Ginese v. Fadel, 2024 ONSC 3011

COURT FILE NO.: FC-19-2026 DATE: 2024/06/24 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SALVATORE GINESE Applicant – and – RITA FADEL Respondent

Counsel: Salvatore Ginese, Self-Represented Katherine Cooligan, for the Respondent Michael Chun, for the Office of the Children’s Lawyer

HEARD: January 15-19, 22-26, 29-31, and February 1-2, 2024 (In Ottawa)

TRIAL Decision - Part 2

AUDET J.

[1] On April 24, 2024, I released the first part of my decision related to parenting issues in this matter, following a three-week trial: see Ginese v. Fadel, 2024 ONSC 2427. At that time, I indicated that my decision on financial issues would follow. In this second part of my decision, I will deal with the equalization of the parties’ net family property (“NFP”), occupation rent, and post-separation adjustments, as well as child and spousal support.

[2] The background facts relevant to this matter, as well as the various steps taken in the litigation, have been related at length in Part 1 of my decision. They will not be repeated here.

EQUALIZATION OF NET FAMILY PROPERTY

[3] By the time the trial was held, there were only a few disputed issues in relation to the equalization of the parties’ NFP. I will deal with each one below.

Household contents

[4] The parties were married for almost 19 years. They were students or had just finished their university education when they married. All their household contents (with the potential exception of gifts received from family members during their marriage) were jointly owned. It is not disputed that when the parties physically separated, the father kept all the household contents.

[5] The parties disagree on the value of such household contents, as well as to whether their value should be split equally between them or attributed solely to the father for equalization purposes given that he kept everything.

[6] The correct way to deal with jointly owned property is to divide its value equally between the joint owners, and to make a post-separation adjustment by way of monetary compensation from the party who retained the joint asset to the party who did not. However, in the circumstances of this case, whether the adjustment is made directly in the Net Family Property Statement (“NFP statement”) or as a post-separation adjustment makes no difference (given that both parties’ NFP value is positive either way). For the sake of simplicity, I have simply made the adjustment directly in the NFP, which is attached as Schedule A [1], by attributing the entire value of the joint assets to the father, who retained them after the parties’ separation.

[7] The parties also could not agree on the value of the household contents. The father takes the position that they were worth $17,000, whereas the mother takes the position that they are worth roughly $43,000. I was provided with no evidence as to the value of the contents, other than the parties’ self-serving testimony in that regard.

[8] It is difficult to envisage that used furniture and household contents of a single-family home could have a fair market value of $43,000. While this family lived well, their combined income at the time they separated was in the range of $200,000 and this income supported a family of six, including four very active children. I very much doubt that their used household contents had a fair market value of $43,000 at the time they separated (after 19 years of cohabitation), but at the same time, I have no evidence that it was only worth $17,000. Additionally, one cannot ignore the fact that the mother was required to re-purchase every single item needed to furnish her own home, whereas the father was not, as he retained the financial benefit of a fully furnished and equipped home.

[9] Considering the above, I attribute a fair market value of $30,000 to the household contents, which is the mid-point between the parties’ positions. The entire amount is attributed to the father as he retained all such contents.

Jewellery

[10] The father alleges that when he left the home, the mother removed all the children’s baptismal gold gifted to them by her family members, as well as the father’s gold and silver chains. The mother denies that she removed any jewellery from the home when she left, other than her own.

[11] I was not convinced on a balance of probabilities that the mother removed anything other than her own personal jewellery, clothing, and other personal items when she left the home. The father’s request to add an undetermined value to the mother on account of jewellery is therefore denied.

JDS Uniphase shares

[12] The father states that he owned shares in JDS Uniphase on the day of his marriage, and that these shares were worth $22,000. He states that they were used post-marriage to pay off the mother’s student loans. The mother testified that she had no knowledge of the father owning these shares when they married, and that the student loans she had pre-dated the parties’ marriage and were paid off by her parents.

[13] I have been provided with no documentary or other evidence supporting the father’s claim that he owned JDS Uniphase shares on the date of the parties’ marriage, or of their value at the time. In my view, the father has fallen short of establishing that he owned these assets on the date of the parties’ marriage, and this claim is denied.

