Lorne returned. About two months before trial, Donna advised through her counsel that she recalled that Lorne had moved back in around March 2016. In her examination in chief at trial, she explained that when she was reviewing photographs on her phone and saw that the family had travelled to Europe together in March 2016, she knew she would not have travelled with the family all together had she and Lorne not been back together. Therefore, in the summer of 2023, she advised counsel of her recollection that he had moved back into the matrimonial home around the time of their return from their trip to Europe in March. She conceded that while they were in Europe, Lorne came back to Toronto for a few days and did not stay in the home. Lorne conceded that he did not ask Donna if he could stay there for this trip.
[68] I do not accept Donna’s evidence on this issue. She acknowledged that she and Lorne had also travelled together to see the children in November and December of 2015 in New Orleans and St. Louis, where they were studying. She and Lorne stayed together in hotels, were intimate, and presented themselves to the children as a couple. They also travelled to New York and San Francisco together during this time. On both parties’ evidence, Lorne had not moved back into the matrimonial home at the time of these trips.
[69] I therefore do not accept Donna’s evidence that she would not have travelled to Europe with Lorne and been intimate with him if he had not moved back into the matrimonial home.
[70] Lorne states that he was not allowed to move back into the house until he signed the amending agreement in June 2016.
[71] As of May 17, 2016, Lorne advised the leasing agency for the apartment in which he was living that he would be moving. He testified that he actually moved out of the apartment in July 2016 and emptied his storage locker then.
[72] On June 2, 2016, Donna’s counsel sent an email to Lorne indicating her understanding that the parties had reconciled, and that as a result of the reconciliation, there would be some minor amendments to the February contract. Lorne’s evidence was that the email meant they were reconciled, but not fully so, because he was not fully back in the home.
[73] The amending agreement itself, a draft of which was included with the June 2, 2016 correspondence from Donna’s counsel, states that the parties have reconciled since signing the February contract, and that “they reside together in [the matrimonial home]”. Lorne denied this was accurate.
[74] Both parties testified that Lorne spent a significant amount of time at the matrimonial home, including sometimes staying overnight there, starting before the amending agreement was signed. Neither party has a specific recollection of Lorne moving back in. He did not hire movers.
[75] I find that Lorne and Donna had fully reconciled prior to signing the amending agreement. I find that Lorne had moved in gradually starting after the February contract was signed, spending more and more time at the matrimonial home. I find that he was free to move fully back into the matrimonial home prior to signing the amending agreement, and certainly by the time the amending agreement was sent to him on June 2, 2016.
The test for duress or undue influence, applied
[76] In order to find duress, “there must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement”: Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, at para. 53. Duress involves coercing the will of, or directing pressure to, a party so that “they have no realistic alternative but to submit”: Ludmer, at para. 53. It can include “coercion, intimidation or the application of illegitimate pressure”: Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72.
[77] Donna gave evidence in cross-examination that at some point, perhaps in the winter of 2016, Lorne became so upset after a telephone conversation they had that she was worried he might harm himself. She and one of their children went to his apartment to check on him. Lorne agreed he did not provide any evidence of his mental state during this time period, and he conceded that his mental state has not been an issue. Nor was there any evidence of a temporal connection between that incident and Lorne’s negotiations of the contract, which lasted close to two months. There was no evidence, or even suggestion, that the night of worry led to any different tactic being pursued by Donna in the negotiations. There was no evidence that this mental state of Lorne’s was more than fleeting. Lorne conceded that this mental state was not an issue in these proceedings.
[78] There is simply no credible evidence of intimidation or illegitimate pressure being brought to bear on Lorne to sign the February contract. He was asked more than once about his decision not to retain counsel; clear language about this was included in the February contract. There was no evidence of any time pressure being brought to bear; indeed, his lease did not expire until August 2016. When he asked for changes to the contract, they were agreed to. I find that Lorne’s assertion in his evidence that he “had a gun to his head” is utterly without foundation. He acknowledged that, notwithstanding his statement that he had a gun to his head, he signed the agreement voluntarily because it was what he wanted.
[79] I find that he was bargaining for something he wanted, seeking and gaining concessions, and had made a determination of what he was willing to give up to get what he wanted. The February contract was a risk he willingly took to obtain an outcome he desired.
[80] I firmly reject the submission, in fact and law, that Lorne was under duress or subject to undue influence in respect of the February contract.
Is the February contract unconscionable?
[81] Lorne argues that the agreement is unconscionable because it results in Donna receiving over 90 percent of the equity of the matrimonial home ($2.4 million as compared to Lorne’s $240,000) and virtually all its contents. This represents a significant portion of the couple’s assets. He was the primary earner after the first few years of marriage. He generated almost all the money that became the equity in the house and almost all the money that was required to maintain the house. The house was the largest asset, outside of the corporations, when the February contract was signed.
[82] Donna’s position is that the parties agreed to the uneven split of the matrimonial home and its contents because they knew that Lorne could always “land on his feet” and would always be able to provide for himself, while she could not. The house and its contents were the only assets she would have, whereas he would be able to create wealth for himself after the marriage breakdown. She states that the reasonableness of this belief is easily verifiable, as Lorne’s personal portfolio increased by a million dollars in the first year of his new corporation’s business, and his new corporation’s income increased from zero to a million dollars in this same time period.
[83] Parties are entitled to enter into contracts to arrange their affairs as they see fit. Courts are to respect the abilities of parties to make their own decisions and organize their own affairs: Hartshorne, at para. 36. Domestic contracts should generally be encouraged by the courts: Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4th) 1, at para. 33. There are, of course, circumstances in which a court will not enforce a contract. Courts must be alive to the particular vulnerabilities that that can undermine the fairness of a domestic contract negotiated during a separation: Anderson, at paras. 3, 34.
[84] The concept of unconscionability in family law is broader than in the commercial context. The question is whether there are any circumstances of oppression, pressure, or vulnerabilities being exploited during the negotiation process that resulted in an agreement that deviates substantially from legislation: Rick v. Brandzema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 44. The courts have used the language of taking advantage of or preying on a weaker party’s vulnerability when assessing unconscionability in a family law context: Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 18 O.R. (3d) 641 (C.A.), at p. 645; Toscano, at paras. 63-68.
[85] Lorne argues that the court should consider fairness as elaborated by the Supreme Court of Canada in Uber Technologies Inc v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118, at the first step of the LeVan two-step process, that is, in determining whether s. 56(4) has been engaged. As the Supreme Court noted, the doctrine of unconscionability is designed to protect those who are vulnerable in the contracting process: Uber, at para. 60. The two components of unconscionability are an inequality of bargaining power and a resulting improvident bargain; both elements are required to find an agreement unconscionable: Uber, at para. 65. Lorne compares his situation in negotiating the marriage contract to the following example given by the Supreme Court in Uber: “When the weaker party would accept almost any terms, because the consequences of failing to agree are so dire, equity intervenes to prevent a contracting party from gaining too great an advantage from the weaker party’s unfortunate situation”: Uber, at para. 69. He notes the “classic example” of this given by the court was a rescue at sea, where the entry into the contract was the result of the party’s “extreme need … to relieve the straits in which he finds himself”: Uber, at para. 70.
[86] I find that if the Uber analysis does apply to the first step under s. 56(4) of the Family Law Act inquiry, it simply begs credulity to apply it to these facts. Lorne was not weak and vulnerable. I find that Lorne was a seasoned and sophisticated person. He wanted something. Donna was understandably concerned about her future. She did not trust Lorne. She wanted something in exchange for what Lorne wanted. Although he said he would have signed anything to return to his marriage and the matrimonial home, I find that this was manifestly not so. He asked for, and received, concessions in the contract that were to his benefit before signing it. I do not doubt that this was a very emotional time for him, as well as for Donna. That is true in many family law cases. It did not result in an inequality of bargaining power, which requires Lorne to prove “the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power”: Segal v. Qu (2001), 2001 CanLII 28201 (ON SC), 17 R.F.L. (5th) 152 (Ont. S.C.), at para. 59, quoting Goodman Estate v. Geffen (1991), 1991 CanLII 69 (SCC), 81 D.L.R. (4th) 211 (S.C.C.).
[87] Nor do I find that Lorne lacked the agency to contract as he wished to simply because of the emotions that were at play in the circumstances: Anderson, at para. 34. Lorne left the matrimonial home voluntarily in June 2015. He changed his mind and wanted to return. He chose not to be represented by counsel during the negotiations despite being repeatedly asked about this decision by Donna and her counsel, and despite having retained counsel to negotiation a separation agreement in June 2015. He signed a contract that expressly acknowledged he was not under duress. He negotiated the contract over a period of several months and received almost every concession he requested. There was full financial disclosure between the parties. The agreement was formalized in accordance with the requirements of the Family Law Act. As noted by the Supreme Court, “statutory formalities serve to impress upon spouses the significance of their agreement and to encourage and preserve the validity of binding family property settlements”: Anderson, at para. 42. Lorne made a calculated decision – either the marriage would last and the agreement would be moot; or the marriage would fail and he would need to re-build his capital.
