COURT FILE NO.: FC1194/19

DATE: September 11, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Wessam (Sam) Said Baroudi

William R. Clayton, for the Applicant

Applicant

• and -

Bethany Laura Young

Robert A. Haas, for the Respondent

Respondent

HEARD: February 22, 23, 26, 27, 28, 29, and March 1 and 25, 2024

SAH J.

REASONS FOR DECISION

Overview

[1] The applicant is 47 years old and the respondent is 45 years old. They have a 15-year-old son and a 13-year-old daughter.

[2] To their credit, the parties settled most parenting-time issues prior to trial.

[3] Only the discrete issue of Christmas parenting time remains unresolved.

[4] During the seven-day trial, this court also heard evidence relating to the equalization of net family property (NFP), post-separation adjustments, income determination, child support (retroactive and ongoing), section 7 expenses, and spousal support (entitlement, retroactive and ongoing). The parties also seek a divorce.

Factual Background and Litigation History

[5] The parties met in or around the year 2000. At the time, the applicant was employed at a hair salon and worked in automotive repair, and the respondent was employed as a customer service representative at the Royal Bank of Canada (“RBC”).

[6] Prior to their marriage, the parties purchased a lot on which they built the matrimonial home. They moved into this home on September 1, 2005.

[7] The parties married in the Bahamas on January 9, 2007. They have two children together, Rhys Sayeed Baroudi, born December 7, 2008, and Emerson Sam Baroudi, born November 27, 2010 (collectively referred to as the “children”).

[8] Rhys has been diagnosed with ADHD and has an anaphylactic food allergy. Both children are otherwise healthy.

[9] The parties separated without prospect of reconciliation on March 31, 2019 but continued to live separate and apart under the same roof, in the matrimonial home.

[10] The applicant moved out of the matrimonial home on August 1, 2020.

[11] The matrimonial home was sold on January 23, 2024.

[12] The applicant is a subcontractor in sales for 519 Cars, a pre-owned car dealership, and is self-employed under 1934549 Ontario Inc. (“193 Ontario Inc.”). The respondent is employed by Bell Canada.

[13] On November 5, 2020, Templeton J. ordered the applicant to pay the respondent child support for the two children of the marriage. Pursuant to s. 9 of the Child Support Guidelines O Reg 391/97 (the “Guidelines”), the amount ordered was $1,000 per month, in accordance with the applicant’s deemed annual income of $151,800 and the respondent’s annual income of $72,142. The commencement date coincided with the applicant vacating the matrimonial home on August 1, 2020.

[14] Under Templeton J.'s order, the applicant was to continue paying one half of the mortgage against the matrimonial home and one half of the parties’ joint lines of credit, by making payments to the parties’ joint bank account prior to the payments coming due.

[15] Under the order of Cook J. dated August 2, 2023, the matrimonial home was listed and sold. The Cook J. order specified that the parties’ joint debts, including the RBC mortgage and joint RBC Visa, would be paid from the sale proceeds, after which those accounts would be closed.

[16] Further, the Cook J. order provided that upon the sale of the matrimonial home, after payment of the mortgage, secured debts, outstanding property taxes, other registered encumbrances, real estate commission, and legal fees, the sum of $75,000 would be held back and maintained in the trust account of the real estate lawyer, to the credit of the proceedings, and that one half of the balance would be paid to each party.

[17] This order was made without prejudice to the parties’ positions as to the ultimate liability for the expenses and debts/encumbrances, which were left to be determined at trial.

[18] The parties signed Minutes of Settlement resolving almost all parenting issues. Their agreement is now the subject of my partial final order dated April 8, 2024 (“consent partial final order”).

Issues

[19] The issues to be determined are as follows:

1. Have the requirements for a divorce been met?

2. Is it in the children’s best interest for the applicant or the respondent to have parenting time over Christmas?

3. What are the incomes of the parties? Should income be imputed to the applicant?

4. What is the appropriate quantum of retroactive and/ or ongoing child support, under ss. 9 and 7 of the Guidelines, payable for the children?

5. Which party owes the other an equalization payment and in what amount?

6. What, if any, post-separation adjustments should be applied to equalization payment and/or arrears of support if owing?

7. Is the respondent entitled to spousal support? If so, what is the appropriate quantum of retroactive and/or ongoing spousal support payable by the applicant?

Credibility Assessment

[20] The parties’ disdain for one another was evident throughout the trial.

[21] The applicant was unable to sit through the respondent’s testimony without shaking his head, raising his eyebrows, or silently laughing in a mocking fashion. He was cautioned about his non-verbal communication.

[22] The respondent was directed to answer questions during her cross-examination when she refused to answer or answered in an evasive fashion.

[23] Both parties lacked credibility to varying degrees.

[24] The applicant failed to disclose rental income in his Financial Statement.

[25] The respondent failed to disclose the proceeds of sale already received from the sale of the matrimonial home in her Financial Statement.

[26] On his rental property’s mortgage application, the applicant claimed to personally own a Dodge Charger Hellcat, when his company owned it.

[27] The respondent did not fill out Part 3 of her Financial Statement, disclosing other income earners in her home, specifically her new partner, with whom she moved in prior to swearing the document.

[28] The applicant deferred many questions to his bookkeeper but refused to allow her to log into his CRA account to obtain information to assist the court in obtaining answers.

[29] Both parties tailored their evidence to support their narratives. Whenever possible, I relied on documentary records and always exercised caution with accepting oral evidence.

