Court File and Parties
COURT FILE NO.: FS-19-045 DATE: 2024-07-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Victoria Jane Little Applicant – and – Ian William Little Respondent
Counsel: Lance Carey Talbot, for the Applicant Joyce Faria, for the Respondent
HEARD: June 26, 2024
Decision on Binding Judicial Dispute Resolution Hearing
S.K. Stothart, J.
[1] With the consent of both parties, a Binding Judicial Dispute Resolution hearing (“BJDR”) was held in this matter on June 26, 2024. Prior to the hearing both parties acknowledged their understanding of the process and agreed to be bound by any final decision that I made in the matter.
[2] A BJDR is intended to be a less complex process for the resolution of family law proceedings. It has two stages. The first stage is a resolution stage, which is similar to a settlement conference. This is an opportunity to explore whether the parties can come to an agreement on the issues with some input from the presiding judge. The second stage is the adjudicative stage. At this stage the parties provide submissions on any remaining issues and rely on the affidavit materials filed as part of the BJDR. The presiding judge then makes a decision on those remaining issues which is binding on the parties.
[3] In this case, the parties were able to resolve several issues between them prior to the BJDR. On September 21, 2023, Justice Richard made final orders with respect to the residence, parenting time, and decision making with respect to the parties’ three children. Further, the matrimonial home has now been sold, and most of the proceeds have been held in trust pending resolution of the financial issues in this case. Both parties have asked that Justice Richard’s order be made part of the final order following the BJDR.
[4] At the commencement of the BJDR, the issues remaining between the parties were:
a. Child support for the three children, including retroactive child support and how that would be paid; b. Section 7 expenses for the children; c. Equalization of net family property; d. Occupation rent; e. Contributions made by the applicant to the matrimonial home; and f. The treatment of expenses related to the older child attending post-secondary education.
Background
[5] The applicant and respondent began living together on May 1, 1998. On June 7, 2003, they were married. They have three children: Stanley David Little, born February 13, 2006; Jordy Ivan Little, born November 3, 2009; and Anthony James Little, born July 23, 2012.
[6] The parties separated on October 26, 2019. After some period of adjustment, all three children have lived with their father since December 2020. The children are attending school in the Parry Sound area. The oldest child, Stanley has graduated from high school this year and is expected to attend Canadore College in North Bay this fall.
[7] The applicant is employed as a nurse. Her income since separation has been as follows:
a. 2019 - $77,723; b. 2020 - $79,789; c. 2021 - $75,374; d. 2022 - $74,146; and e. 2023 - $74,635.
[8] The respondent has been unable to work since 2015 when he suffered an injury at work. He was initially receiving workplace compensation, however in 2021 those payments stopped. The respondent has been pursuing a claim for a Canada Pension Disability Benefit (ODSP). His doctor has advised that the respondent cannot stand or sit for any great length of time and that his condition is likely to deteriorate. His doctor further advises that the respondent suffers from some cognitive impairment and depression that is expected to remain the same. His doctor has stated that he does not expect the respondent to return to any type of work in the future.
[9] The respondent’s income since separation has been as follows:
a. 2019 - $28,973.66; b. 2020 - $30,516.56; c. 2021 - $16,104.50; d. 2022 - $3,116.18; and e. 2023 - $0.
[10] The parties jointly owned the matrimonial home and a vacant lot. These properties were sold in 2023 and the parties received some money from the proceeds and the remainder has been held in trust. Currently there is approximately $330,000 being held in trust. $155,000 is from the sale of the matrimonial home and $175,000 is from the sale of the lot. It is being held in trust by their real estate lawyer Larry Douglas.
Resolution Stage
[11] During the resolution stage of the BJDR, the parties agreed on the following facts:
a. Based on the child support table guidelines, the applicant should currently be paying monthly support for the three children in the amount of $1,484 per month; b. The applicant owes $56,039 in retroactive child support; c. The average rent for a three-bedroom house in Parry Sound would be approximately $2,750 per month (utilities included); d. The applicant has paid $78,974.96 towards the matrimonial home since separation. This includes property taxes, house insurance, mortgage payments, mortgage insurance, and hydro. Initially the applicant had indicated $80,390.96 in her affidavit materials, but agreed during the BJDR that this amount had included six mortgage payments prior to separation that totaled $1,416 and that this should be deducted; e. The applicant has paid $9,664.05 towards the children’s cell phones since separation; f. The applicant resided in the matrimonial home for 46 months post separation, until the home was sold; g. The respondent has paid $4,249.05 in s. 7 expenses for two of the boys. This includes a high school program for Jordy, and some initial expenses related to college for Stanley; and h. Stanley has approximately $10,000 saved towards his post-secondary education and has a summer job. Stanley has applied for OSAP but has not received a response yet. Stanley plans to return and live with his father during the summers.