[88] As stated in Uber, at para. 74, unconscionability requires determining whether the bargain unduly advantages the stronger party or unduly disadvantages the vulnerable party. I have found that Donna was not the stronger party and Lorne was not the vulnerable party. These were two adults making a bargain they could each live with to get what they wanted.
[89] I do not find the facts in this case to be similar to those in Debra Louise Vanbeselaere v. Daniel Gerard Vanbeselaere, 2023 MBKB 67, a case upon which Lorne relies. There, the parties were living together in a farm owned by the husband. The wife was 18 years old and in high school when they started living together. The husband was close to a decade older and established. When the wedding was imminent, the husband left a contract on the counter for the wife to sign and told her there would be no wedding if she did not sign it. She had no money to consult a lawyer. She had quit her job to work on the farm. She signed the contract. Twenty-three years of marriage followed the execution of the agreement. The trial judge found a marked inequality of bargaining power. The husband would have lost only the relationship if the wedding were cancelled, but the wife would have lost her means of employment and financial support in addition to the relationship. The court noted that a threat not to follow through on a promise to marry, without more, is insufficient to constitute duress or oppression.
[90] The facts in the case before me are markedly different. Lorne would have potentially lost the relationship, but nothing else, had he not signed a version of the February contract. The terms were negotiated; they were not dictated by Donna. Lorne had every ability to earn funds and build capital for himself. He was highly educated and experienced. He fully understood the agreement he was entering into (other than with respect to the increase in the value of the house and whether it would be excluded from his net family property).
[91] Given my finding on the first branch of the test that there was no inequality of bargaining power, I need not consider whether the bargain is improvident. However, in the interest of completeness, I will do so.
[92] In Vanbeselaere, the court noted that mere advantage accruing to one party does not amount to improvidence. There must be undue advantage. In that case, such advantage existed in large part because the contract purported to permit the husband to profit from the labour the wife would contribute to the farm for decades.
[93] In this case, Lorne knowingly agreed to give Donna the house and its contents after decades of marriage. It is true that he had made the vast proportion of the financial contributions to the house and its contents. However, in light of their respective earning capacities, the parties agreed to organize their lives such that Lorne would make the financial contributions and Donna would make the lion’s share of non-financial contributions to their home life.
[94] I do not find that the bargain in the February contract is so manifestly unfair as to be improvident. The bargain was made to set the parties in certain positions with respect to their property at a point in time. It does not deal with all family law issues between the parties. Lorne put it well when he explained in an email to Donna’s counsel that their plan was to put Donna in a position as though she had come into the marriage with the matrimonial home and its contents, and Lorne could not touch it. I find that this was because, based on the last two decades of their life together, both parties were confident in Lorne’s ability to create wealth for himself in the future, and not confident in Donna’s ability to do so.
[95] Thus, although the division of property deviated significantly from what Lorne would have obtained under the Family Law Act, I do not find this deviation resulted in any way from circumstances of oppression, pressure, or other vulnerabilities. There was certainly no exploitation of any vulnerabilities during the negotiation process: Toscano, at para. 64; Rick, at para. 44.
Is the February contract contrary to public policy?
[96] Lorne makes the following argument:
The Amended Marriage Contract is contrary to public policy in that it imports the consideration of conduct into the resolution of financial affairs upon the breakdown of the relationship. The Amended Marriage Contract determines the distribution of the parties’ family property on the basis of Lorne’s affairs, rather than on the basis of the equal position of spouse as individual within the marriage as espoused in the preamble of the FLA.
[97] Again, this relies on Lorne’s characterization of the contract as a single contract that punishes him for his infidelity. As set out above, I do not agree with this characterization. At the time the February contract was signed, the parties had separated. Lorne had voluntarily left the matrimonial home and moved in with his girlfriend. When he and Donna discussed the terms on which they would reconcile, each party wanted to further their own interests. Each party decided the basis on which they were willing to reconcile. The circumstances of this case do not come near the level of the rare case in which a contract will not be enforced for reasons of public policy “in which the harm to the public is substantially incontestable”: Tercon Contractors Lid v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 117, citing Chief Justice Duff.
[98] Lorne argues that the contract is incompatible with the Family Law Act. He relies on the legislation’s preamble and overall purpose in support of his argument that the agreement is simply unfair, domestic matters are to be resolved in a way that is fair to both parties, and the contract should be set aside. I find that the principles of autonomy and finality of contract should prevail in this case. Donna’s efforts to protect herself, given that she would be unable to provide for herself in a meaningful way in the future should the marriage end, and Lorne’s desire to be given another chance, led to a negotiated contract. There is simply no reason not to uphold that contract.
Part two of the LeVan test
[99] I find that Lorne does not pass part one of the LeVan test. Section 54 of the Family Law Act is not engaged. For the same reasons I do not find duress or unconscionability, I would not have exercised my discretion to set aside the contract even if he had satisfied part one of the test.
Issue two: What is the equalization payment owing between the parties?
[100] As I have ruled that the marriage contract will not be set aside, I will not deal with Lorne’s claim for a trust interest in the matrimonial home. The parties have agreed on the value of most of the property that is subject to equalization. Disagreements remain about the artwork, the wine, the Getchell gold certificates, and life insurance policies under which the children were the insured.
[101] Donna did not value the contents of the matrimonial home that she claimed were excluded under the February contract. As the courts have held, excluded property must still be valued. Even if the February contract were upheld, the excluded property’s value may be relevant to the spousal support issue: Montemarano v. Montemarano, 2018 ONSC 1481, at para. 47.
[102] I will first consider whether the artwork is excluded property under the February contract.
[103] The February contract’s purpose was articulated as follows:
3.1 With respect to property, Donna and Lorne intend by this Agreement:
a) to restrict or modify their rights and obligations relating to property, as specifically provided herein, that have arisen or that may arise under the Family Law Act, the Succession Law Reform Act, and any other applicable legislation or law, now or in the future, at law or in equity, from their marriage and/or in the event of a breakdown of the relationship. In particular:
a. to make specific provision for the exclusion of the matrimonial home from Donna's net family property, and to provide that the matrimonial home shall at all times remain Donna's sole property, free of any claim by Lorne; and,
ii (sic). to make specific provision for the exclusion of all of the household contents, furniture and artwork in the matrimonial home, from Donna's net family property and which shall remain Donna's sole property, free of any claim by Lorne.
b) to acknowledge that except as otherwise expressly provided in this Agreement, each of them will be entitled to any and all rights and obligations relating to their property that have arisen or that may arise under the Family Law Act, the Succession Law Reform Act, and any other applicable legislation or law, now or in the future, at law or in equity, from their marriage and/or in the event of a breakdown of the relationship.
[104] Section 5 of the February contract dealt with household contents and personal property. It provides:
5.1 All of the household contents, furniture and artwork will remain the exclusive property of Donna, free from any claim whatsoever by Lorne, save and except for all of Lorne's personal property as may be contained in the matrimonial home from time to time, notwithstanding that;
a) the household contents, furniture and artwork were purchased during the marriage out of joint funds for the parties' joint use and enjoyment;
b) the household contents, furniture and artwork may have been purchased from Lorne's own funds;
c) the household contents, furniture and artwork may have been acquired by way of gift or inheritance from Lorne or from a third party.
5.2 The household contents, furniture and artwork will at all times be excluded from an equalization or division of net family property of the parties and under no circumstances will the value of the household contents, furniture and artwork be included in the net family property of Donna or subject to equalization in accordance with the Family Law Act or any other applicable legislation or law, now or in the future, in law or in equity. Lorne will not claim nor be entitled to an equalization of the household contents, furniture and artwork, or to a division of the household contents, furniture and artwork at any time upon any further breakdown of the relationship.
[105] Lorne claims the artwork is not to be included in the household contents because it was purchased by one of the family’s corporations, Tory, Ryan & Co. Inc. On July 31, 2016, less than six months after the parties entered into the February contract, Tory Ryan and two other corporations amalgamated. Jamie Bec was the name of the amalgamated corporation. Interior Expressions, one of Donna’s corporations, had 100 percent control of Jamie Bec. Lorne stated that Tory Ryan purchased the artwork so it could be expensed and depreciated, and the family would not have to account for it as a shareholder loan. In his view, the corporation bought the art and lent it to the couple to display. If the art were sold, the funds would belong to Jamie Bec, Tory Ryan’s successor corporation.