[30] I am not required to believe or disbelieve a witness’ testimony in its entirety. I can accept none, part, or all of the witness’ evidence, and may attach different weight to different parts of the evidence. See Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28.

[31] Where I have accepted one party’s evidence over the other, I have explained why.

Issue #1: Divorce

[32] The parties have been separated for more than 12 months. Documents for the divorce have been filed and reviewed.

[33] A divorce order may issue.

Issue #2: Christmas

Position of the Parties

Applicant Father

[34] The applicant proposes that the parties share Christmas Eve through Boxing Day in alternating years, such that he have the children from 4:00 p.m. on Christmas Eve until 3:00 p.m. on Christmas Day, and the respondent have the children from 3:00 p.m. on Christmas Day until 8:00 p.m. on Boxing Day, in even-numbered years, with the inverse to occur in odd-numbered years. He proposes that parenting time for the remainder of the Christmas break be in accordance with the regular parenting schedule.

Respondent Mother

[35] The respondent proposes that the children remain in her care from Christmas Eve at 9:00 a.m. until Boxing Day at 4:00 p.m., every year. She asks that the remainder of the parenting time during the Christmas break be divided such that, in odd-numbered years, the children are in her care from the start of Christmas break for eight days, then with the applicant for the balance of the Christmas break. In even-numbered years, she proposes that the children reside with the applicant from the start of Christmas break for eight days and with her for the balance of the Christmas break.

Legal Principles

[36] The court is only to consider the children’s best interests when making a parenting or contact order. In considering the best interest factors set out in s. 16(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s. 16(2) of the Divorce Act.

Analysis and Findings

[37] The parties’ consent partial final order sets out the regular parenting time schedule. The children rotate between the parties on a 2-2-3 schedule.

[38] The applicant is Muslim. The consent partial final order provides him with the option of having the children in his care during Eid. Under the terms of the consent partial final order, the applicant is to advise the respondent when Eid falls from year to year and, if he wishes, he shall have the children in his care from 9:00 a.m. on said day until the following morning at 9:00 a.m., or upon return to school.

[39] The respondent submits that the parties agreed the applicant would have Eid at his request because this is a celebration with his side of the family.

[40] The applicant testified that he had the children on Christmas Day or Boxing Day following the parties’ separation. The respondent denied this, claiming she had the children every Christmas Eve and Christmas during the day.

[41] The respondent was adamant that the practice since separation has been that the children are with her every Christmas Eve and Christmas Day and that she is the individual responsible for all Christmas festivities, including keeping up with Christmas traditions and gift purchasing.

[42] The applicant testified that he celebrates the secular aspects of Christmas with the children. He gets a tree, buys presents, exchanges gifts, and makes a dinner.

[43] The respondent claims it is not fair that the applicant get both Eid and Christmas. She takes the position that the applicant can celebrate with the children on other days during the holiday break. She fails to see that she too can celebrate on alternate days.

[44] The respondent testified about traditions she established, including getting the kids new pajamas, watching Christmas movies and spending Christmas Eve with family. She claims Christmas is her religious holiday and offered Eid to the applicant.

[45] The respondent believes it is fair to trade Eid and Christmas Eve/Day between the parties as it will provide continuity to the children.

[46] At trial, the undisputed evidence established that the children spent Boxing Day with their father and their maternal grandmother, their uncle and his family. The maternal grandmother described this to be a joyous occasion and testified that if the children wanted to see her during Christmas, it would occur with the assistance of the applicant, not her daughter, the respondent.

[47] The Christmas traditions described to be important to the respondent are not tied to religious rituals/services and are secular in nature. There was no evidence of Eid having a particularly religious connotation. These are religious events celebrated in a secular way. These events are about spending time with loved ones. This is something both parents should enjoy. More importantly, it is better for the children to be able to spend Christmas Eve/Christmas morning with each parent in alternating years.

[48] I do not view the trade-off that the respondent seeks to be fair. The applicant’s option to have the children in his care for Eid should be unconnected to a schedule that would preclude him from having the children in his care for Christmas Eve, Christmas Day, and the majority of Boxing Day.

[49] The parties have a shared parenting regime. That shared parenting should carry over the Christmas holidays. The applicant’s proposed Christmas schedule is consistent with the children’s best interests, is fair and reasonable.

Issue #3: Parties’ Income for Support Purposes

Position of the Parties

Applicant Father

[50] The applicant asks that his deemed 2023 income for child support purposes be set at $264,180 (according to his draft order submitted at the conclusion of trial but citing $205,857 under Tab A of his written closing submissions), and that the respondent’s 2023 income be set at $91,920.

Respondent Mother

[51] The respondent seeks to impute the applicant’s income for 2023 in the amount of $570,351. She asks that her income for 2023 be set at $92,141.

[52] The respondent seeks retroactive child support effective August 1, 2020, when the applicant ceased to live at the same residence as the children.

[53] With regard to retroactive support, there is no dispute that the applicant’s income be set at $130,616 for 2020; $126,267 for 2021; and $205,857 for 2022. These figures are taken from the expert report procured by the applicant.

[54] Retroactive support will be addressed below. In this section, I am only required to determine the appropriate income for the applicant for 2023.

Legal Principles

[55] Sections 15.1(1) and (3) of the Divorce Act provide that a court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

[56] Sections 15.1(3) states that a court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable Guidelines.

[57] The Guidelines sections relevant to this case include s. 3(1)(a) and (b), s. 7, and ss. 15–19.