[12] The parties agreed to most values as set out their net family property statements. They agreed to adjust some of their claims with respect to their net family property as follows:
a. Household contents will be valued at $0; b. The 2004 Acura will be valued at $2,000; c. The 2008 Chev truck will be valued at $300; d. The 2001 MXZ 6000 Skidoo will be valued at $500; e. The tools will be valued at $3,000; and f. TV’s, video games, Jewelry will be valued at $0.
[13] The parties agreed that the applicant should receive a credit to reflect the fact that she paid off the parties’ joint debt. She should receive a credit for $6,657.98 that reflects half of the joint line of credit owing on the date of separation.
[14] The parties agreed that the applicant will pay child support for all three boys, commencing July 1, 2024 in the amount of $1,484 each month commencing July 1, 2024.
[15] The parties agreed that from September 1, 2024 until April 30, 2025, the applicant will pay child support in the amount of $1,133 per month for the two children who are living with the respondent. Thereafter, the applicant will pay child support in the amount of $1,484 from May 1, 2025 to August 31, 2025. This reflects the fact that Stanley will be living with his father in the summer. For each year following, the applicant will follow this schedule with her child support reduced during the school term to support the two children living with the respondent, and then increased during the summer months to support the three children living with the respondent.
[16] The parties agreed that the applicant can pay $50,000 towards the equalization payment owing to the respondent through her pension plan (adjusted for taxes).
[17] Finally, at the end of the BJDR, the parties agreed to resolve the issue of spousal support by way of a lump sum payment of $20,000 to be paid immediately.
Adjudicative Stage
[18] We then moved to the adjudicative stage. The issues that the parties could not agree on and proceeded to the adjudicative stage were:
a. Whether the cell phone payments made by the applicant should be considered a s.7 expense or part of base child support; b. Whether the applicant could claim a debt in the amount of $32,141.69 as part of her net family property (the Fairstone debt); c. How the expenses related to Stanley’s post-secondary education should be covered; d. Whether applicant can pay the retroactive child support over four years; e. Whether the respondent should receive occupation rent for the period of time that the applicant resided in the matrimonial home; and f. Whether the applicant is entitled to a credit as part of equalization for the money she has spent towards the home while she lived there.
[19] I received submissions from both parties on these issues. I made some brief oral decisions on some issues however I advised the parties that I would be providing more fulsome written reasons for my decisions. These are my reasons on the disputed issues.
Should the cell phones be treated as a s.7 expense or as part of base support?
[20] The applicant submits that she paid for the boys to have cell phones so that they could connect with her and to provide them with the ability to game and communicate with their friends given the internet is not very good at their father’s home. It was important to her that the boys be able to be typical children and she felt the cell phones were essential for the boy’s lifestyle choices. The applicant states that from conversations with the respondent, she understood that she would receive a direct credit towards child support for the cell phone bills. The applicant feels the cell phone bills were essential and should be something covered by the base child support set out in the guidelines.
[21] The respondent submits that he cannot afford the cell phone bills on his very limited income. He sees the cell phones as a “want” as opposed to “need”. Since separation he has consistently requested child support from the applicant in writing and has never suggested that she would receive a direct credit for the cell phone bills.
[22] Section 7(1.1) of the Federal Child Support Guidelines, SOR/97-176, defines "extraordinary expenses" as follows:
(1.1) For the purposes of clauses (1) (d) and (f) , "extraordinary expenses" means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or 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 clause (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 parent or spouse requesting the amount, including the amount that the parent or 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,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant.
[23] An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course: Celotti v. Celotti, [2007] O.J. No. 2538 (Ont. S.C.J.); Park v. Thompson, [2005] O.J. No. 1695 (Ont. C.A.), [2005] O.J. No. 1695 (Ont. C.A.).