[106] When Ms. Alterman, Donna’s valuation expert, was reviewing all the corporate documentation to provide her report, she was not provided with any information that Jamie Bec owned the artwork until about two months before trial, after her report was prepared. The artwork does not show as an asset on Jamie Bec’s financial statements. Lorne states that the artwork does not show as Jamie Bec’s asset because it has been depreciated to zero. Lorne acknowledged that Tory Ryan had depreciated the artwork to zero in the summer of 2015, before the February contract was negotiated. He states there was other artwork in the house to which the marriage contract referred.
[107] All the artwork was shipped to the home and intended for the family’s personal use. This was consistent with how the couple managed their affairs – personal expenses were routinely run through the business, although there is some dispute about how the accounting for these personal expenses was ultimately carried out.
[108] Words in a contract are to be given their ordinary and grammatical meaning, when read in the contract as a whole, consistent with the surrounding circumstances: Sativa Capital Corp. at para. 47.
[109] The contract is clear that the artwork contained in the home would be Donna’s. The contract referred to the artwork that formed part of the contents of the home. I find Lorne’s attempt to get around the contract by relying on the art having been purchased through the business to be disingenuous. The comingling of the parties’ personal and business lives was long established. The artwork is not included anywhere as an asset in Jamie Bec’s corporate documentation. I do not accept that the parties intended anything other than what the contract plainly says: the artwork in the home, regardless of how it was purchased or obtained, would belong to Donna on separation.
[110] The artwork’s value may be relevant to a discussion of means and needs, when considering the appropriate amount of support to be paid, but I find it is not relevant to the equalization claim. Under the terms of the February contract and consistent with the parties’ intentions, it properly belongs to Donna.
Life insurance policies
[111] This issue was resolved during trial. The couple had purchased life insurance policies for each child, in respect of which Donna was the beneficiary and the child the insured. Post-separation, Donna transferred the policies to the children; each child is now a beneficiary of the other child’s policy. Donna states the parties had always intended to treat the policies this way after the children had graduated. Lorne initially sought to include the value of the policies in Donna’s net family property but gave up this position in cross-examination. Both parties’ calculations now exclude the value of the policies from Donna’s net family property.
The wine
[112] Lorne testified that he began collecting wine in 1995 and that when he left the matrimonial home, there was about $20,000 worth of wine in the home. An invoice was produced indicating that $9,975 worth of wine was purchased in June 2016. Lorne took a box of wine with him when he left the home. The evidence is insufficient to establish the value of any wine Lorne may have stored in the house post-separation. Whatever wine was left there when he left is excluded from Donna’s NFP under the contract, as it is included in the household contents.
Getchell Gold shares
[113] Lorne has a professional corporation through which he runs his law practice. His professional corporation issued an invoice dated July 4, 2017 to Buena Vista Gold Inc. for work done from 2010-2017, for US$100,000, which included $11,504.42 in HST. Lorne testified that this invoice remained outstanding as of the date of separation (the “DOS”), that Buena Vista subsequently merged with a company called Getchell Gold and asked if Lorne would exchange his account receivable for common shares of Getchell Gold at 20 cents (USD) per share. He produced a certificate dated November 15, 2018 indicating that he owns 500,000 Getchell Gold shares. He states that as of the DOS, the US$100,000 was owing to his professional corporation. The account receivable was not reflected on his professional corporation’s books in 2017 or 2018, nor was a bad debt claimed. The share exchange was not reflected, nor did he remit HST, nor did he tell the valuators that he exchanged his $100,000 debt for the shares. The Getchell Gold shares were issued to Lorne personally, not his professional corporation; he states that this is because the debt was assigned to him personally for one dollar. On his financial statements, he swore that he purchased the Getchell Gold certificates post-separation but discloses no account receivable owing to his law firm. As of November 2018, Getchell Gold shares were trading at 51 cents per share.
[114] Donna states that Lorne should not be believed that the shares were given to him post-separation. She argues therefore that the value of the shares as of the DOS, $255,000, should be included in his NFP or included as an account receivable to his professional corporation. She argues that his evidence regarding the circumstances surrounding his receipt of the shares in exchange for a payment owing to his law firm is inconsistent with his five financial statements. In those statements, she states that Lorne swears that he purchased the Getchell Gold shares post-separation, and he lists no receivable owing to his law firm.
[115] Lorne proposes to simply omit the receivable of $100,000 as of the DOS, which he characterizes as accepting Donna’s position. He disputes her providing a DOS value to the shares of Getchell Gold of $255,000, since it was not a DOS asset. Lorne cannot accept one half of Donna’s position and not the other. Donna took the position that the shares and not the receivable, should be included given that the receivable was nowhere to be found on the law corporation’s books.
[116] There is no doubt that the paperwork on this issue is unsatisfactory and concerning. However, the best evidence available to the court is that the US$100,000 account receivable existed as of the DOS, although it was never properly recorded in the books of the professional corporation, and that the Getchell Gold shares were purchased in November 2018, post-separation. There is simply no evidence that Lorne received the share certificates prior to the DOS. Although the account receivable should have shown on Lorne’s books, the fact that it did not is not dispositive given that Lorne’s manner of keeping books has hardly been beyond reproach.
[117] Lorne shall have the US$100,000 AR included in his NFP as of the DOS.
Disposition costs
[118] Donna argues it would be inappropriate for Lorne to claim notional taxes on disposition of the shares as of the DOS because “he has no intention of paying any taxes associated with the shares or the receivable”. Since he has not provided evidence that there is a likely disposition date, and that disposition costs will be inevitable, he is not entitled to claim disposition costs: Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at p. 213.
[119] Lorne argues that the test is not whether the disposition is inevitable, but whether it is more likely than not that the asset will be sold: Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, at para. 21. He further submits that both parties have applied disposition costs to their assets and should be treated the same in this regard.
[120] I agree. In these circumstances, I find the disposition costs claimed are reasonable. Lorne is entitled to include notional corporate taxes on the account receivable.
Credit card points
[121] Donna seeks half of the points balance as of the end of TRC Capital Corporation’s (“TRC”) fiscal year end, 2019. Lorne claims all credit card points should be equalized as of the date of separation.
[122] I agree with Lorne’s position. All credit card points will be equalized as of the date of separation.
Conclusion re equalization
[123] The outstanding issues regarding equalization are determined as follows. The marriage contract is upheld, so that Donna only owes Lorne his share of the growth of the value of the matrimonial home from the valuation date in the February contract until the date of sale. The artwork is excluded from Donna’s NFP. The life insurance policies are excluded. The US$100,000 account receivable for Lorne’s professional corporation is included. Disposition costs in the form of notional tax payable are permitted.
Issue three: What spousal support is payable, prospectively and retroactively?
Position of the parties
[124] Donna seeks spousal support starting in August 2019 and claims a strong compensatory, as well as needs-based, entitlement.
[125] She claims support for five months of 2019 based on mid-range support and Lorne’s income of $3,747,000; and mid-range support for 2020 until August 2021. Donna asks that she be paid high-range support from August 1, 2021 to June 2024, since their younger child was living with her and in professional school during this time.
[126] Lorne argues that if the marriage contract is upheld, there should be no retroactive spousal support adjustments, and any prospective spousal support has been satisfied by the amount of support he has paid to date and Donna’s retention of the vast majority of the proceeds of the sale of the home. Therefore, no future support should be payable. He disputes that the court can adjust the range of support payable on the basis that their adult son has been living with Donna while in school.
[127] Lorne takes these positions in part because Donna received a substantial amount of money from TRC in 2019, which he argues would have entitled him to support for some or all of 2019. Donna denies Lorne has proven entitlement to support for 2019.
Background relevant to support
[128] For the purposes of the support discussion, it is helpful to provide some background about the entities through which Lorne conducted his business and the timing of the interim support motions brought in the proceedings.
[129] Lorne conducted his mini-tender business through TRC Capital Corporation (“TRC”) as of the date of separation. There were several corporate entities, some of which were holding companies and some of which were amalgamated at various times, but the active corporations for Lorne’s business were TRC and later, as will be described below, TRC Capital Inc. (“TRCI”). Both TRC and TRCI have fiscal year ends of July 31.
[130] Lorne generated all the revenue in TRC and TRCI. Some years, Lorne’s mini-tender business was more successful than others. He described the business as very unpredictable with many ups and downs. Bids are not always successful, and expenses are incurred even for unsuccessful bids. In addition, Lorne sometimes lost money through other business ventures, such as horse-racing. Donna acknowledged on cross-examination that she offered to sell jewelry to provide funds to support the family “whenever there was a problem”.
[131] Donna stated that Lorne would give her documents during the course of the marriage, and because they were married, she signed them without understanding them. She trusted him and did not seek an explanation. Donna testified that she did not have a very good understanding of the corporate finances.