Gifts from grandparents

[14] The father seeks to exclude from his NFP value the date of separation value of the Thomasville Bogart dining room set, which he states his mother gifted to him during the parties’ marriage. He alleges that this set had a fair market value of $3,000 at that date. The mother does not dispute the alleged value, but she states that the set was gifted to both parties, not to the father exclusively.

[15] The evidence before me satisfies me on a balance of probabilities that this dining set was gifted to the father alone, and not to the parties together. This is supported by the father’s and his sister’s uncontradicted evidence that the paternal grandparents had promised their dining room set (which was very valuable) to Grace (the father’ sister), and that in exchange they had promised to buy a brand new dining set for both the father and his older sister.

[16] Further, the uncontested evidence is that the mother did not have any relationship with her mother-in-law (or with any member of the father’s extended family) throughout the parties’ marriage. It is therefore difficult to conceive that the dining room set would have been gifted to both parties, and not to the father alone.

[17] The father’s request to exclude $3,000 from his NFP value on this account is granted.

Post-separation adjustment re: joint debt assumed by father

[18] The father seeks an adjustment to the equalization payment resulting from the fact that he assumed $18,000 of the parties’ joint Scotia line of credit post-separation. The evidence demonstrates that on October 5, 2018, the father reimbursed $18,000 on the parties’ joint Scotia line of credit with the use of his personal Scotia line of credit. He states that he did so to make room on the parties’ joint line of credit, which the parties needed for other things.

[19] The above evidence was not contested. However, this transaction took place months before the parties separated. On the date of the parties’ separation, the father still had a balance of $21,149.31 on his personal Scotia line of credit, for which he got a full deduction on the NFP statement. There is no need for any further adjustments in that regard.

Conclusion on equalization and pre-judgment interest

[20] Based on the above, the mother is entitled to an equalization payment in the amount of $15,000.

[21] It took five years for the mother to be paid her full entitlement to an equalization payment. I see no reason why I should not impose pre-judgement interests on this debt, at the rate set out in the Courts of Justice Act, R.S.O. 1990, c. C.43, from the month following the filing of the mother’s Answer (from March 1, 2020, onwards).

OCCUPATION RENT

[22] The mother seeks occupation rent in the monthly amount of $1,725 for the months of November 2019 (the month after she vacated the matrimonial home and the father took exclusive possession) to the month of February 2021 (the month immediately preceding the sale of the matrimonial home, which was sold on March 1, 2021).

[23] To support the valuation of her claim for occupation rent, the mother submitted two rental offerings for family homes like the parties’ family home in the same neighbourhood. One could be rented for $3,450 monthly, and the other for $4,000. These homes were both two-storey family homes with four bedrooms, between 3,000 and 4,000 square feet. However, these listings are undated. It is impossible for the court to know if these listings were available in 2019-2020, or after. I take judicial notice of the fact that the real estate market exploded in Ottawa post-pandemic, with the price of homes and rentals increasing significantly.

[24] The father relied on the Comparative Market Analysis provided by Nella Zourntos, the real estate agent the parties retained to sell their home, based on 2019 rental prices. Ms. Zourntos testified that the matrimonial home was in a bit of a state of disrepair and needed some work. She expressed the view that it would have been very difficult to rent the home for the same amount as the two comparable listings found by the mother. In her opinion, the fair market rent that the parties could have obtained in December 2019 (pre-pandemic) was $2,600 per month. However, that proposed amount is also misleading, given that the vast majority of the mother’s occupational rent claim is for months post-pandemic.

[25] In Non Chhom v. Green, 2023 ONCA 692, the Court of Appeal reiterated that, while it is settled law in Ontario that an order for occupation rent must be reasonable, it need not be exceptional: at para. 8. The relevant factors to be considered when occupation rent is in issue in a family law context are the following: the timing of the claim for occupation rent, the duration of the occupancy, the inability of the non-resident spouse to realize on their equity in the property, any reasonable credits to be set off against occupation rent, and any other competing claims in the litigation: Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), at paras. 49-50.