[58] In Mason v. Mason, 2016 ONCA 725, at paras. 161–162, Simmons J.A. summarized the principles applicable to this case as follows:

161 The purpose of ss. 15 to 20 is to arrive at a number that fairly and fully reflects the payor's income. The default is that this number will simply be determined using line 150 income. Where, however, the court determines that this default determination would be unfair, the Guidelines permit an expanded view of income.

162 For the purposes of this appeal, I see the highlights of the income determination provisions of the Guidelines as being:

• s. 15 provides that a spouse's annual income is determined in accordance with ss. 16 to 20;

• s. 16 provides that, subject to ss. 17 to 20, a spouse's annual income is the spouse's line 150 income;

• under s. 17, if a court determines that s. 16 produces an amount that would not be the fairest determination of annual income, the court may have regard to the spouse's income over the last three years to determine a fair and reasonable amount in light of, among other things, any pattern of, or fluctuations in, income;

• under s. 18, if the spouse is a shareholder, director or officer of a corporation and the court determines that s. 16 produces an amount of annual income that does not fairly reflect all the money available to the spouse to pay support, the court may determine the spouse's annual income to include all or part of the pre-tax income of the corporation for the most recent taxation year; and

• s. 19 sets out a non-exhaustive list of circumstances in which a court may impute income to a spouse.

[59] At para. 163, the Court of Appeal in Mason states:

. . . s. 18 permits a court to take an annual snapshot of a spouse's income — and include in it pre-tax corporate income from the most recent taxation year. If the corporation suffered a loss in the most recent taxation year, no amount of pre-tax corporate income may be included. Under s. 17 however, the court may determine an amount that is fair and reasonable having regard to the spouse's income over the last three years in light of, among other things, any pattern of, or fluctuations in, income over the three-year period. And "income" for that purpose may include amounts of pre-tax corporate income added to line 150 income under s. 18 for each of those years. [Footnotes omitted]

[60] Parents have a joint, ongoing obligation to support their children. Imputing income is one method by which the court gives effect to the obligation of a party to support his/her dependents, and to support him/herself when they are claiming support from another. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

[61] The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 457. .

[62] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[63] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations and impute income. See: Smith v. Pellegrini, 2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.).

Analysis and Findings

[64] The respondent claims that income should be imputed to the applicant and should include:

1. His employment income;

2. Net rental income;

3. Net taxable income, grossed up to account for his free/personal use of a vehicle;

4. Corporate income, imputed to personal income under s. 18 of the Guidelines; and

5. Adding back income for expenses unreasonably deducted under s. 19 of the Guidelines.

[65] Each of these itemized requests will be examined below.

[66] The applicant submits the undisputed 2022 income, as determined by the expert, should carry forward to 2023.

[67] Below is a summary of the applicant’s income from 2020–2022, as shown on Line 15000 of his Notice of Assessment, and the income as determined by his expert, Ms. Poole.

Year	Line 15000 Income	Ms. Poole’s Opinion[^1]
2020	$97,084[^2]	$130,616
2021	$90,217[^3]	$126,267
2022	$86,189[^4]	$205,857

[68] The 2023 Financial Statement for the applicant’s company, 193 Ontario Inc., was tendered as evidence. This document shows total revenue of $671,438 (an increase from the previous fiscal year’s total revenue of $315,158); total expenses of $247,142 (a slight increase from the previous fiscal year’s total expenses of $223,572); and net income before tax of $424,296 (a significant increase from the previous fiscal year’s net income of $81,593).

[69] The 2023 Financial Statement for 193 Ontario Inc. also shows retained earnings of $421,023, a significant increase from the previous fiscal year’s retained earnings of $108,029.

[70] In her report, under scenario 2, Ms. Poole considered income available from 193 Ontario Inc. and added back the adjustments for non-recurring income and expenses made in each fiscal year. In this scenario, Ms. Poole started with the Line 15000 income but then considered all or part of pre-tax income, adding income available through 193 Ontario Inc. and expenses with a personal benefit, including income tax gross up.

[71] The approach taken by Ms. Poole is accepted by the parties and commonly seen by the court. Unfortunately, Ms. Poole did not have the benefit of 193 Ontario Inc.’s 2023 Financial Statement and therefore could not calculate the applicant’s 2023 income.

[72] I do not think that it is appropriate for this court to attempt to reproduce the calculations of the expert witness, even if the methodology is understood and agreed upon by the parties.

[73] The applicant experienced some variation in his income but it has been trending higher since 2021. This trend continued in 2023.

[74] I do not agree that the appropriate result in this case is to blindly apply expert-determined income from 2022 for 2023, particularly in the face of 193 Ontario Inc.’s 2023 Financial Statements.

[75] I am left to exercise my discretion to broadly interpret ss. 18 and 19 of the Guidelines in order to achieve fairness while accounting for the money that is available for support purposes.

Applicant’s Employment Income

[76] The respondent proposes that the sum of $52,031 be attributed towards the applicant’s income.

[77] The applicant’s Financial Statement and evidence at trial does not help in determining his employment income. On his Financial Statement, he discloses monthly gross income of $16,142.83, representing income available for support as determined by his expert.

[78] The applicant’s 2022 income tax return cites T4 employment income of $52,032. He proposed that this amount, combined with the corporate income added pursuant to s. 18 of the Guidelines, constitutes his income for support.

[79] Both parties and Ms. Poole start the income from support analysis with incorporating employment income as a source of income. This approach is accepted.

[80] Accordingly, the sum of $52,031 will be added to the applicant’s income for support.