[132] During the course of the negotiations of a separation agreement in 2015, Donna had received a chart from Lorne’s then counsel setting out the corporate structure of the businesses. She testified that she was “flabbergasted” to see the extent of the corporations involved in Lorne’s business. TRC was wholly owned by a corporation called Interior Expressions, which was wholly owned by Donna. Given that information and her status as owner of the corporations, she asked for signing authority over the corporate bank accounts to ensure full transparency. Lorne agreed.
[133] While Donna had signing authority on TRC’s bank accounts with CIBC, Lorne remained the sole authorized signatory for TRC’s brokerage accounts with Canaccord.
[134] At the time of separation in September 2018, TRC was paying Lorne and Donna each a salary of $1500 weekly. Dual signatures were not required; either party could sign a TRC cheque. Lorne signed most of them until December 2018. Lorne managed the books, issued the cheques, and paid the family’s income tax expenses, as well as the pension payments and credit card expenses for both parties.
[135] Lorne testified that there was no impact on TRC’s operations after Donna obtained signing authority at the end of the 2018 fiscal year.
[136] In about November or December 2018, Donna discovered a cheque in TRC’s books that concerned her. She states that she discovered a pre-separation cheque (from July 2018) that Lorne had made out to his professional corporation. Lorne acknowledged to Donna that he used the funds to pay his girlfriend’s expenses, which he acknowledged on cross-examination was not a proper use of his trust account. Donna therefore had Lorne removed as a signatory on the CIBC accounts and made herself the sole signatory as of early January 2019. Lorne continued to conduct business through TRC, and the funds were deposited into the CIBC accounts, but Donna was the only one who could disburse funds, including living expenses.
[137] From January to July 2019, TRC paid Lorne’s credit card bills and continued to pay both parties $1500 weekly. Donna also made payments for the company’s pension, other expenses, and $150,000 to each party for personal expenses. TRC paid for various other expenses, including those related to the children and various health-related costs. This is consistent with how TRC had operated pre-separation.
[138] Donna stated that Lorne did not request any other funds, and that she would have provided anything he asked for during this time. Lorne’s evidence was that the funds he received from TRC once Donna had control were not enough to cover his personal expenses “by a long shot”. He states that he requested more funds, and Donna would not release them; Donna’s evidence is that she never refused to give Lorne funds he requested.
[139] The parties dispute the events of the summer of 2019. Lorne takes the position he was constructively dismissed from TRC. Lorne states that he could not get funds from Donna and had to start conducting business through a different entity, TRCI. He says he started from zero at this time.
[140] Donna denies excluding Lorne from TRC, pointing out that it was not in her interest to dismiss Lorne; it was only in her interest to have him continue earning revenue for TRC. Donna discovered only indirectly that Lorne had started conducting his mini-tender business through a different corporation, TRCI, instead of through TRC as he had always done up until the end of the 2019 fiscal year. Lorne did not tell her about this change.
[141] I accept Donna’s evidence on this point. There was no evidence that Lorne sought funds that Donna refused to provide. The only evidence was that Donna wanted equal payments to be made to both parties, so that when Lorne requested funds, she paid herself the same amount. I accept that it was in her interest that Lorne continue generating income for TRC and that she would have no reason to exclude him. As will be discussed in further detail below, I find that without Lorne, no mini-tender business could be conducted and therefore TRC would have no ability to generate revenue.
[142] Donna was not receiving support payments from Lorne at this time. After negotiations, the parties entered into an agreement that from October 15 to 31, 2019, each party would receive no more than $30,000 from their respective corporation (TRC for Donna and TRCI for Lorne) and no more than $60,000 per month from TRC and TRCI respectively starting November 1, 2019.
[143] The parties abided by this agreement until March or April of 2020.
[144] When the COVID-19 pandemic was declared in the spring of 2020, Lorne told Donna he could not work. Lorne testified that the market volatility that COVID brought was not good for his mini-tender business, and there was a great deal of market uncertainty. Donna continued to draw funds from the TRC account and received no support from Lorne. Donna viewed this as depleting her own capital to pay herself. All new revenue was going into TRCI, but she was being paid by TRC. Donna stated that during this time, she had to rely on hiring professionals, as she had no experience or skills to manage the business. She described hiring someone to give her one-off advice about what stocks to sell to cover the expenses.
[145] In October 2020, Donna started this application, followed by an interim motion for spousal support that was decided by Monahan J. (as he then was) in April 2021.
[146] At the return of that motion, Lorne took the position that no spousal support should be ordered because he had no income. Monahan J. proceeded to average the incomes provided by Lorne’s own expert. On that basis, Lorne was ordered to pay $65,626 monthly in support to Donna on an interim basis, based on an income of $1.8 million. Justice Monahan declined to order support retroactively to August 2019 as Donna requested, in part because her net worth had increased in the period since separation, and in part because the evidence before him was insufficient to determine the legal effect of the series of complex corporate transactions that had occurred during this period: Albaum v. Albaum, 2021 ONSC 3106, 57 R.F.L. (8th) 418, at paras. 31-32.
[147] In February 2022, Lorne moved unsuccessfully before Papageorgiou J. to vary Monahan J.’s order, arguing there had been a catastrophic change to his income. Papageorgiou J. denied that motion. I note that although Lorne argued before Papageorgiou J., based on affidavits sworn in January 2022, that TRCI’s income was drastically reduced, the valuators have agreed that TRCI’s income for 2021 was $2,766,000, or, if adjusted to remove a tax advantage received that year, $1,800,000.
[148] Lorne continued to pay the amount Monahan J. ordered until October 2022, at which point, he determined that he could not continue to pay the ordered amount. He unilaterally, and without any notice, decreased the amount of support he was paying to $30,000 per month. Donna registered the order with the Family Responsibility Office (“FRO”), who entered into a Voluntary Arrears Payment Schedule (“VAPS”) with Lorne in July 2023. He resumed his full payments and added $10,000 per month in arrears payments. As of October 10, 2023, Lorne’s arrears were $281,025.74.
[149] Lorne argues that his financial position in TRCI was not successful until the time of the motion before Monahan J., and that he was in fact in a loss position leading up to the motion. He also states that the business has not been as successful since it moved to TRCI. He acknowledges that 2021 ended up being a good year but notes that the success was driven partly by tax strategies. He testified that for part of 2021 he was selling securities to fund his business and his cash flow was in serious decline. Donna argued that Lorne had been untruthful on his financial statements and his assertions to Donna up to this point – that she was playing a game of trying to catch Lorne and determine his income about which he was not forthcoming.
[150] I accept Donna’s characterization of Lorne’s approach to disclosing his financial situation to her. I note that during the time Lorne unilaterally reduced his payments, he closed several successful mini-tender bids. He travelled to Europe with his girlfriend for operas. By the end of its first year of operations, TRCI had retained earnings of about $1,800,000.
Lorne’s Income
[151] Income for spousal support purposes is determined in accordance with the Federal Child Support Guidelines, SOR/97-175: Spousal Support Advisory Guidelines (the “Guidelines”), s. 6.1. Annual income is determined in accordance with ss. 16-20 of the Guidelines.
[152] Donna retained Ms. Alterman to value Donna’s business interests as at July 31, 2018 and Lorne’s income up to 2022. Lorne retained Mr. Kwiatkowski in February 2019 to calculate his income for support purposes.
[153] Shortly before trial, the parties, through their respective valuators, agreed on Lorne’s income for support purposes, calculated in accordance with the Guidelines, up to and including 2022. The valuators agreed on the adjustments to be made to Lorne’s income and arrived at agreed-upon final figures for his income for support purposes for 2016-2022 inclusively. The years 2016-2018 are not relevant to this litigation, as no support is sought for this time period. Both parties accept the income figures for 2020-2022. I accept the valuators’ evidence and the parties’ agreement on Lorne’s income for these years.
2019
[154] Lorne disputes the valuators’ agreed-upon income figure for support purposes for 2019. He argues that he did not receive the full benefit of that income, and that in fact Donna received the benefit of most of TRC’s 2019 income. Lorne claims he is entitled to support for 2019 on a non-compensatory basis because of economic disadvantage during that year. He claims that when Donna excluded him from TRC, his standard of living declined compared with the marital standard. He argues that when the 2019 support owed to him is factored into the analysis, no ongoing support is owing to Donna.
[155] In evidence at trial, Lorne posited different figures for the benefit he received from TRC in the 2019 fiscal year, ranging from about $360,000 to about $600,000. This was based on the weekly income payments of $1500, a one-time payment of $150,000, and tax and pension contributions made on his behalf. He later added in certain benefits he stated could be attributed to him in his calculation. Lorne claims that Donna should be attributed, as income, the remaining funds of TRC for 2019, about $2,949,999.