[26] In Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), Quinn J., after reviewing the jurisprudence, stated, at para. 53, that the following factors may be considered in making an order for occupation rent:

(a) the conduct of the non-occupying spouse, including the failure to pay support;

(b) the conduct of the occupying spouse, including the failure to pay support;

(c) delay in making the claim;

(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f) whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h) whether the occupying spouse has increased the selling value of the property; [and]

(i) ouster is not required. [Footnotes omitted.]

[27] The matrimonial home was sold on March 1, 2020 for $1,348,000. There was significant equity in the home at that time, with only a small line of credit registered against title. While the mother did not pay the full amount of child support she was required to pay during the relevant months, by the order I make today, she will. The mother requested the sale of the joint home in her Answer filed on February 10, 2020; there was no delay in seeking this relief. At the parties’ first case conference before the case management judge in July 2020, the mother still insisted on the sale of the home, and this was discussed during the conference (as per Engelking J.’s endorsement, dated July 28, 2020). Ultimately, a motion on this issue was not required and the home was quickly sold after being listed on the market. But the father resisted its sale for more than a year.

[28] From the moment she consented to an order granting the father exclusive possession of the home in October 2019, until it was sold on March 1, 2021, the mother did not have access to her significant equity in the joint home and was required to reside elsewhere. However, during the months of September and October 2019, it was the mother who exclusively occupied the home, as the father and children had temporarily moved in with the father’s sister. If the mother is entitled to occupation rent for the months following her departure from the home, then the father should equally be entitled to occupation rent for the months he had to relocate at his sister’s house.

[29] On the facts of this case, I find that the mother is entitled to occupational rent for the months of January 2020 to and including the month of February 2021 (the mother occupied the home from August to October 2019, whereas the father occupied the home from October to December 2019, resulting in a set-off for those months). I find that the market value of the rent put forward by the father, as per Ms. Zourntos’ Comparative Market Analysis, is too low because it used pre-pandemic values (August to December 2019). I also find that the market value proposed by the mother is too high, and I suspect that the listings she provided (which are not dated) are more recent ones, which would assuredly suggest higher rent than what was offered in the early days of the pandemic (2020 and early 2021). As a result, I find that the parties could have rented their matrimonial home for $3,000 during the relevant months.

[30] The mother is entitled to occupation rent in the amount of $1,500 per month for the months of January 2020 to and including February 2021 (14 months), totalling $21,000, payable by the father to her.

SUPPORT

[31] The father seeks an adjustment of the mother’s child support obligations, including a contribution towards the children’s s. 7 expenses, going back to September 2019. The mother takes the position that, since the children continue to have no relationship with her and refuse to see her or provide her with any information, no child support or s. 7 expenses should be paid.

[32] The mother seeks spousal support from the father, based on compensatory and non-compensatory principles. The father opposes and takes the position that the mother is currently under-employed and is not entitled to spousal support.

The father’s income

[33] The father graduated from the University of Ottawa with a civil engineering degree and a computer engineering degree. After working as an engineer for various private companies, in 2012, he joined the federal government’s Patent Office, where he continues to work to this day as a patent examiner for electrical and computer engineering patents.

[34] At the time of the parties’ separation in 2019, he was earning $133,898 per annum. It is not disputed that the father is able to earn extra income if he exceeds expectations over the course of the year, something he was able to do when the parties were together. However, given his parental responsibilities towards the parties’ four children since the separation, he has not been able to earn additional income, and has earned only his base annual salary during the following years.

[35] His annual income is not disputed, and was as follows since 2019:

• 2019: $133,898;
• 2020: $108,232;
• 2021: $109,180;
• 2022: $109,392;
• 2023: $109,392; and
• 2024: $109,392 (estimated and based on 2023 income).

The mother’s income

[36] The mother completed a biology degree at the University of Ottawa in 1996, followed by a computer engineering program in 2000. During most of her marriage, the mother worked as a full-time testing engineer in the Health Canada Products Safety Lab. At the time of the parties’ separation, she was earning $87,145.

[37] The mother has been on sick leave since late 2021. During her testimony, she explained that her employment requires her to test electrical products, which requires concentration and attention to detail. These are abilities she was unable to exercise as she gradually fell into a deep depression after the parties’ separation, due to the loss of her children.