Applicant’s Rental Income

[81] The respondent submits $20,000 of net rental income should be added to the applicant’s income as this is income he could receive from his rental property located at 61 Centre Street, Grand Bend (the “Grand Bend property”).

[82] The applicant purchased the Grand Bend property for $1,175,000 in October 2021. He is the sole owner of this 3,000 square-foot property purchased with the intent of renting it out. He currently holds a mortgage on the property of approximately $827,500 and owes approximately $236,000 in personal loan to a friend/business acquaintance for money borrowed to complete a renovation.

[83] The applicant’s Financial Statement did not disclose rental income from the property. He testified that the property operated at a loss. I draw an adverse inference against him due to his failure to abide by his obligation to provide complete and accurate disclosure.

[84] His bookkeeper, Ms. Dorian Drakos, however, testified that, while there was no revenue in 2021 and 2022, in 2023 there was $16,000 of revenue, claiming that it flowed through the bank.

[85] I prefer her evidence to his. He depends heavily on Ms. Drakos, and I am convinced he would not be able to operate any of his businesses or financial affairs without her help. At several points throughout the trial, he deferred to her when unable to answer questions about his own or his company’s finances. He left me with the impression he knows very little about his financial affairs and that he bestows significant responsibility upon her.

[86] Ms. Drakos testified that the Grand Bend property earned $16,000 between September and October 2023. She testified that she expected the net income of the building to be about $20,000 per year. While I do not accept her unqualified opinion about prospective rental revenue, I do accept that, in 2023, the applicant earned revenue of $16,000 and this amount will be added to his income for support purposes.

Applicant’s Free/Personal Use of Vehicle

[87] The respondent seeks to add $10,000 to the applicant’s income for support purposes, representing non-taxable income, grossed up, as a result of the benefit he receives for the free personal use of his vehicle.

[88] The applicant testified that he does not own a vehicle and that he has free use of vehicles in his corporate inventory.

[89] The respondent testified that the applicant has driven the same vehicle, a Hellcat, for the last four years but he also uses his brother's car for personal use or other cars in his inventory.

[90] The applicant does not dispute driving the Hellcat for multiples years in a row, though he claims it is only during the summer, maintaining that it is not his.

[91] I do not accept the applicant’s evidence about the Hellcat. To accept it would be to accept that he maintains the Hellcat vehicle within his inventory for multiple years while it depreciates, without the prospect of selling it and while incurring the cost of maintaining it.

[92] Further, the applicant considers the Hellcat to be his own. On his mortgage application for the Grand Bend property, filled out in his personal name—not his company name—he lists the 2019 Dodge Charger Hellcat and values it at $90,000.

[93] I find that the applicant derives a direct benefit from the use of the Hellcat and various other cars in his corporate inventory.

[94] The applicant testified that, prior to their separation, the respondent leased a Mercedes from 519 Cars. The applicant did not produce any evidence to support the lease arrangement. I accept the respondent’s evidence that this vehicle was used for personal use, as no lease payments were made to 519 Cars, and that the parties derived an advantage from this arrangement. This is an arrangement that the applicant continues to engage in, to this day.

[95] The applicant testified that the cost of a lease is approximately $600.00 per month. His Financial Statement discloses transportation costs of $1,449.50 per month.

[96] I conclude on the evidence before me, on a balance of probabilities, that the cost of the applicant’s vehicle use is $10,000, which includes gas, maintenance, and insurance. This amount will be added to the applicant’s income for support purposes.

[97] The DivorceMate software will automatically gross up this amount in determining how much gross employment income the applicant would have to earn at his marginal tax rate in order to calculate this non-taxable income.

Corporate Net Income Before Taxes

[98] The respondent asks that the court include all or part of the pre-tax income of 193 Ontario Inc. or impute income because the applicant unreasonably deducts expenses.

[99] Specifically, the respondent submits that $424,296 be added to the applicant’s income for support. This figure is taken directly from the 2023 Financial Statement of 193 Ontario Inc. and represents net income before taxes. According to the Financial Statement, by year end 2023, the company’s total revenue was $671,438 (up significantly from the year prior when total revenue amounted to $315,158). Total expenses in 2023 amounted to $247,142 (similar to the total expenses of $223,572 the year prior).

[100] On cross-examination, the applicant stated he knew nothing about the Financial Statement. There was little to no evidence tendered with respect to the retained earnings for 2023, and no explanation as to why they were so high.

[101] The applicant testified that 193 Ontario Inc had a “good” fiscal year in 2023; however, looking at the company’s Financial Statement, it was clear the company did significantly better than in any other years of operation as recorded in the evidence.

[102] I find the applicant tried to minimize the success of the company despite the documentation that clearly demonstrates the opposite. The contradiction clearly demonstrates the applicant knew very little about his finances, and this is presumably why he deferred many questions to his bookkeeper, Ms. Drakos.

[103] I find the applicant has either no ability or no desire to understand the financial workings of his corporation, and that he relies entirely on his bookkeeper. Before hiring Ms. Drakos, the respondent was responsible for all of the applicant’s companies’ bookkeeping. Ms. Drakos’ evidence offered little by way of explanation about the increase in revenue in 2023.

[104] According to Ms. Poole, if it is assumed that $424,000 of pre-tax net income is available for support purposes, then income for 2023 would go up by more than $100,000 from what was in her report for 2022. She agreed on cross-examination that if $424,000 were available for support, the applicant’s income for support would increase by at least $100,000 to $200,000 from what she had previously reported. On re-examination, Ms. Poole did clarify that she would have to do an analysis to determine if the reported amount of $424,000 was available in liquid working capital.