[24] When considering whether to award s.7 special and extraordinary expenses, the court is guided by the direction in Titova v. Titov, [2012] O.J. No. 5990 (Ont. C.A.) at para. 23:
In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
[25] If you asked most teenagers, I suspect that they would say that cell phones are essential. That being said, I find that the decision to purchase cell phones for children is necessarily based on the family’s financial circumstances. Families of modest means may not be able to afford cell phones for some or all of their children.
[26] The parties in this case are of modest means. Following the respondent’s workplace accident, the applicant was the primary income earner for the family. While the parties were together, it does not appear that the children had cell phones.
[27] I commend the applicant for arranging and paying for cell phones for the three children. I sincerely hope that they appreciate that their mother has agreed to take on the bulk of this expense so that they can enjoy the use of cell phones which are, for many families of modest means, a luxury.
[28] Given the circumstances of this family, I find that the cell phones are s.7 expenses. I find that the cost of the cell phones should be split on a 75/25 basis, with the applicant paying 75% of the cost. In my view, the applicant is entitled to be reimbursed for 25% of the cost, which is $2,416. This reflects the fact that the boys have enjoyed the use of the cell phones while residing primarily with their father, as such he should contribute to the cost incurred thus far.
[29] With respect to the remaining s. 7 expenses, the parties have agreed that the respondent has paid $4,249.05 in s.7 expenses thus far. I find that the applicant should contribute 75% to this amount which equals $3,186.79. The applicant is entitled to deduct $2,416.01 from this amount for the cost of the cell phones. This leaves $770.78 owing by the applicant in s.7 expenses.
Should the applicant be permitted to include the Fairstone debt in her net family property?
[30] The applicant submits that she should be entitled to include a personal loan taken out prior to separation in the amount of $32,141.69 from a lending institution called Fairstone. She submits that she has been paying this loan since shortly before separation and ultimately took out a loan from her parents to finally pay it off. She has provided her bank statements that show consistent monthly payments to Fairstone.
[31] The respondent submits that he was unaware of this personal loan and does not know what it was for. He submits that the applicant may have taken out this loan in preparation of separation. He submits that he has been asking for evidence of the amount of his loan on the date of separation for several years and the applicant has never provided it. He does not know if the applicant has increased the loan post separation.
[32] In determining a spouse’s net family property, the onus is on the party asserting the value of an asset that he or she controls to provide credible evidence as to its value.
[33] In Sheikh v. Sheikh (2005), 17 R.F.L. (6th) 202 (Ont.S.C.J.) at paras. 109-100, Justice Gordon set out the approach to be applied where the owner of an asset fails to provide a proper valuation as follows:
Section 8, Family Law Act, requires each party to serve and file a statement of property disclosing particulars of their property, debts and other liabilities as of the date of marriage and the valuation date. Rule 13(6), Family Law Rules, provides that a party must make full and frank disclosure in their financial statement, that is, disclose the existence of all assets and their true value.
The onus is on the party asserting a value to provide credible evidence in support: see, for example, Menage v. Hedges (1987), 8 R.F.L. (3d) 225 (Ont. U.F.C.). This, in my view, obliges a party to provide a realistic value for each asset, not a guess or fictional amount. When a value cannot be readily ascertained, or there is serious dispute, an independent valuation may be required, such as for a pension or a business: see, for example, Pennock v. Pennock (2000), 4 R.F.L. (5th) 293 (Ont. S.C.J.); Dearing v. Dearing (1991), 37 R.F.L. (3d) 102 (Ont. Gen. Div.); and Katz v. Katz (1989), 21 R.F.L. (3d) 167 (Ont. U.F.C.). It necessarily follows, failure to provide credible evidence to support a value may result in a value being assigned which is less advantageous to the party claiming the asset.
[34] In Homsi v. Zaya (2009), 65 R.F.L. (6th) 17 (Ont.C.A.), at para. 37-38, the Ontario Court of Appeal re-affirmed this onus and recognized that where there is a paucity of evidence as to value, a trial judge may only rely on the limited evidence available to him/her.
[35] I am not prepared to include the Fairstone debt as part of the applicant’s net family property. I do not understand why a statement could not be produced from Fairstone. A statement from the lending institute should show (a) when the debt was first incurred; (b) how much was borrowed; (c) when payments began, (d) whether additional amounts were borrowed post separation; and (e) when the debt was finally paid off. This debt was taken on in 2019 and paid off in 2021. I would expect that financial statements should be readily available.