[38] The mother was diagnosed with severe major depressive disorder and severe anxiety, and referred for treatment to Dr. Hemings, a family physician, at some point in 2019. In a letter dated April 19, 2022, Dr. Hemings wrote the following:

In over five decades of busy Family Practice I have never experienced a situation as serious and damaging as this has been for Ms Fadel. I have rarely dealt with such high levels of stress for a patient, and certainly never for this long.Throughout this time period I have had frequent, more recently weekly, appointments with her to provide support with the many setbacks which she has faced. The vicious assault by the father of her eldest son was particularly traumatic. In our appointments she is frequently tearful and increasingly fearful that she will never see her children again. There are times when she simply doesn’t know how she will survive but has never expressed suicidal ideation. Her thoughts are often desperate but have never been irrational. She has been compliant with medication prescribed, and there have been difficulties with side effects which have necessitated changes which are never easy for patients.

[39] Dr. Hemings testified during this trial. He explained that triggers that would heighten the mother’s symptoms included the children being in activities that she could not be part of (such as her daughter’s dance recitals), the children’s birthdays, and special events (such as Christmas). Dr. Hemings explained that the mother’s mental health had gotten a lot worse from the end of 2020 to the present. In a letter dated October 18, 2023, he opined that “[h]er present state is a direct consequence of the legal situation which has kept her separated from her children for a number of years”.

[40] The mother has been fully compliant with all medical recommendations, including medication and counselling support. She qualified for long-term disability benefits without question as of November 24, 2021, following which her income was reduced from $88,166.93 in 2020 to $66,631.92 in 2023. At the time of trial, the mother testified that she had applied for a medical retirement at the strong suggestion of her disability insurer (this was supported by correspondence between the mother and her insurer), and she was awaiting a decision from her employer in that regard.

[41] In her written closing submissions, the mother indicated that after the trial was completed, she received confirmation that she had qualified for a medical retirement to take effect on April 30, 2024. While estimates as to her future income from April 2024 were provided based on discussions she had with her insurer, none of this information is properly before me by way of evidence. The mother acknowledges as much and indicated that formal documents regarding her income would be provided once received and that support could be re-calculated accordingly. She requested a summary process before me to adjust support, if necessary, when her actual retirement income is determined.

[42] I find that the mother is not under-employed, as the father argued, and that her current medical condition, more specifically her mental health challenges, are so severe that she is completely disabled and incapable of working at this time.

[43] I find that the mother’s income for the years 2019 to and including 2023 was as follows:

• 2019: $87,145;
• 2020: $88,166;
• 2021: $82,630 (a combination of employment income and various other benefits such as EI and disability);
• 2022: $77,968 (a combination of EI and disability benefits);
• 2023: $66,632 (disability benefits); and
• 2024: Unknown.

Child support

[44] In January 2020, the mother began paying child support in the amount of $258 per month. Pursuant to the interim order of MacEachern J. dated April 29, 2021, she was ordered to pay $1,000 per month from October 1, 2020 until March 1, 2021, when the child support increased to $2,046, where it remains to this date. The mother has paid the child support that she was ordered to pay. The parties never reached an agreement on past s. 7 expenses, and this issue was left for trial.

[45] The mother takes the position that she should not be required to pay child support, given the children’s termination of their relationship with her. She relies on the court’s decision in Lampron v. Lampron (2006), 29 R.F.L. (6th) 307 (Ont. S.C.), where the court denied two adult children any entitlement to child support or a contribution to their post-secondary education expenses by their father, because they refused to speak to him or to have a relationship with him.

[46] The facts in Lampron were very different from the facts in this case. Here, three of the children are still under the age of majority, and they have been severely alienated by their father, through no fault of their own. While the eldest is now 19 years old, he was only 15 when his parents separated. He is also a victim in this case.

[47] I find that the mother has an obligation to pay basic child support to the father for the children based on her total income each year, as directed by the Federal Child Support Guidelines, SOR/97-175, from September 1, 2019 onwards.

[48] It is not disputed that the father paid the various expenses for which he seeks a contribution from the mother. What is disputed is whether they are indeed s. 7 expenses for which a contribution is required, and whether the mother should be required to contribute given that the father never consulted with her prior to incurring them, particularly given the significant financial hardship she suffered because of the father’s actions.