[105] For 2022, Ms. Poole analysed the balance sheet of 193 Ontario Inc. to determine what funds were available to be withdrawn. She concluded that income available for support was based on sufficient working capital. She was unable to make that conclusion for 2023. However, I still place significant weight on her evidence regarding the applicant’s 2023 income. Ms. Poole’s evidence was accepted by both parties as it relates to the applicant’s income from 2022 and previous years. I find her methodology to be sound and fair and her testimony about the applicant’s 2023 income to be persuasive.

[106] Through Ms. Poole, the respondent established an evidentiary basis for a finding that at least $100,000 should be added to the applicant’s income for support as funds available to be withdrawn by the company. The applicant has not met his onus of defending the income position taken.

[107] For 2022, Ms. Poole opined that $152,428 was available through the company. For 2023, this number will be increased to $250,000.

[108] In exercising my discretion to include this amount to the applicant’s income, I have considered the following:

• The applicant appears to make all operating decisions for 193 Ontario Inc.

• The applicant has discretion in terms of establishing his own income.

• The applicant was evasive in his evidence, deferring questions to his bookkeeper. He demonstrated no knowledge of his company dealings.

• The applicant produced the Financial Statement of 193 Ontario Inc. after the trial started. It was likely available to him before then. He had an obligation to provide updated financial disclosure on an ongoing basis.

• The applicant did not provide an explanation regarding the necessity for the corporation to retain these earnings for corporate/business purposes.

• There is no evidence that the corporate income is not available to the applicant.

• There is no evidence that 193 Ontario Inc. historically reinvested excess income.

• There is no evidence that the funds are needed to pay back debt.

• There is no evidence to suggest that income distribution jeopardizes the financial health of the company.

• I acknowledge that some funds may be required for legitimate business obligations and/or dealings and, therefore, the full amount is reduced.

Add-back of Corporate Expenses—Legal and Accounting Fees

[109] The respondent seeks to add $24,400 to the applicant’s income for legal and accounting fees unreasonably deducted from 193 Ontario Inc.

[110] Ms. Drakos testified that the applicant deducted $21,000 in legal and accounting expenses, as well as $3,400 paid to her for expenses incurred relative to this court proceeding. She testified that all experts retained for this proceeding were paid from 193 Ontario Inc. This evidence from his own witness was not disputed by the applicant.

[111] According to Ms. Poole, if the applicant spent $20,000 in 2023 for accounting and legal fees related to this proceeding, it should be added back into income and grossed up by his marginal tax rate. I agree. Ms. Poole, while on the stand, was not able to estimate the applicant’s marginal tax rate in 2023 because she did not have his 2023 personal income tax return. According to her report, the applicant’s marginal tax rate for 2019 to 2022 was 43.41%. The expert methodology required them to adjust the company's expenses with a personal benefit from a fiscal year to a calendar year by proration.

[112] Under s. 19(1)(g) of the Guidelines, the amount of $24,400 will be imputed to the applicant as these expenses were unreasonably deducted expenses. As with the applicant’s use of his vehicle, this amount will be grossed-up per the DivorceMate software.

Conclusion

[113] Based on the foregoing, the applicant’s income for 2023 is $392,054 as set out in Schedule “A” of this decision.

[114] For the respondent, I accept the income of $92,920 as set out in her Financial Statement and as accepted by the applicant according to the support calculations attached to his closing submissions.

Issue #4: Child Support Payments

Position of the Parties

Applicant Father

[115] The applicant seeks an order that child support commence March 1, 2024, and that there be no arrears of support payable by either party for the period from August 2020, when he moved out of the matrimonial home, up to and including the end of February 2024. According to him, this takes into account the respondent owing him an equalization payment and/or post-separation adjustments.

Respondent Mother

[116] The respondent seeks retroactive child support payable by the applicant fixed in the amount of $12,598 effective December 31, 2022. She claims child support dating back to the date of separation, claiming she is owed for 9 months in 2019 and 12 months in each of 2020, 2021 and 2022, less payments made.

[117] She also seeks retroactive payment towards children's expenses fixed in the amount of $14,896.97 effective February 29, 2024.

Legal Principles

[118] Any support claimed after an application is issued is prospective support, not retroactive: see Mackinnon v. Mackinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (Ont. C.A.).

[119] The Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24, at para. 114, set out the framework to be used for applications to retroactively increase support:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[120] Courts have held this framework is also to be applied, with necessary modifications, for an original request for retroactive support: see M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.

[121] Here, there is no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci.

[122] First, the court must determine the presumptive date of retroactivity as described in Colucci.

[123] Second, the court must determine if it should depart from the presumptive date of retroactivity where the result would otherwise be unfair.

[124] Third, the court must quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with incomes of the parties as agreed upon (for 2019–2022) or as determined by this court above (for 2023).

Retroactive Child Support

[125] The interim child support order made in November 2020 was without prejudice. The commencement date for that order coincided with the date the applicant vacated the matrimonial home. The order was made on consent. At trial, the respondent sought child support retroactive to date of separation.

[126] The applicant commenced his Application in October 2019 and claimed support. The respondent also claimed child support in her Answer dated November 2019. Each party has effective notice of the claim for support five to six months after they separated.

[127] There is no dispute that expenses relating to the matrimonial home were split 50/50, on agreement, from the date of separation to the date the applicant vacated the matrimonial home.

[128] It was the respondent’s evidence that she would show the applicant a bill and they would split it equally. This included groceries and utilities.