[36] While the applicant has provided evidence of payments towards the debt, I am simply not able to qualify it or quantify it on the date of separation in the absence of a statement from the lending institution.
How should Stanley’s post-secondary expenses be treated?
[37] The parties agree that Stanley is entitled to continued child support because he continues to be a child of the marriage while he attends post-secondary education at Canadore College in North Bay. It is expected that he will reside in residence while attending this program away from home.
[38] The applicant submits that Stanley should contribute 30% of the cost towards his post-secondary education.
[39] The evidence before me is that Stanley is working, has saved up some money, and has applied for OSAP. As such, I am satisfied that Stanley can contribute towards his post-secondary education.
[40] Pursuant to s. 3(2) the Guidelines, for children who are the age of majority or over, the amount of child support is:
(a) the amount determined by applying the guidelines as if the child were under the age of majority (the standard Guidelines approach); or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[41] It is presumed that the court will apply the standard Guidelines approach in determining child support. Resort to s. 3(2)(b) will only arise in exceptional situations where the court is satisfied that it would be inappropriate to rely on the standard guidelines approach. Lewi v. Lewi, [2006] O.J. No. 1847 (Ont.C.A.), at para. 129.
[42] It may be that the standard Guidelines approach is not appropriate in circumstances where a child attends post-secondary education away from home. Lewi v. Lewi, at para. 138, Coghill v. Coghill, [2006] O.J. No. 2602 (Ont.S.C.J.), at para. 6.
[43] Section 7(2) of the Guidelines states that the guiding principle in determining the amount of an expense under s. 7(1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
[44] An adult child with means is expected to contribute something towards post-secondary education expenses. The extent of the contribution depends on the particular circumstances of each case. This applies to both s. 3 and s. 7 of the Guidelines: Lewi v. Lewi, at para. 159.
[45] I am satisfied that Stanley has the means to contribute to his post-secondary education expenses and that he should contribute to 30% of his costs.
[46] I am also satisfied that the remaining costs should be split between the applicant and the respondent on a pro-rata basis, in accordance with their respective incomes. At this time, I have determined that the pro-rata division should be on a 75/25 basis. This is the best I have been able to do at this time given fluctuating incomes and uncertainty related to the respondent’s future income.
[47] An issue arose at the end of the BJDR with respect to an education fund that exists for the three children that was established by a paternal Aunt. I have asked the parties to see if they can come to an agreement as to how these funds should be used as payment for the children’s post-secondary education. If they cannot come to an agreement, they can return before me to resolve this issue.
Should the applicant be permitted to pay retroactive child support over four years?
[48] The applicant acknowledges that she owes retroactive child support for all three children. She asks that she be permitted four years over which to pay back the amount owing. She submits that she was unable to make child support payments because she was paying for the expenses related to the matrimonial home and the joint line of credit. She submits that she does not have the cash or saving to pay the retroactive amount. She does not want to deplete the funds held in trust from the sale of the matrimonial home and lot, because she will need some of the funds to find and possibly purchase a home.
[49] The respondent submits that the applicant has been fully aware of her obligation to pay child support for some time and should not be rewarded for her decision to not pay child support. He has made repeated requests for child support throughout the years. Since 2021 there has been an interim without prejudice order for child support that the applicant has ignored. This has resulted in the respondent having to take on debt in order to support the children. The respondent submits that the interest he pays on this debt is higher than the interest that would be applied if the applicant pays the retroactive award over time.
[50] The respondent further submits that given the applicant’s failure to comply with the existing interim child support order, he is concerned that she will fail to comply with any further order for the re-payment of child support. He submits that a lump sum payment taken from the proceeds from the sale of the properties ensures that the retroactive award is paid immediately, and he can pay off the debts incurred for the support of the children.
[51] The parties separated in October 2019. Between January 2020 and August 2020, the parties shared parenting time with the children. In August 2020, Stanley moved in with the respondent. In December 2020, the other two children moved in with the respondent. By January 2021 all three children were living with the respondent.
[52] Between January 2020 and October 31, 2021, the applicant did not pay any child support for the children.
[53] On October 7, 2021, at a case conference, on consent, I made a without prejudice interim child support order based on an oral representation that the applicant’s income was expected to be $58,274 that year. In fact, the applicant earned $79,789 that year.
[54] Despite this order, the applicant has not consistently paid child support. At some points she stopped paying child support altogether.