[49] The list of s. 7 expenses claimed by the father were summarized in a chart that was entered into evidence as Exhibit 28 (which included back-up documents such as Our Family Wizard summaries and email exchanges). In her written submissions, the mother included a more detailed chart of s. 7 expenses which appeared to accord with the summary the father provided during the trial, although music expenses for the year 2019 were not included in the mother’s chart. For the sake of simplicity, I have used the father’s chart, which is attached to this decision as Schedule B [2].

[50] In my view, health and dental expenses not covered by the parties’ insurance plan are undisputedly payable by both parents. However, given that both parents were federal government employees and had access to generous health and dental insurance plans, most (if not all) of the children’s dental and health expenses should have been covered under the parties’ health plans. The father’s evidence does not show whether the expenses he claims for the children’s braces and glasses are the portion of expenses paid that were not covered by his plan or by both parties’ plans. The mother has an obligation to submit those claims to her own health and dental plan. The reimbursement must be paid to the father, who covered those expenses, and the mother has an obligation to pay her proportionate share of whatever amount could not be covered by her own health plan.

[51] The father included in his chart the cost of An.G.’s university tuition for the years 2022 and 2023. An.G. received a $3,000 admission scholarship that year, which must be deducted from those costs. Additionally, the parties have a joint RESP that should have covered the balance of these costs fully. Finally, An.G. is an adult child who lives at home and for whom full table support is being paid by the mother. As such, he has an enhanced obligation to contribute to his post-secondary education costs. I was not provided with evidence of An.G.’s income during the relevant years, although I understand that he has two part-time jobs. In my view, the above supports a conclusion that no additional contribution is required from the mother towards these expenses at this time.

[52] I am not deciding whether the mother will have an obligation to contribute her proportionate share of the other children’s post-secondary education tuition once the funds held in the parties’ joint RESP have been depleted. This analysis will depend on the facts as they exist once each begins their post-secondary education.

[53] The main dispute between the parties concerns expenses related to the children’s extracurricular activities. More specifically, the issue is whether any of those expenses were indeed “special or extraordinary”, as defined by s. 7 of the Guidelines. Additionally, the mother objects to contributing to expenses incurred without prior consultation with her, and without her consent. Finally, the mother points to the fact that the amount of expenses claimed is unreasonable considering her limited ability to pay after the parties’ separation, given her decreasing income and the financial hardship she has suffered due to the significant legal fees she had to pay in her effort to address the father’s alienation of the children.

[54] Section 7 of the Guidelines provides that the court can order a party to contribute to certain expenses, over and above the payment of table child support, if such expenses fit into one of the six categories set out in that section, “taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”.

[55] Therefore, for extracurricular activities to qualify as a s. 7 expense, they must be both necessary and reasonable. Additionally, the court must find that the expense is “extraordinary”. This term is defined in s. 7(1.1) as follows:

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant. [Underlining added.]

[56] The undisputed evidence before me is that the children were heavily involved in extracurricular activities while the parties were still together. Dance, music, and soccer were the children’s main activities. Most of the expenses the father claims exceed what he could reasonably cover with the basic child support he received (or will now receive considering the child support order I make today). The issue becomes whether those expenses were necessary in relation to the children’s best interests, and reasonable given the circumstances of the parties during the years following their separation.

[57] During the year of the parties’ separation, E.G. was in dance and taking piano and violin lessons. M.G. was playing soccer and taking piano and drums lessons. A.G. was also playing soccer and taking piano and guitar lessons. Finally, An.G. was also taking piano lessons. Although he did not play soccer in 2019, he played soccer previously and resumed this sport in 2020.

[58] The total cost for all four children’s extracurricular activities in 2019 to and including 2021 were $6,720, $5,729 (E.G. received a dance scholarship that year, decreasing her dancing costs) and $8,035 respectively. I find that, with a combined income in the range of $190,000 to $220,000 during those years, the amounts the father spent towards the children’s extracurricular activities were reasonable ($1,400 to $2,000 per child per year). Moreover, the father simply continued the same activities the children were already engaged in while the parties were still together. I find that the mother is required to pay her proportional share of the children’s extracurricular activities for those years, as set out in the father’s chart.