[156] The period of August to December 2019 is difficult to account for. There is no expert report to substantiate Lorne’s claims. Neither Ms. Alterman nor Mr. Kwiatkowski was retained to perform this calculation. Ms. Alterman, when asked about this in cross-examination, testified that 2019 was a difficult year to calculate because control of the corporation changed during that year. By the end of the fiscal year, Donna had full control, but this was only true as of January 2019. The experts would have had to undertake an analysis of what happened to the money in the corporation – whether it was used to clear shareholder obligations, for example. A review of the discretionary expenses to determine who got the benefit of the funds would have had to have been undertaken. Expenses and benefits would have been allocated to the parties and the children through various shareholder loan account activity. She was not retained to do that, and therefore no such analysis was conducted. Ms. Alterman was very clear when pressed in cross-examination that she could not determine income for the 2019 fiscal year without conducting a forensic review.
[157] Nor did Mr. Kwiatkowski, the expert Lorne retained, review or provide a report on this issue. Mr. Kwiatkowski agreed that if he were giving an opinion to the court on these income figures, he would have had to review the documents, have a discussion with the parties, and allocate the funds between the parties and perhaps their children. He was not asked to perform any of these tasks and did not do so.
[158] I therefore do not accept Lorne’s argument that he should be attributed $591,000 of income for 2019 and Donna shood be attributed the remainder of the funds in TRC, or $2,949,999.
[159] However, Ms. Alterman was equally clear in her evidence in cross-examination that Lorne did not receive the full benefit of the $3,541,000; some went to each of the parties and some to the children. There is no evidence of the total value of the benefit received by either spouse in 2019 from either expert. This means there is no evidence before the court of the value of the benefit Donna received in 2019. Ms. Alterman was clear, however, that Donna received some benefit.
[160] While Donna seeks retroactive support beginning August 1, 2019, she concedes there “is a vacuum of evidence of the 5 months of August 1, 2019 to December 31, 2019.” I agree that this a significant vacuum. I rely on Ms. Alterman’s testimony that there is no evidence before the court that quantifies the financial benefit either party derived from TRC in 2019, but that both parties derived some of that benefit. Neither expert was asked to perform this evaluation. There is therefore no reliable evidence on which the court can determine relative income and support owing for this period. I am unable to assess the conditions, means, needs, and circumstances of each spouse during this time: Kerr v Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para. 207.
[161] In respect of Lorne’s claim that his standard of living declined significantly during this time, I find that any such decline was as a result of two things – the bargain he made, whereby he gave up his claim to the matrimonial home and its contents, and Donna’s oversight of TRC’s spending. I have explained above that I have not accepted his evidence that Donna excluded him from TRC as of August 1, 2019.
[162] Neither party has met the burden of demonstrating needs and means during this period of the claim for retroactive support. I therefore find there is no support owing between the parties for the period from August 1, 2019, to December 31, 2019.
2020-2022
[163] The valuators agreed upon two scenarios for Lorne’s income. The first scenario sets out their agreed-to figures for 2016-2022, inclusively. In the second scenario, the benefit of certain tax advantages that may be non-recurring are excluded from his income. If the court determines future support based on average income, the court may decide whether to use the first or second scenario, depending on the court’s view of the likelihood of the favourable tax treatment being available in the future.
[164] Under scenario one, Lorne’s income for support purposes was agreed to be as follows:
2019 – 3,541,000; 2020 – 712,000; 2021 – 2,766,000; and 2022 – 1,471,000.
[165] Under scenario two, Lorne’s agreed-upon income for support purposes was as follows:
2019 – 2,551,000; 2020 – 712,000; 2021 – 1,802,000; and 2022 – 1,309,000.
2023
[166] Donna’s position is that, because Lorne did not put forward any evidence of his 2023 income even though TRCI’s fiscal year ended in July 2023, the court should draw an adverse inference against Lorne and accept the analysis Donna has been able to put forward based on available evidence.
[167] Donna asks for specific income to be imputed for Lorne for 2023. TRCI’s fiscal year end was July 31, 2023; the trial commenced in October 2023. She claims Lorne ought to have had a report done on his 2023 income; financial statements were available to him. She then prepared her own analysis of his 2023 income by referring to a summary he prepared of 2023 mini-tenders and the TRCI general ledger for 2023, both of which were entered into evidence and Lorne’s oral evidence. She calculates that his 2023 income is about $1,918,339 but seeks to fix it at $1,800,000, consistent with the order of Monahan J.
[168] Lorne’s position is twofold: first, that a three-year average should be used in determining prospective support given the volatility and uncertainty in his business. Secondly, scenario two should be used, to exclude the non-recurring tax advantages.
[169] Lorne acknowledges the burden is on him to show that s. 16 is not the fairest determination of his income and that a three-year average and exclusion of non-recurring amounts should be used: Fung v. Lin (2001), 2001 CanLII 28193 (ON SC), 16 R.F.L. (5th) 83 (Ont. S.C.), at para. 11.
[170] Section 17 of the Guidelines permits the court to elect the fairest method of determining income. The method could include averaging the past three years of income and removing part of all of non-recurring gains. The court’s job is to take appropriate steps to arrive at a fair income figure: Ewing v. Ewing, 2009 ABCA 227, 457 A.R. 238, at paras. 22-27.
[171] I do not find that an adverse inference against Lorne regarding 2023 is appropriate. Given the timing of the trial a few months after TRCI’s fiscal year end and the extensive amount of work that has gone into the expert calculation of his income for past years, I do not find it unreasonable that an updated report was unavailable for trial.
[172] I find that a three-year average is appropriate in this case. Lorne’s income has always fluctuated; this is evident by a review of his income from 2016-2022 as agreed to by the experts. Some of that fluctuation is related to non-recurring amounts from available tax strategies that subsequently cease to exist.
[173] For purposes of the three-year average, the years in issue are 2020, 2021, and 2022. In 2020, no non-recurring items existed, and the amount of income under either scenario is $712,000. The difference between the two scenarios in 2021 relates to a gross-up on a capital gains strip in the amount of $851,119, and a portfolio capital gain and gross up in the amount of $112,753. For 2022, the possible non-recurring amount was another portfolio capital gain and gross-up of $162,049.
[174] A review of the years 2016 to 2022 indicates that significant non-recurring amounts occurred in four of the seven years, and a lesser non-recurring amount in a fifth year. I find that the non-recurring amounts were a regular feature of the business but fluctuated depending on available tax strategies. Lorne is very attuned to tax strategies and willing to be aggressive in this realm. I find that although the available strategies may vary, he has demonstrated that he will regularly take advantage of any available approaches. I find it fair to include the non-recurring amounts, as on the balance of the evidence, I find they will likely be substituted with other available tax-saving strategies. Further, the averaging of his income over three years also averages the non-recurring amounts, resulting in a fair approximation of his future income.
[175] The average amount of Lorne’s income for 2020-2022 is $1,649,666.67.
Donna’s income
[176] Separate from the income Lorne wishes to be imputed to Donna for 2019, which I have dealt with above, he asks that income be imputed to Donna each year on two bases – intentional unemployment and failure to use her capital to generate income.
Is Donna intentionally unemployed?
[177] Income may be imputed to a party in various circumstances, including if the party is intentionally under-employed or unemployed, and the spouse’s property is not reasonably utilized to generate income: Guidelines, s. 19(1)(a), (e). Imputing income is a fact-specific and discretionary exercise. There must be some evidence grounding the imputation figure. The court cannot select an arbitrary figure: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44. The onus is on the party requesting that income be imputed to establish an evidentiary basis for the finding: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 63.
[178] The word “intentionally” in s. 19(1)(a) of the Guidelines does not require a specific intent to evade one’s obligations; it simply means that the person chooses to earn less than what they are capable of earning. Bad faith is not required: Drygala, at paras. 25-26 and 28-30. Lorne states that Donna could earn income in three ways. She has experience assisting with interior decoration, for which she has been remunerated in the past, which she could use to help support herself. Yet she has not sought to do so. She could reinstate her dental hygienist license, or she could earn income through engaging in the mini-tender business herself.
[179] Donna acknowledges that she has undertaken no steps to earn income or support herself to any degree since separation. She has made no inquiries nor investigated what would be required to reinstate her dental hygienist license. At the time of separation in 2018, it had been six years since she had resigned her license. Donna also claimed that given her arthritis, she could not go back to work in dental hygiene, and that she has no other skills. No medical evidence about arthritis was adduced. She acknowledged that dental hygienists earn between $80,000 and $100,000 annually. Donna states she only ever earned nominal funds, on a very occasional basis, for any decorating advice she provided. She testified that she has none of the skills necessary to engage in the mini-tender business. Donna also testified that she has no computer skills and that at her age, approaching 60, she feels no one will hire her.