[129] She further testified that the applicant would go through the bill and remove items that he felt were for her, solely.

[130] As court-ordered, the applicant continued to pay for half the mortgage and the parties’ joint lines of credit monthly, even after he moved out of the matrimonial home on August 1, 2020. This continued until the house sold in January 2024.

[131] The applicant is not seeking repayment from the respondent for mortgage payments made until the house sold.

[132] There is no dispute that s. 9 of the Guidelines applies retroactively to the date the parties separated.

[133] I find it appropriate for support obligations to flow once the applicant vacated the matrimonial home, as to do otherwise would be unfair. The parties agreed to continue to reside together following their separation and to continue to pay jointly for all expenses related to the home and the children.

[134] I am satisfied this meant that the children were adequately provided for during this time. Table child support presupposes the applicant’s requirement to pay child support, as it assumes that parents sharing their accommodation with the children on a day-to-day basis meet their obligations to the children in accordance with their ability. Here, there is no evidence to suggest otherwise. See: Moore v. Fernandes, 2001 CanLII 28263 (ON SC), [2001] O.J. No. 5192.

[135] The applicant’s child support obligations therefore commence August 1, 2020.

[136] The parties did not request the court consider a departure from the straight s. 9 set-off.

[137] In accordance with the income of the applicant, as determined by Ms. Poole and this court, and the respondent’s income, child support under s. 9 of the Guidelines from 2019 to 2022 would flow as follows:

Year	Applicant’s obligation	Respondent’s obligation	Straight set-off per s. 9	Support paid per Order per annum	Findings
2019	income of $154,280 = $2,128/month	income of $73,015[^5] = $1,109/month	$1,019/month (or $9,171 -April–Dec.)	No order, respondent seeks April 2019 commencement date	No support owing by applicant
2020	income of $130,616 = $1,845/month	income of $78,329[^6] = $1,187/month	$658/month (or $3,320 August–December)	$5,000	($1,680) overpayment
2021	income of $126,267 = $1,925/month	income of $81,262[^7] = $1,230/month	$695/month (or $8,340/annum)	$12,000	($3,660) overpayment
2022	income of $205,857 = $2,747/month	income of $93,089[^8] = $1,387/month	$1,360/month (or $16,320/annum)	$12,000	$4,320 underpayment
2023	income of $392,054= $4,982/month	income of $92,092 = $1,385/month	$3,597/month (or $43,167/annum	$12,000	$31,167 underpayment

[138] The applicant owes the respondent retroactive Table child support, for the period of August 1, 2020 up to and including December 31, 2023, in the sum of $30,147.

Ongoing Support

[139] The applicant’s income for 2023, as determined above, will be varied going forward and is subject to review upon exchange of financial disclosure in the years to come.

[140] Effective January 1, 2024 and payable on the first day of each month thereafter, the applicant shall pay to the respondent Table child support in the monthly amount of $3,597.

Section 7 Expenses

[141] The onus is on the respondent to demonstrate that the claimed expenses fall within one of the categories under s. 7 of the Guidelines and that the expenses are necessary and reasonable, having regard to the parents’ financial circumstances. See: Park v. Thompson, 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (Ont. C.A.).

[142] The steps for determining whether to make an award under s. 7 of the Guidelines were set out by the Court of Appeal in Titova v. Titov, 2012 ONCA 864, at paras. 23–25.

[143] I must first calculate each party’s income for child support purposes, determine whether the claimed expenses fall within one of the enumerated categories of s. 7 expenses, and then determine whether the claimed expenses are both necessary “in relation to the child’s best interests” and reasonable “in relation to the means of the spouses and also those of the child and to the family’s spending pattern prior to separation.”

[144] Many of the expenses claimed by the respondent are not s. 7 expenses under the Guidelines, for example, the cost of birthday parties, trips to Canada’s Wonderland, March break travel expenses, the child’s mattress, snow pants, winter boots, school lunches and field trips.

[145] Section 7 expenses incurred by the respondent alone, prior to the applicant’s departure from the matrimonial home, are, in my view, still owing. The children are entitled to the benefit of s. 7 expenses of which the applicant was aware when living in the home.

[146] Having reviewed the submissions made by the parties and considered the evidence at trial, in particular regarding the family’s spending patterns prior to separation, as well as the application of s. 7 of the Guidelines, I find the followings s. 7 expenses are properly owing:

[147] According to the income determination set out above, the respondent’s contribution to these amounts for 2019, 2020, 2021, 2022 and 2023 are 68%, 62.5%, 61%, 69% and 81%, respectively.

[148] Therefore, the applicant’s obligation to contribute to s. 7 expenses, for the period from March 31, 2019 up to and including December 31, 2023, amounts to $7,384.20.

[149] On an ongoing basis, the parties are to contribute to s. 7 expenses with the applicant contributing 81% of the expense and the respondent contributing 19%.

Issue #5: Equalization of Net Family Property

[150] As part of their closing submissions and at the request of the court, the parties produced a jointly prepared Form 13C: Comparison of Net Family Property Statement.

[151] Based on this document and the individual submissions of counsel, the court is required to decide the appropriate value/inclusion of the following assets and/or debts.

Household Goods and Furniture

[152] It is the applicant’s position that $8,000 of household contents be allocated to the respondent.

[153] The parties did not adduce any evidence on the value of the household contents at the date of separation at trial.

[154] According to the applicant, he took his toolbox and clothes and left the other contents for the respondent.