[59] However, in 2022, the father registered E.G. in a much more expensive dance program (details and reasons unknown to me). The costs increased from $2,693 in 2021 to $12,254 in 2022 and $14,444 in 2023. The father did not seek the mother’s consent for such a change, nor did he consult with her in advance. I find that, while E.G. has clear talent in dancing and she enjoys this sport very much, the costs associated with her current competitive program were not necessary or reasonable given the parties’ incomes, the number of children for whom support and s. 7 expenses were payable, and the mounting legal and professional fees they were both required to incur to resolve their dispute and address the children’s other needs (including a parenting assessment, counselling, and reunification therapy).

[60] Similarly, in 2022, M.G. and A.G. were registered in a soccer program for which the costs doubled from previous years. While it is not clear why this was the case, my understanding is that they moved from a recreational/street soccer program to a more competitive program. For the same reasons as set out above in relation to E.G.’s dance, I am of the view that the increased costs were not necessary or reasonable, particularly since the mother was never consulted in advance about these increased costs.

[61] In 2022, An.G. reached the age of majority, and was pursuing full-time post-secondary studies and working part-time. As an adult child who lives at home, who earns income, and for whom full table child support is being paid (in addition to having his tuition fees covered by his parents’ RESP), I am of the view that any extracurricular activity in which he engages should be covered by him, not by his parents. For the year 2022, only one half of his soccer and piano expenses shall be deemed s. 7 expenses (while he was finishing high school). Thereafter, he should pay the cost of any extracurricular activity.

[62] Based on the above, and for the year 2022, the mother shall only be responsible to contribute her proportionate share of up to a maximum of $7,000 towards the children’s extracurricular activities ($2,000 per child for the three youngest, and $1,000 for An.G. for half of the year). Beginning in 2023, the mother shall only be responsible to contribute her proportionate share of up to a maximum of $6,000 per year towards the children’s extracurricular activities (the three youngest children only).

[63] In Schedule B, attached, I have also struck out those expenses that I do not consider to be s. 7 expenses, or for which I do not require a contribution from the mother for reasons explained above.

Spousal support

[64] I find as a fact that during most of the parties’ relationship, it was the mother who was primarily responsible for the children’s care and household duties. The mother took a year of maternity leave after each child was born. During the years following An.G.’s birth, the father was working in the high-tech industry and had a very demanding and stressful job requiring him to work long hours. When A.G. was born, An.G. (who was three by then) was taken out of daycare and was cared for at home by the mother, who was also nursing a new baby.

[65] By the time the mother returned to work after her second maternity leave, the father had left his job in high-tech and had accepted a position within the federal government (the same job he holds today). The parties retained an elderly lady, Pauline, to take care of the two children during the day. Pauline’s sole responsibility was to care for the children, which meant that when the parties returned home after work, they were responsible for the meals, laundry, cleaning, and other household work.

[66] The mother’s evidence, which I accept, is that the father was an active father who would help in many ways around the house, including by taking care of the children. However, she was primarily responsible for their day-to-day needs and much of the household work (cooking, cleaning, and laundry). Among other things, the mother testified that she would spend most of her weekends preparing homemade meals so that the parties would have their dinners ready throughout the work week.

[67] When M.G. was born, the mother took a third year-long maternity leave and cared for the older two children while also nursing the new baby. When she went back to work, the parties hired a live-in nanny to care for the two younger children (An.G. was by then in school full-time). The mother’s final year-long maternity leave took place after E.G.’s birth in 2011. That year, she was nursing both E.G. and M.G., while the eldest children were in school during the day. This is despite the medical complications the mother suffered following E.G.’s birth, which caused the mother significant pain in the stomach and led to multiple surgeries in the following years, and ultimately to a hysterectomy five years later.

[68] In 2012, the father was allowed to work part-time from home (beginning with two days per week). The parties hired nannies to care for the younger two children while the parents worked. By 2013, the older three children were in school full-time, and the parties hired Pauline once more to care for E.G. while the parents worked. In 2014, the father began working from home full-time.

[69] While the father maintained during this trial that he became E.G.’s primary caregiver because he was working from home full-time, the evidence does not bear his assertions. By the time he began working from home full-time, the eldest three children were in school full-time and E.G. was in pre-school. The reality is that both parents were extremely busy taking care of four young children while both worked full-time.