[180] I will start with Lorne’s assertion that Donna could engage in the min-tender business. To describe the mini-tenders as even a niche business would be an overstatement. Lorne appears to be the only person in Canada that either party knows who engages in the mini-tender business.
[181] Lorne stated that he once gave Donna a binder, as she wanted to know how mini-tenders operated. He told her to read the binder and ask him questions, but he does not know if she ever read it. Even so, and even knowing he is the only person in Canada who undertakes this business, he testified that Donna has the knowledge to do mini-tenders, with assistance, as the business is “not rocket science”. He described his work in the business as following 250 publicly traded corporations that might be targets and finding the right corporation to bid on at the right time. He follows U.S. Security and Exchange rules about advertising and subscribes to providers of real-time stock quotations. The business also involves preparing documentation for the tender, starting with a target review sheet, followed by an offer to purchase, a letter of transmittal, and a notice of prepared delivery. He described these as legal documents, like takeover bid circulars under the Securities Act, R.S.O. 1990, c. S.5. He does that work himself and testified that if he had to hire counsel to prepare them, the cost would be between $25,000 and $100,000 per tender.
[182] When pressed in cross-examination on his assertion that Donna could conduct the mini-tender business herself, Lorne stuck to his evidence. He stated that Donna could get assistance to perform the mini-tender business, even though he is one of the only people, if not the only person, in Canada who conducts the business. He testified that Donna had the skill set to follow 250 publicly traded companies, that she could choose a target company at the right time, prepare a target review sheet or have one prepared with the salient information, hire a lawyer to prepare documentation, comply with SEC requirements, subscribe to a quotation system, and answer inquiries from shareholders and investors. He said that she is intelligent enough and could figure it out. When it was suggested to him that Donna would not have a source to provide a $100 million letter of commitment from a third party that Lorne has and is required to have to operate the business, he stated “you would have to ask her” who she knew who could provide this for her.
[183] I fully reject Lorne’s evidence in this regard. I also find that Lorne overstated Donna’s involvement in the businesses during the marriage. While the couple may have discussed Lorne’s business during the marriage, and in particular discussed that Donna would be the sole shareholder of the corporations in order to protect Lorne from creditors, I fully accept Donna’s evidence that her role was limited to signing documents that Lorne or the professional advisors asked her to sign. I accept that when she signed corporate documents, such as annual resolutions, she did so at Lorne’s request and trusted him and the corporate advisors, without fully understanding the corporate activity. While she was free to ask questions, it is obvious that she does not have the knowledge, background, or skills to undertake the business. She has no training in law, finance, or business. She did not do any work for TRC. Lorne’s claim in this regard is utterly unrealistic.
[184] Given her age and lack of computer skills, I accept that her options may be limited, but they are not non-existent. At the time of separation, Donna was 54 years old. She had not worked as a dental hygienist for six years. There is virtually no evidence before the court as to what she would have to do to reinstate her certificate of registration with her governing college, as she reported no serious inquiries in this regard. There is no medical evidence that she is unable to do this work for medical reasons. She has not made any efforts toward contributing to her own support through other efforts, such as her previous occasional decoration work. While I wholeheartedly reject Lorne’s suggestion that Donna could engage in the mini-tender business, considering her age, education, experience, skills, and health, I find that Donna could contribute at least a minimal annual amount of $25,000 to her own support through paid work: Vermette v. Morrissette, 2014 ONSC 3944.
Should income be imputed to Donna for not utilizing her property to generate income?
[185] Donna received substantial funds from the sale of the matrimonial home, which was sold in October 2019. She used a large portion of the proceeds to purchase and extensively renovate a condominium in which she now lives. In addition, Donna has other liquid funds, many of which are in bank accounts.
[186] Lorne argues that Donna has failed to invest the substantial funds at her disposal to generate income, which she had an obligation to do: Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, at para. 58. Keeping the funds in chequing and savings accounts fails to put them to use in producing income. He claims she should be imputed income for the amount a prudent investor would be earning from her significant deposits.
[187] Donna claims she has not invested the funds due to the uncertainty of the litigation and its costs and potential outcome. She did not expect that it would take five years for the litigation to resolve. She did not make inquiries about short-term or other investments for these funds.
[188] Donna’s financial statements reveal that in March 2021 she had about $1,172,000 in a bank account, $350,000 of which was earmarked to complete renovations on her new condominium, and about $650,000 in bank accounts of her various corporations. By September 2023, she had over one million dollars in a checking account, about $300,000 in an account earmarked for taxes, and about $700,000 in pension funds. Ms. Alterman testified that she believed five percent returns were available on conservative investments, such as Guaranteed Investment Certificates). On the basis of Ms. Alterman’s evidence, Lorne seeks to impute $100,000 to Donna as income that should be being generated on her capital.
[189] In response to a question from the court in closing argument, Donna’s counsel suggested attributing about $40,000 annual income to her based on income that could be generated from her capital.
[190] I find that income should be imputed to Donna in respect of income she could have generated from her capital, given the fluctuating amount of available capital in the amount of $75,000 annually. Donna’s total income is therefore imputed at $100,000.
Quantum of Support
[191] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), provides that a court may require a spouse to pay an amount of spousal support that the court thinks reasonable: s. 15.2(1). The court is to consider the length of cohabitation and the functions performed by each spouse during the marriage: s. 15.2(4). The order is to recognize economic disadvantages from the marriage and its breakdown, apportion financial consequences arising from the care of a child of the marriage, relieve economic hardship of the spouses arising from the breakdown of the marriage, and, as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: s. 15.2(6). These objectives are to be balanced; none dominates: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 34.
[192] Lorne concedes that Donna is entitled to spousal support. He argues that his obligation to pay support has been extinguished by the support sums and the large proportion of capital she has already received.
[193] Donna clearly has a strong compensatory claim. Donna and Lorne had a lengthy marriage, during which Lorne established a successful business while Donna significantly scaled back her work to take care of the home and the children, an arrangement both parties agreed to.
[194] Donna seeks support from August 1, 2019 forward. The Spousal Support Advisory Guidelines (“SSAG”) provides ranges for appropriate quantum and duration of support. The high end may be appropriate where there is a strong compensatory claim and where the recipient is unable to earn income: ss. 9.1- 9.2. The low end may be appropriate if the recipient receives a large amount of property: s. 9.6. Work incentives for the payor should be preserved: s. 9.5.
[195] The spousal support award must be reasonable in light of the circumstances of the individual case, which includes both the financial history and the parties’ likely future circumstances: Fisher, at para. 96.
[196] Lorne relies on Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, in support of his argument that the significant capital that Donna has received under the marriage contract must factor into the assessment of Donna’s needs and means, decreasing the former and increasing the latter. He claims this is even more significant in a case of unequal division, which is the result here once the marriage contract is upheld.
Donna’s means
[197] Donna has significant capital assets. From the proceeds of sale of the matrimonial home, she spent about $1,000,000 purchasing a condominium and about $750,000 renovating it.
[198] Donna did not provide inventories of the art or wine located in the matrimonial home at the date of separation, nor did she provide, or try to provide, a value for those assets. Donna testified that most of the artwork in the house was purchased prior to the 2015 separation. She stated that it was not worth a significant amount, but she did not value it, as her position was that it was included in the marriage contract and intended to be hers. She approached the wine collection in the same way. The Steinway piano and high-end furnishings were likewise not valued.
[199] Lorne produced some evidence, which he obtained and disclosed on the eve of trial, about the value of some of the artwork and wine in the house. The artwork invoices produced totals of $309,935.23.
[200] Donna argues that no weight should be placed on the invoices given that they were produced to her only after trial started. Lorne explained that he had some difficulty tracking down the gallery and only received the invoices the weekend prior to trial. Given that Donna had an obligation to value the artwork, and that she did not take issue with the authenticity of the invoices, I find that they are the best (and indeed the only) evidence available to the court of the value of the art collection. I do not find any unfairness that was occasioned by their late disclosure to be an impediment to relying on the documents. Donna herself made no efforts to value the artwork although it is her property, and did not dispute the accuracy of the invoices produced.
[201] The piano is estimated to have a value of about $90,000, and the dining room set between $60,000 and $100,000.
[202] Lorne left his Rolex watch, which he testified was worth between $7,500 and $10,000, at the house when he left. Donna, without Lorne’s permission, gave the watch to their son. Lorne states that he will not ask for it to be returned.
[203] I concluded that the value of the contents of the home that Donna has retained under the February contract is between $400,000 and $500,000. She also owns a substantial amount of jewelry.
[204] In addition, her other capital assets have been reviewed above.