[55] The respondent has been living on and supporting the children with the child tax benefit since his WSIB payments stopped in 2021. He has had the support of friends who have assisted him by providing housing, however he must pay them back for their generosity.
[56] The applicant has been residing in the matrimonial homes since separation. While she has had to pay the expenses of the home, she has had the benefit of living there. I will be addressing this issue as part of equalization and the applicant will receive a credit for the money she paid towards the home.
[57] I have reviewed the applicant’s financial statement and considered it in light of her claim of hardship with respect to the repayment of retroactive child support. The applicant is also of modest means. Based on her average salary, most of her salary will go towards her living expenses and the payment of child support moving forward.
[58] Parents have an obligation to support their children in a way that is commensurate with their income. This obligation, and a child’s concomitant right to support, exists independent of any statute or court order: S.(D.B.) v. G.(S.R.), 2006 SCC 37 at para. 54.
[59] A payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: S.(D.B.) v. G.(S.R.), at para. 107.
[60] Where it is determined that there should be an order for retractive support, courts should attempt to craft a retroactive award in a way that minimizes hardship. This is because retroactive awards are based on prior income and the payor parent may not have access to the funds to pay a retroactive award immediately. Pursuant to s. 11 of the Guidelines, child support may be made payable in periodic payments, in a lump sum, or a combination of the two: S.(D.B.) v. G.(S.R.), at para. 116.
[61] In this case, the applicant does not come to the court with clean hands on this issue. The respondent has consistently requested child support and in 2021 obtained an interim order for child support. Despite this the applicant has not paid child support. While I appreciate that there have been issues surrounding the applicant’s access to the children, these issues do not diminish the applicant’s obligation to provide financial support for her children.
[62] If the applicant was having financial difficulty paying child support, she should have taken steps to reduce her expenses, including the expenses related to carrying the matrimonial home. This could have been either selling the home or renting the home. Further, the applicant is going to receive credit for the money she contributed to the matrimonial home and to the joint debt as part of equalization.
[63] The applicant’s failure to comply with the interim child support order causes me great concern. The fact that she chose to stop making child support payments altogether, in the face of a court order, causes me to have significant concerns that similar issues may arise if the applicant is provided a lengthy period of time over which to pay retroactive child support. Had the applicant consistently paid the ordered child support (which was based on a lower income than that earned) I would have had more sympathy for the applicant’s request.
[64] In my view, the retroactive child support order should be paid by way of a lump sum, to be taken from the applicant’s share of the funds held in trust. Child support should take precedence over all other debts.
[65] I appreciate that this will entail short term hardship for the applicant, in the sense that she will not have access to funds to purchase a home, however it will ensure that the issue of retroactive child support is dealt with immediately. The applicant can then move on and financially plan for her future knowing she does not have this significant debt weighing her down.
Should the respondent receive occupation rent for the period of time that the applicant lived in the matrimonial home post separation?
[66] In Casey v. Casey, 2013 SKCA 58, the Saskatchewan Court of Appeal noted at para. 49 that the jurisprudence does not always make clear the legal authority for awarding occupation rent: equity, statute or common law.
[67] It may be that a claim for occupation rent is brought under s. 122(2) of the Courts of Justice Act, R.S.O. 1990, c.C.43, which states: “An Action for an accounting may be brought by a joint tenant in common, or his or her personal representative, against a co-tenant for receiving more than the co-tenant’s just share”.
[68] In Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (Ont.C.A.), at para. 49, the Ontario Court of Appeal held that the trial judge had the equitable jurisdiction to order occupation rent in circumstances where the parties jointly owned property and where it was reasonable and equitable to do so. The Court of Appeal noted that where occupation rent is ordered, the paying spouse may be entitled to set off the amounts paid towards the matrimonial home post separation as against the occupation rent ordered.
[69] In Griffiths v. Zambosco, the Court of Appeal set out the factors to be considered in determining whether occupation should be ordered in a family law context as follows:
a. The timing of the claim for occupation rent; b. The duration of the occupancy; c. The inability of the non-resident spouse to realize on his or her equity in the property; d. Any reasonable credits to be set off against occupation rent; and e. Any other competing claims in the litigation.