[70] I find as a fact that once the four children were all in school full-time, they also became involved in many extracurricular activities. The parties devoted all their time and attention to caring for their children, driving them to their activities, and taking care of their household. While the father became more flexible and available while working from home, the mother’s working hours changed to accommodate the children’s and the family’s needs. Catherine Andersson, the mother’s work supervisor, testified at trial and confirmed much of the mother’s testimony about this. She explained that the mother worked compressed hours, never taking her breaks or lunch hours to be home as early as possible in the afternoon. She also testified that many promotions were made available to the mother throughout her employment, for which she was clearly qualified, but that the mother declined every time (or chose not to apply) because she always prioritized her parental and family responsibilities. At para. 9 of her affidavit, Ms. Andersson stated the following:

Rita’s position in the laboratory was an entry-level position and she was happy there knowing that she could balance the other interests in her life with her work. Rita did express interest in moving up, however there was only so much time in the day and her other commitments just did not allow her that possibility.

[71] By the time the parties separated in 2019, the mother was working from 6 a.m. to 1:30 p.m. Since he worked from home, the father would be responsible for the children in the morning until they went to school, and the mother would be back home early in the afternoon to take care of household duties, pick up the children from school, help them with their homework, and get dinner ready, while the father continued to work. After dinner, the parents would split to drive the children to and from their many activities, and get the household organized for the next day.

[72] I find that, until the mother returned to work after her last maternity leave following E.G.’s birth, the mother was the children’s primary caregiver. Once she returned to work and the father began working full-time from home in early 2014, the parents were both actively involved in the children’s care and day-to-day life.

[73] The above most certainly entitles the mother to compensatory and non-compensatory spousal support. But, in my view, another significant basis for the mother’s entitlement to compensatory spousal support is the significant emotional harm and mental health decline she suffered as a result of the father’s severe alienation of the children post-separation. This drastically impacted her ability to work and to continue to earn an income commensurate to what she was earning in the years leading to the parties’ separation.

[74] Section 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), sets out the objectives of a support order:

Objectives of spousal support order

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

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

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

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

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

[75] Section 15.2(5) makes it clear that in making a spousal support order, the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

[76] However, in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, the Supreme Court of Canada explained that while spousal misconduct is “off the table” as a relevant consideration to ground entitlement to spousal support, there is an important distinction between the emotional consequences of misconduct and the misconduct itself. The court stated the following, at para. 21:

The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

[77] The severe parental alienation in which the father has engaged in this case caused a complete breakdown of the children’s relationship with their mother, their primary caregiver throughout most of their lives, with whom they shared a close and loving bond. This breakdown, in turn, caused a severe deterioration of the mother’s mental health, to the point where she became completely disabled and unable to engage in any form of work since November 2021, leading to her full retirement on medical grounds after a lengthy career within the federal government.

[78] Considering all the above, I find that the mother’s claim to compensatory spousal support is extremely strong.

[79] I am not inclined to make an order for spousal support for the year 2019. Not only is spousal support only relevant for four months, but a lot was happening during these four months, given the periods of exclusive possession of the home by each party, the income they earned that year, and other considerations.

[80] In 2020, 2021, and 2022, there was only a $30,000 disparity (roughly) between the parties’ respective incomes, and the Spousal Support Advisory Guidelines (Ottawa, Department of Justice Canada, 2008) (“SSAG”) (in accordance with the mother’s calculations, which do not include relevant tax adjustments for the father or any of the children’s s. 7 expenses) are less than $350 (gross) at the high range. The net amount payable, if any, would be nominal if the children’s s. 7 expenses were included in the calculations. I find that no spousal support was payable in 2020, 2021, or 2022.

[81] The mother’s income seriously declined in 2023. It will likely be lower now that she is medically retired. The support calculations the mother provided did not include allowed s. 7 expenses, which can now be included in the calculations in accordance with my directions above. Additionally, they did not include adjustments to the father’s income for RPP deductions and union, professional, and like dues. The father’s income tax returns and notices of assessment were not adduced in evidence during this trial, which I only realized as I was writing this decision. This was likely missed by all concerned because the father’s income was not disputed. However, to properly calculate spousal support owing, both s. 7 expenses and tax deductions related to the father’s registered pension plan must be included in the calculations, as this will undoubtedly have an impact on the support figures suggested by the SSAG.