The parties’ needs
[205] Donna’s evidence is that she has prepared a reasonable budget consistent with her lifestyle during the marriage. She testified that her current monthly budget of $61,365.45 is fair in the circumstances. She testified that she had not been able to incur some expenses, such as cosmetic services and her personal trainer, because of Lorne’s reduced support payments. She wishes to start saving $5,000 per month. She stated that before separation, her elective cosmetic services could cost more than $40,000 annually. She and her son bought a dog, whose expenses total about $1,000 monthly. Donna noted that some of her expenses are for the couple’s son, who is currently living with her. Some of the expenses are for his school tuition and expenses, which will be dealt with separately below. When those expenses are removed, her budget decreases.
[206] Lorne takes issue with Donna’s budget. He states her budget is grossly inflated and not reflective of her actual expenses. He also argues that the sizable capital she received under the February contract should be considered when determining her needs. Lorne testified that his lifestyle is much diminished since the separation. He moved from a 5000 square foot, lavishly furnished home to a 650 square foot apartment after some time in hotels and Airbnbs, he does not go out to eat as often as he did, and his wine collection is not nearly as extensive as his former collection. He owns no real estate or large assets, and his travel is greatly reduced. He did concede that he travelled to the Super Bowl, spent a month in each of the summers of 2020 and 2021 on an island in Muskoka, and traveled to Europe to see the opera. He stated that these expenses were not included in his financial statement budget because they were one-off expenses. He stated that he was selling clothing online at eighty dollars per suit when business was not good. I find Lorne’s evidence in this regard consistent with his downplaying of his means throughout this litigation.
[207] I find that Donna’s expenses are somewhat inflated, in particular with some anticipated expenses.
[208] I find that Lorne’s expenses are understated, in particular by leaving out items he claims were one-offs but which in fact were regular vacation and travel. Lorne was repeatedly inaccurate in his sworn financial statements in the proceedings.
The SSAG ceiling
[209] Lorne also argues that the $350,000 ceiling in the SSAG, above which the SSAG do not necessarily apply, should factor into this case. He argues this is particularly so given Donna’s retention of most of the couple’s capital under the February contract. Donna argues that there is no rule that the SSAG cannot apply in high-income cases. Further, in these cases, the parties’ needs should be viewed through the lens of the lifestyle the parties enjoyed during the marriage: Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at para. 74. She also argues that although she received significant capital, she is not required to deplete it to fund her daily expenses: Elgner v. Elgner (2009), 2009 CanLII 68827 (ON SC), 85 R.F.L. (6th) 51 (Ont. S.C.), at para. 33.
[210] For incomes over $350,000, a fact-specific analysis is required, and the equalization payment plays a part in this analysis: Halliwell, at paras. 106-7. The appropriate income for purposes of spousal support in cases where the income is above $350,000 can range between $350,000 and the income amount, and entitlement affects the location within that range: Halliwell, at para. 116.
[211] Donna has what is in many ways a classic compensatory entitlement to support. She also has a needs-based entitlement. Donna relies on the principle “first families first”, and states Lorne has prioritized the needs of his new partner over Donna’s. Lorne testified that he supports his new partner, who receives a disability pension, and that he pays for the vast majority of the costs of their daily lives and travel.
[212] However, in looking at the specific, individualized circumstances of this case, I find that the equalization payment is an important factor in determining quantum of support.
[213] There was much evidence about Donna being risk-averse, while Lorne is prepared to take on significant risk. Donna testified that when the accountants advised TRC to do a capital gains strip in the fall of 2018 to obtain significant tax savings, she acquiesced and signed what was necessary but was nervous because she knew the CRA “didn’t love these strips”. Lorne testified that he engaged in aggressive strategies within the limits of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.). Lorne lost a significant amount of money on ventures such as horse-racing. The couple “walked away” from a deposit of about $500,000 on a home they planned to purchase or build in Florida because financially it became unfeasible; they put a line of credit on the house to fund a large tax bill; Donna offered to sell her jewelry when times were difficult. She criticized Lorne’s suggestions regarding removing funds from the mutual fund designated to pay the son’s schooling expenses. The methods proposed are consistent with Lorne’s aggressive tax strategies and risk-taking.
[214] Donna sought security – I accept her evidence that this was her primary motivating factor for the February contract. I find that one of the reasons she sought security was because Lorne was a significant risk-taker. She had, she acknowledged, offered to sell her jewelry whenever there were financial issues. However, it is worth noting that Lorne reached his income level because he had significant risk tolerance. Donna’s retention of most of the family’s capital was intended to go some way to provide her with financial stability and security. In the particular circumstances of this couple, I find that the unequal division of capital that resulted from the February contract is an important factor in determining the location in the range of spousal support, and a factor to consider when evaluating Donna’s needs.
The effect on Donna’s support claim of the son residing with her
[215] The couple’s son is in his third and final year of professional school. He lives with Donna.
[216] The two issues regarding the son are whether Donna is entitled to a higher level of support while the son has been living with her, and how his school expenses are to be paid for. Lorne claims this is really a request for child support and should be analyzed as such.
[217] While the request is not framed as one of support, the analysis of whether the son is a child of the marriage and whether the son is able to contribute to his own upkeep is helpful.
Is the son a child of the marriage?
[218] Donna claims the parties always supported their children’s education. The children’s private schools and American undergraduate degrees were important to the family; indeed, they moved the children to different private schools at a young age to increase their chances of admission to an American university. Lorne promised their son he would pay for his professional school. It was always the son’s expectation that his schooling would be fully funded by his parents.
[219] Lorne argues that Donna has not discharged her burden to demonstrate that the son remains dependent on Donna and unable to withdraw from her charge. He argues that her failure to provide the son’s financial information undercuts her claim: Felbel v. Felbel, 2007 MBQB 150, 39 R.F.L. (6th) 340, at para. 6. He also argues that the son’s rejection of a relationship with him should be considered. Donna counters that Lorne has not shown he has made meaningful efforts to maintain a positive relationship with the adult child: Menegaldo v. Menegaldo, 2012 ONSC 2915, at para. 150.
[220] Lorne points out that the son also has other funds available to him, including funds from his bar mitzvah held in a joint investment account, the cash surrender value of his life insurance policy, and his bank accounts, which total about $104,000, separate and apart from the mutual fund earmarked for his education expenses. Although Lorne asked Donna to provide a net worth statement for the son, she stated she did not have the son’s permission to do so.
[221] The son is an adult child engaged in full-time post-secondary education (his second degree). He will graduate in the spring of 2024 and has secured a job post-graduation. In 2019, the son graduated from his undergraduate degree in the United States and worked in the U.S. for a year. After his return to Canada, he spent one year working and returned to school for a professional degree in the fall of 2021. Donna did not know how much money the son earned during those years. In the summer of 2023, he earned about $30,000 at his summer job. Donna has not asked the son to contribute to any costs of living.
[222] Unfortunately, the relationship between father and son broke down post-separation. Lorne’s evidence is that they have not seen each other since June 2021, but he continues to send his son text messages. Lorne attributes the breakdown to the son living with Donna, based on a text he received from his son in July 2021. Donna attributes the breakdown to Lorne’s own actions.
[223] I do not accept that there has been a unilateral termination of the relationship. The relationship has broken down as a result of the circumstances surrounding the marriage breakdown and Lorne’s actions. I do not find this factor significant to considering the son’s financial situation in the circumstances of this case.
[224] Children of majority age are not required to contribute all their assets toward their post-secondary education before their parents are called on to provide support, nor is it true that children should have to make no contribution from their capital. The means of the children are to be considered along with the means of the parents: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), at paras. 158-59.
[225] In this case, I find the following statement of the Court of Appeal to be of most significance: “If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated”: Lewi, at para. 171. Lorne continued to encourage his son, post-separation, to attend professional school in the United States, assuring his son that he would support him financially. Neither the change in the relationship between Lorne and his son, nor the son’s decision to attend professional school in Toronto and live with Donna (which would significantly reduce the cost of his education), changes the son’s reasonable expectation that his parents would fully financially support his education. Nor has Lorne’s financial situation changed to such a degree that this is not possible.
[226] I accept Donna’s argument that an option for the court is to provide for an adult’s child dependency to be reflected in the range of spousal support to be ordered, when separate child support is not being paid: Vivian v. Courtney, 2010 ONCJ 768, 15 R.F.L. (7th) 219, at para. 43; Manary v. Smart, 2023 ONCJ 33, at para. 226. I do not believe that because those cases were decided under the Family Law Act and not the Divorce Act, the principle does not apply. Quantum of support is a matter of discretion, and providing room and board for an adult child engaged in educational endeavours is a reasonable factor to take into account in exercising that discretion.