[70] Courts have recognized that in circumstances where one spouse has had de facto exclusive possession of the matrimonial home post separation, the other spouse may be entitled to receive compensation to reflect this fact. This amount is usually ½ the value of the rent that the parties could have received had they rented the home, less ½ the costs of carrying the home. Irrsak v. Irrsak (1978), 22 O.R. (2d) 245 (Ont.H.C.), affirmed (1979), 27 O.R. (2d) 478 (Ont.C.A.) at p. 249.
[71] In assessing occupation rent, the court is expected to exercise a certain amount of discretion when balancing all of the relevant factors in determining whether occupation rent is sensible in the totality of the circumstances of the case. McColl v. McColl (1995), 13 R.F.L. (4th) 449 (Ont.Gen.Div.) at p. 457.
[72] In Higgins v. Higgins, 2001 CarswellOnt 2729 (Ont.S.C.J.), at para. 39, Justice Quinn held that post-separation payments by an occupying spouse in respect of the matrimonial home should be addressed within the confines of s. 5(6) of the Family Law Act. Justice Quinn held that the question to be addressed is whether, in all the circumstances, it would be unconscionable to allow the non-occupying spouse to reap the benefits of post-separation payments.
[73] I am satisfied that in this case the respondent was effectively removed from the matrimonial home. The applicant told the respondent to leave. Shortly after, at a case conference in early 2020, the applicant requested and received exclusive possession of the matrimonial home. It is agreed that from that point the respondent could not return home and was required to find accommodation for himself and the three children elsewhere.
[74] I am satisfied that the parties attempted to negotiate the disposition of the matrimonial home and the lot by way of agreement. When they could not agree, the respondent sought the sale of properties. While it took some time for the properties to sell, it was not an inordinate delay.
[75] I find that in the circumstances of this case, occupation rent is appropriate. As set out earlier, following separation the applicant told the respondent to leave and obtained an order for exclusive possession. She had the benefit of living in the matrimonial home. The respondent was required to seek accommodations elsewhere. The respondent has had to take on debt to cover his living expenses and expenses related to the children. The applicant has not paid appropriate and ordered child support. The respondent was not able to access the equity in the matrimonial home or lot until the parties finally agreed to sell it.
[76] The parties agree that the matrimonial home would likely rent for $2,750. The respondent should be entitled to half the amount the home would have rented for, during the 46 months that the applicant resided in the home. This would be $126,500 divided in half, which equals $63,250.
Should the applicant be entitled to deduct the expenses she paid towards the matrimonial home post-separation?
[77] I am satisfied that the applicant should be entitled to deduct half the cost that she paid towards the matrimonial home while living there, including the cost of electricity. The respondent would have received a benefit from her payments towards the mortgage and taxes.
[78] I find that the applicant is entitled to deduct half of $78,974.96 she paid towards the home from occupation rent. This deduction is $39,487.48.
[79] This leaves an amount owing to the respondent for occupation rent of $23,762.52. I have is calculated this as follows: $63,250 (half the rent) minus $39,487.48 (half the expenses paid).
Equalization
[80] During the BJDR, I provided the parties with the following chart which sets out the equalization calculation (without taking into account other adjustments for the joint debt and occupation rent). The parties have agreed to these calculations.
| Applicant | Respondent | |
|---|---|---|
| 1. Value of Assets on Valuation Date | $ 355,177.37 | $ 168,561.31 |
| 2. Value of Debts on Valuation Date | $ 9,199.57 | $ 10,712.25 |
| 3. Net Value of Property owned at marriage | $ 0 | $ 0 |
| 4. Excluded Property | $ 0 | $ 0 |
| Total 5 = (total 2+3+4) | ||
| NFP = (total 1 - total 5) | $ 345,977.80 | $ 157,849.06 |
| Equalization Payment | $ 94,064.37 |
[81] For reasons set out above, the applicant is entitled to a credit in the amount of $6,657.98 for her payment of the parties’ joint line of credit.
[82] For reasons set out above, the respondent is entitled to a payment of $23,762.52 for occupation rent for the matrimonial home.
[83] This leaves a final equalization payment owing to the respondent in the amount of $111, 168.91. I have calculated this as follows: $94,064.37 plus $23,762.52 (occupation rent owing) minus $6,657.98 (half the joint debt).
[84] With the agreement of the respondent, $50,000 of the equalization payment may be paid by way of the applicant’s pension. This will leave $61,168.91 owing to the respondent by way of equalization. This shall be paid from the applicant’s share of the sale proceeds currently held in trust.