[82] I see no purpose in requiring the mother to initiate a Motion to Change months after the trial was completed in this matter to address the change in her income due to her medical retirement, which was an outcome that was clearly anticipated and fully addressed in the parties’ evidence during the trial (except as it relates to the income she would earn once her medical retirement was approved). Furthermore, I require new support calculations to determine the mother’s proportionate share of the children’s s. 7 expenses which I have allowed for the years 2019 to present, to determine the amount of child support arrears she owes (after deduction of what she has paid), and to determine the quantum of the father’s spousal support obligation, if any, for the years 2023 onwards.

[83] In the spirit of r. 2 of the Family Law Rules, O. Reg. 114/99, I have crafted a summary process in my order below to address this important change in the mother’s income, allow the father to provide his income tax information for 2023 (which I do not have), and allow the parties to provide revised support calculations as well as summaries of arrears owing on account of child support and s. 7 expenses for the years 2019 to present, in light of the support actually paid by the mother. Upon receipt of same, I will make a final decision about the quantification of the parties’ support obligations for the year 2019 onwards, based on the parties’ written material.

[84] Any amount the mother owes to the father on account of child support arrears shall be set-off against any amount the father owes to the mother on account of equalization, pre-judgement interest, occupation rent, and spousal support.

DIVORCE

[85] The divorce is hereby granted.

ORDER

1- The parties are divorced.

2- The Applicant father owes the Respondent mother an equalization payment in the amount of $15,000, plus pre-judgement interest from March 1, 2020 to the date of this order, at the pre-judgement interest rate set out in the Courts of Justice Act (2 percent per annum).

3- The Applicant father owes the Respondent mother occupation rent in the amount of $21,000.

4- The father’s obligation to pay the above amounts as well as pre-judgement interest on the equalization payment is suspended until such time as I release my final decision on the quantum of child and spousal support owing.

5- To allow the quantification of child support arrears owing by the mother, and spousal support owing by the father, the parties shall comply with the following:

a. Within ten days of this decision, they shall exchange their 2023 income tax returns and notices of assessment (if not already done).

b. Within ten days thereafter, the mother shall serve and file the following:

i. a brief affidavit, not exceeding two pages (double-spaced, plus relevant exhibits) confirming her medical retirement status and the income she will be receiving on an ongoing basis;

ii. a copy of her 2023 income tax return and notice of assessment;

iii. new SSAG calculations for the years 2019 to present, based on the orders I made above, reflecting her actual income for the years 2019 onwards, and incorporating allowed s. 7 expenses (from September 2019) and relevant tax deductions for the father (from 2023); and

iv. a summary of arrears owing by the mother on account of child support and s. 7 expenses, in light of amounts paid during the years 2019 to present.

c. Within ten days thereafter, the father shall serve and file the following:

i. a copy of his 2023 income tax return and notice of assessment;

ii. if his support calculations are different than the ones provided by the mother, he may provide his own SSAG calculations for the years 2019 to present, in accordance with para. b. iii., above; and

iii. if his calculations result in a different amount, his own summary of arrears owing by the mother on account of child support and s. 7 expenses.

d. If the father disputes the evidence provided by the mother as to the income (quantum) she will receive as a result of her medical retirement, he may file a brief responding affidavit, not exceeding two pages (double-spaced, plus relevant exhibits), addressing that single issue. In the event he does, the mother will be allowed one brief reply affidavit, not exceeding one page, double-spaced, plus relevant exhibits, within five days after service of the father’s responding affidavit.

[86] Once I have considered the above, I will release my final decision on child and spousal support owing. Costs will be dealt with thereafter.

Madam Justice Julie Audet

Released: June 24, 2024

COURT FILE NO.: FC-19-2026 DATE: 2024/06/24 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SALVADORE GINESE Applicant – and – RITA FADEL Respondent TRIAL decision- Part 2 Madam Justice J. Audet Released: June 24, 2024

[1] The Net Family Property Statement, as amended by the Court, is released to the parties only and not included in this decision for privacy reasons.

[2] The chart is released to the parties only and not included in this decision for privacy reasons.