[155] It was the respondent’s evidence that the household items were divided without a valuation of contents.

[156] She claims the applicant took his clothes, all of the children’s ATVs and dirt bikes, a motorcycle, all of the equipment in the garage, the vintage liquor collection, his jewelry and his iPad.

[157] The respondent, in written submissions, states that the value of the items retained by each party was relatively comparable. In the absence of any evidence to the contrary and with no evidence that the respondent retained $8,000 worth of contents, no amount will be allocated to either party for household chattel.

2013 Mercedes ML63 & BMW X5

[158] The respondent requests the sum of $12,000 be allocated to the applicant as a valuation date asset. The sum is based on her version of events, as follows. Prior to separation, she submits she was hoodwinked into trading the 2013 BMW X5 that she drove for a Mercedes.

[159] The trade-in value for the BMW X5 was $12,000.

[160] She understood that the applicant was replacing her vehicle. Adduced as evidence at trial was the lease agreement for the Mercedes. It was signed in 2016. The lease is in the name of both parties; however, both parties conceded that it was the respondent who drove the vehicle. There is no dispute that 193 Ontario Inc. made all the payments for the Mercedes.

[161] The trade-in and acquisition of the Mercedes was several years prior to the parties’ date of separation. By the time the parties separated in 2019, the trade-in on the X5 was long gone, and the respondent was driving the leased Mercedes.

[162] The BMW was not owned on the valuation date. The value of this vehicle cannot be properly traced on the evidence before me. The amount sought to be included on the applicant’s side of the ledger is rejected.

Respondent’s Bell Canada Pension and Contingent Tax Liability

[163] The applicant takes the position that the respondent’s pension be valued at $61,350.23, and the respondent submits the pension is correctly valued at $61,672.63.

[164] The respondent relies on the Bell Canada Defined Contribution (DC) Pension Plan Statement showing a closing balance as of March 31, 2019 of $61,672.63.

[165] I am uncertain how the applicant’s amount was derived. He submits the respondent did not obtain a proper family law valuation, noting that she relies on two unsigned letters from the benefits administrator stating the date of marriage and valuation date value.

[166] However, this is the only evidence before the court and the applicant does not dispute the date of marriage value of the pension as set out in the letter from the plan administrator.

[167] I accept the only and best evidence before the court on the value of this asset as of the valuation date, which is the respondent’s figure and the corresponding contingent tax liability, as both parties utilized a 20% tax rate.

Applicant’s RRSP, CRA Home Buyer’s Plan and Contingent Tax Liability

[168] The respondent seeks to include on the applicant’s side of the ledger a value of $4,732 representing his repayment of the Home Buyer’s Plan and the corresponding contingent tax liability of 20%, being $946.40.

[169] She submits the applicant originally sought a deduction for a home buyer’s plan loan of $3,059 but that he was borrowing money from his RRSP, and therefore set-off should be included under the “money owed to you” section of the NFP statement.

[170] When testifying, the applicant did not dispute that he repaid himself $4,732.

[171] The applicant’s NFP statement does not include the home buyer’s deduction or the repayment into his RRSP. There was no evidence presented in support of the home buyer’s plan deduction.

[172] On the evidence presented at trial, I am not satisfied that any of the amounts sought to be included by the respondent are accurate and/or properly traceable. They will be omitted from the calculation.

Applicant’s Personal Loan to his Brother

[173] The applicant alleges that on the valuation date, he owed his brother $9,000, which was the amount that he borrowed to pay property tax arrears accrued for a period of three years.

[174] The applicant's brother did not testify as to the loan. No bank statements, copies of cheques or drafts were produced at trial. Attached to the applicant’s NFP dated February 20, 2024 is a Promissory Note dated January 15, 2009 signed by the applicant and his brother. The principal amount is $14,000. There is no indication of what the borrowed funds are for.

[175] The applicant’s evidence on this loan was scant. He testified that he repaid his brother. He did not testify as to when or how the repayment was made. He claims he gave the respondent cash which he deposited in the RBC account to pay property tax. No evidence was adduced to support this.

[176] A 2019 Notice of Past Due Property Taxes[^9] was produced indicating that, as of April 2019, the month after the valuation date, $9,758.11 was owing by the parties.

[177] Additionally, the Notice of Registration of Tax Arrears Certificate[^10] dated November 25, 2021 shows a balance owing in 2018, a minimal payment of $50.48 in 2019, and no payments made in 2020 or 2021.

[178] These documents contradict the applicant’s evidence that borrowed funds were applied to the payment of the property tax. As such, this debt will be omitted from the calculation.

Respondent’s Sole MBNA Credit Card

[179] The respondent alleges the valuation date debt owing for this credit card was $8,816.67, and the applicant alleges that it was $8,643,40. The negligible difference is the interest that accrued from statement period to statement period.

[180] The applicant’s figure is the “previous statement balance” on the respondent’s credit card statement for the period of March 12, 2019 to April 9, 2019. The respondent’s figure is the “new balance” from the same statement. The valuation date is March 31, 2019. The interest charges, according to the statement, accrued on April 9, 2019. Accordingly, I take the view that the “previous statement balance” is accurate and I accept the applicant’s figure.

Applicant’s BMW M3 & Respondent’s Honda Civic on Date of Marriage

[181] The applicant seeks to claim the 2002 BMW M3 he alleges to have owned on the date of marriage, valued at $19,000. The figure was obtained from the jointly prepared NFP Comparison. It is significantly less than the value of $39,675 set out in the applicant’s NFP statement dated February 20, 2024.