[85] Currently each party is entitled to approximately $165,000 from the money held in trust. Deducting the $61,168.91 equalization payment leaves the applicant with $103,831.09. In my view, this leaves her with sufficient funds to pay the retroactive child support owed by way of a lump sum, to be taken from the remaining proceeds.
Conclusion
[86] For the reasons set out above which reflect both the parties’ agreement on some issues and my ultimate decision on others, I make the following final orders:
a. The respondent, Ian William Little, shall have final sole decision-making responsibility for the children, Stanley David Little, born February 13, 2006, Jordy Ivan Little, born November 3, 2009, and Anthony James Little, born July 23, 2012. The respondent shall consult with the applicant, Victoria Jane Little, before making any major decisions regarding the children. The respondent shall advise the applicant of any non-urgent and urgent medical decisions involving the children as immediately as possible. The respondent shall list the mother as the children’s secondary contact for all medical or dental professionals; b. The primary residence of the children shall continue to be with the respondent; c. The children shall exercise parenting time with the applicant mother, Victoria Jane Little, pursuant to their wishes. The applicant shall provide her schedule to the respondent six months in advance, and she will post a calendar of weekends on which she is available for possible parenting time. The applicant and the children shall each confirm by text message or phone call, at least three days in advance, whether or not they plan on exercising parenting time. If they do, the applicant mother shall pick the children up at the beginning of the parenting time and the respondent father shall pick them up at the end of the parenting time; d. The applicant shall pay the respondent child support arrears in the amount of $56,039 for the period of January 1, 2020 to June 30, 2024. This payment shall be taken from the funds currently held in trust by Larry Douglas, from the sale of the parties’ matrimonial property, namely the matrimonial home and vacant lot; e. The applicant shall pay pre-judgement interest on the child support arears in the amount of $1,710.37. This shall also be taken from the funds held in trust; f. Commencing on July 1, 2024, and continuing on the first month thereafter, the applicant shall pay to the respondent $1,484 per month in table child support for the three children based on the applicant’s income for 2023; g. The applicant shall pay $770.79 for s. 7 expenses owing up to June 1, 2024; h. The applicant shall pay 75% and the respondent shall pay 25% of s. 7 extraordinary expenses; i. The child, Stanley, shall be expected to pay 30% of any post-secondary expenses. The remainder of post-secondary expenses shall be divided between the applicant and respondent on a 75/25 pro-rata basis; j. If the parties are unable to reach an agreement with respect to how to apply the trust created by the paternal Aunt to post-secondary expenses, they may return to me to address this issue; k. The applicant shall pay an equalization of $111,168.91 to the respondent. The applicant shall be permitted to pay up to $50,000 of the equalization payment to the respondent directly through her pension, and in doing so, shall allocate $61,250 of her pension in satisfaction of the $50,000 she owes him. The respondent shall sign all forms necessary to give effect to this order. The remainder of the equalization payment shall be paid from the applicant’s share of the proceeds of sale currently held in trust by Larry Douglas; l. Once equalization and retroactive child support payments are allocated to the respondent from the funds currently held in trust by Larry Douglas, the remaining amounts owed to each party may be released to the parties; m. For as long as child support is owing, the applicant and the respondent shall provide updated income disclosure to each other by July 1st of every year for the previous calendar year, including all T4 documents, income tax returns and Notices of Assessment from the previous year; n. Unless this support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under this order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order shall be issued; o. This support order bears interest at a rate of 4% per annum any payment or payments on which there is a default; p. The applicant shall pay the respondent the lump sum amount of $20,000 immediately. This reflects a final disposition of the issue of spousal support; and q. Either parties may proceed to obtain a divorce on an uncontested basis
[87] If the parties agree that I have made an error in the wording of these orders, in the form of typographical errors, miscalculations, or other required language, they may forward a written basket motion on consent to my attention for correction.
[88] We were not able to deal with the issue of costs as part of the BJDR hearing. If the parties are unable to come to an agreement with respect to costs, they may make further written submission to me, which shall be no longer than two pages in length, exclusive of any bill of costs.
[89] If written submissions are provided, the respondent shall provide written submission within 15 days of the release of this decision. The applicant shall provide responding written submissions with 15 days of receipt of the respondent’s submissions.
[90] If I do not receive submissions within 45 days of the release of this order, costs will be deemed to have been resolved by the parties.
The Honourable Madam Justice S.K. Stothart Released: July 2, 2024