Conclusion on income and support
[227] I have considered the appropriate support in light of the following, as described above:
a. Donna has, in principle, strong needs-based and compensatory claims to support;
b. Donna received a vast proportion of the couple’s capital, which was in the form of most of the value of the matrimonial home and its contents;
c. Lorne’s income fluctuates;
d. The parties’ plans and habits during the marriage (and indeed, post-separation) were to financially support their children’s education;
e. Donna is Lorne’s “first family”;
f. Donna should be imputed some income, as set out above.
[228] Therefore, support is to be calculated as follows:
a. No spousal support is owing for 2019;
b. For 2020, Donna will receive the midpoint between low-range and mid-range spousal support based on Lorne’s income of $712,000 and Donna’s imputed income of $100,000;
c. For 2021, from January to August, inclusively, Donna will receive the midpoint between low-range and mid-range spousal support based on Lorne’s income of $2,766,000 and Donna’s imputed income of $100,000;
d. From September to December 2021, Donna will receive mid-range spousal support based on Lorne’s income of $2,766,000 and Donna’s imputed income of $100,000;
e. From January to December 2022, Donna will receive mid-range spousal support based on Lorne’s income of $1,471,000 and Donna’s imputed income of $100,000;
f. From January 2023 to June 1, 2024, Donna will receive mid-range spousal support based on Lorne’s income of $1,649,666.67 and Donna’s imputed income of $100,000;
g. From January 2024 forward, Donna will receive the midpoint between low-range and mid-range spousal support based on Lorne’s income of $1,649,666.67 and Donna’s imputed income of $100,000.
[229] I am leaving the calculations of these amounts to counsel. Counsel will need to reconcile the amount ordered for retroactive support with the amount paid under Monahan J.’s order and the VAPS. To the extent possible, counsel shall take into account the tax implications of the retroactive support payment adjustments.
Issue Four: How should the parties’ son’s tuition and educational expenses be paid?
[230] Donna provided a chart indicating the expenses she has incurred for the son’s schooling. The parties had a mutual fund set aside for these expenses, but Donna was hesitant to cash in the fund for two reasons. First, she said the parties had not agreed on how taxes or income on the cashing in of the expenses would be dealt with; secondly, she did not want the value of the fund to be attributed to her as income when she cashed it in to pay for the son’s school expenses. She acknowledged that she has taken no steps to access the fund or receive advice about how to access it in a cash-advantageous way because, although the parties have agreed that the mutual fund will be cashed in to pay for as much of the expenses as it will cover, they have not agreed on how it will be attributed. Lorne’s evidence is that there was discussion about the most efficient way to take the money out, and that it was conveyed countless times that the funds were to be used for the son’s education. The parties are agreed that these funds will be used for this purpose.
[231] The parties agree that the mutual fund is not to be included in Donna’s net family property and shall be used for the son’s tuition and fees. The funds will be withdrawn in the most tax-efficient manner and will be used first to pay her on account of her payment of the son’s school fees thus far, in the amount of $64,387.05.
[232] How the expenses that remain after the mutual fund is exhausted is in dispute.
[233] Donna proposes that if there is a shortfall between the net funds received from the mutual fund and the cost of the son’s education expenses, Lorne will pay them. Lorne proposes that any shortfall be shared equally between the parties.
[234] I find that any remaining amount should be shared among the parties proportionately. Because this is not a usual child support case, it is difficult to apply the s. 7 apportionment directly, but I find the child support s. 7 calculation to be a useful guide to apportionment. I order that Lorne will pay two thirds and Donna will pay one third of any shortfall.
Issue Five: Have the parties met the requirements for a divorce?
[235] The parties meet all requirements for a divorce, and an order granting the divorce will issue accordingly.
Other terms
[236] Donna seeks a term that Lorne may not seek to change the order if he is in arrears of his obligations under this order. Given Lorne’s previous unilateral reduction of his support payments, I will order under r. 1(8)(e) that Lorne is not entitled to bring a motion to change if he is in arrears under this order, without leave of the court.
[237] Donna also asks for an order that no motion to change be permitted to be brought before January 1, 2028, regardless of any change in circumstances. The parties have spent considerable time and money on this litigation, and a period of respite would no doubt be welcome. It is not clear to me that I have jurisdiction to make such an order. Even if I do, I would not make one in this case. Life circumstances change, and the parties should not be preemptively denied access to the court if material changes in circumstances occur.
[238] Donna seeks specific security for spousal support. Lorne did not provide submissions on the amount of security to be provided or on the specific insurance policies referred to by Donna. Lorne shall provide security for his support obligations, If the parties are unable to agree on appropriate security instruments, they may make submissions on this issue as part of their costs submissions.
[239] Lorne asks the court to exercise its discretion to award interest at higher than published rates given Donna’s failure to pay Lorne his share of the increase in value of the matrimonial home, despite the fact that this was clearly owing to him. I do not view the circumstances of this case to warrant a departure from usual rates. Donna’s economic situation was uncertain given Lorne’s unilateral change to support payments and understatement of his financial position. I have already imputed income to her on the basis of the capital she has held. I see no reason to depart from usual interest rates in this case.
Disposition
[240] The parties are to prepare an order reflecting the following:
The Marriage Contract dated February 5, 2016 is deemed to be valid and enforceable, with the exception of the final sentence of clause 4.2(c).
The Applicant owes to the Respondent the Respondent’s share in the growth of the matrimonial home in accordance with paragraph 4.2(c) of such Contract, which amount is excluded from the Respondent’s net family property.
The contents of the former matrimonial home and all the artwork, which were retained by the Applicant, are excluded property pursuant to the provisions of the Marriage Contract and shall not be included in the Applicant’s net family property.
In finalizing the equalization figures, the Respondent will include US$100,000 as an account receivable owing to his law practice as of the date of separation, and may include notional tax for this amount;
Within 30 days of this Order, each party shall take all necessary steps to transfer 50 percent of their credit card reward points which had accrued to their benefit of the date of separation to the other party’s benefit.
With respect to spousal support:
a. No spousal support is owing for 2019;
b. For 2020, Donna will receive the midpoint between low-range and mid-range spousal support based on Lorne’s income of $712,000 and Donna’s imputed income of $100,000;
c. For 2021, from January to August, inclusively, Donna will receive the midpoint between low-range and mid-range spousal support based on Lorne’s income of $2,766,000 and Donna’s imputed income of $100,000;
d. From September to December 2021, Donna will receive mid-range spousal support based on Lorne’s income of $2,766,000 and Donna’s imputed income of $100,000;
e. From January to December 2022, Donna will receive mid-range spousal support based on Lorne’s income of $1,471,000 and Donna’s imputed income of $100,000;
f. From January 2023 to June 1, 2024, Donna will receive mid-range spousal support based on Lorne’s income of $1,649,666.67 and Donna’s imputed income of $100,000;
g. From January 2024 forward, Donna will receive the midpoint between low-range and mid-range spousal support based on Lorne’s income of $1,649,666.67 and Donna’s imputed income of $100,000.
If the Respondent is in arrears of any amounts owing under this Order, he shall require leave of the court to commence any motion to change this Order.
The funds that were held by Interior Expressions Inc. in TD Bank, account number ending in #653 in the approximate sum of $115,946.84 as of June 30, 2023, shall not be included in the Applicant’s net family property and instead, shall be entirely applied to the son’s tuition and related educational fees for the period September 2021 through to and including April 2024, on the following terms:
a. the funds shall be withdrawn by the Applicant in the most tax-efficient manner;
b. the funds withdrawn by the Applicant shall not be included in her income for support purposes in the years those funds are withdrawn by her;
c. the after-tax funds received by the Applicant shall first be paid to her on account of her payment of the son’s fees to date totaling $64,387.05.
In the event of a shortfall between the net fund received by the Applicant towards the son’s tuition and educational fees, such shortfall shall be paid by the parties in the following proportion: 66.67 percent to be paid by the Respondent and 33.33 percent to be paid by the Applicant.
The Respondent will provide security for the spousal support. If the parties are unable to agree on the security, submissions may be included in the parties’ costs submissions are provided.
Unless this Order is withdrawn from the Director’s Office at the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.
This Order bears post-judgment interest at the rate of 7.0_ percent per year effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
The parties shall be divorced, and the divorce shall take effect 31 days after the date of the Order.
[241] The parties may attend before me to settle the Order once the calculations are completed. The parties are encouraged to agree on costs of the trial. Should they be unable to do so, the applicant may provide costs submissions of no more than 10 pages double spaced, along with a bill of costs and any offers to settle, within 14 days. The respondent shall have 14 days to respond, with the same page limits. There shall be no reply submissions without leave. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.
L. Brownstone J.
Released: March 18, 2024
COURT FILE NO.: FS-20-19412-00
DATE: 20240318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Donna Jodi Albaum
Applicant
– and –
Lorne Howard Albaum
Respondent
REASONS FOR JUDGMENT
L. Brownstone J.
Released: March 18, 2024