[182] The respondent seeks to claim her Honda Civic owned at the date of marriage, valued at $15,000.

[183] The applicant testified that he purchased the vehicle before marriage in a damaged state for approximately $30,000. He produced no evidence in support of the purchase price. It was his evidence that he spent $25,000 fixing the vehicle, that it was in the shop on the date of marriage, and that he sold it during the marriage to someone in Montreal for approximately $19,000. He produced no proof of sale or proof of the cost of repairs. The applicant claimed in cross-examination that the transmission was worth $20,000 but he produced no evidence in support of same.

[184] The respondent takes the position that the vehicle was significantly damaged, mere salvage, and had no value at the date of marriage. She relies on the Carfax history documentation which describes the vehicle as “junk” and “salvage,” and states “vehicle declared total loss” in and around the date of marriage.

[185] I give less weight to the evidence of the applicant as there is lack of documentary evidence that would or should have been easily accessible to him. I also find his statements about the vehicle to be self-serving and exaggerated. As it relates to this issue, I prefer the respondent’s evidence.

[186] The respondent testified that she purchased a Silver Honda Civic SI for $23,000, two years prior to moving into the house in 2023. She claims the applicant bought it from her to trade it for her next vehicle. She testified that she sold the Honda to the applicant in 2008 for $15,000.

[187] The applicant acknowledged that the respondent owned this vehicle on the date of marriage but he did not agree that it was sold to him and he did not agree to the value.

[188] The respondent testified, and I accept, that she called the dealership to obtain the purchase agreement, but their computers have since been updated and when her vehicles were traded in by the applicant, she never saw the paperwork.

[189] However, the lack of any corroborating evidence as to the value of the respondent’s Honda on the date of marriage results in no value being entered into the calculation, as is the case for the applicant’s BMW M3.

Applicant’ TD Line of Credit at Date of Marriage

[190] The respondent takes the position that a $12,000 debt at date of marriage ought to be inserted on the applicant’s side of the ledger. This alleged debt was revealed during the trial.

[191] The applicant’s TD line of credit (“LOC”) statements were introduced as evidence at trial, indicating the applicant owed $12,633.38 as of May 3, 2006, and that he owed $12,260.20 as of August 1, 2007.

[192] In addition to the documentary evidence, the applicant testified that the balance on this LOC would probably have been in the amount of $12,000 at the date of marriage, in January 2007.

[193] Based on the applicant’s own testimony and the documents presented, I accept that $12,000 be added to the applicant’s NFP as a date of marriage debt.

Applicant’s CRA Tax Debt on Date of Marriage

[194] There is no dispute that the applicant had a debt owing to Canada Revenue Agency (CRA) in the amount of $53,633.37 on valuation date.

[195] However, the respondent seeks to include in the applicant's NFP, as a date of marriage debt, the sum of $75,000, representing taxes she claimed he owed to CRA in 2007.

[196] The applicant testified that it was his best understanding that the CRA audit took place around 2006/2007 or 2008/2009. He could not recall what period the audit covered. He offered to look up the information but did not.

[197] He deferred many questions about this audit to his bookkeeper, Ms. Drakos.

[198] It was his evidence that the audit was completed long after the date of marriage and a large sum owing has been paid down ever since.

[199] A letter from CRA dated July 16, 2008 addressed to the applicant indicates he was audited for undeclared tip income when employed as a hairdresser.

[200] According to the letter, CRA combined income tax and GST audit of a corporation for which the applicant was a shareholder and an employee, the result of which was various proposed adjustments. The letter states that the audit stems from a failure to include income from tips for 2005 and 2006. The applicant's income was increased by $1,978 in 2005 and by $1,492 in 2006.

[201] The letter does not set out what was owing as of the day it was written, July 16, 2008, or as of January 2007.

[202] The respondent takes the position that the audit started in approximately 2005 and continued to about 2008. At the time, she was looking after the applicant’s bookkeeping.

[203] It was the respondent’s evidence that approximately $150,000 was owing by the applicant in 2005.

[204] Ms. Drakos testified that by the time she became involved with the applicant in 2015, approximately $110,000 was owing to CRA.

[205] The respondent asked the court to accept hers and Ms. Drakos’ evidence to extrapolate a date of marriage debt of $75,000, representing at least one half of the $150,000 she claims was ultimately found to be owing in 2005.

[206] The applicant claims he does not recall what, if any, debt was owing to the CRA on the date of marriage. Despite deferring all questions about the audit to Ms. Drakos, he refused to allow her to log into his CRA account to determine the dates of the audit and the amount owing.

[207] In a mid-trial ruling, I concluded I could not authorize the witness to go into the applicant’s CRA records in the face of his withholding of authorization.

[208] The respondent asks the court to draw an inference from the applicant’s failure to adduce this evidence and claims his refusal to disclose information properly producible in this proceeding is egregious. She asks the court to accept the date of marriage debt of $75,000.

[209] The applicant’s conduct relative to this debt is disingenuous. To heavily rely on a bookkeeper to provide the court with relevant information, only to withhold consent and prevent her from accessing information he claimed she knows, is underhanded and self-serving. It begs the question, what would be the result of her access to this information?

[210] Counsel for the applicant submits the audit relates to periods of time that predate the marriage and this does not bespeak of finding that there was a liability on date of marriage.

[211] The applicant relies on Leckie v. Leckie, 2004 CanLII 10487, [2004] O.J. No. 1550, wherein the Court of Appeal found that a trial judge erred when calculating NFP by including part of a severance package received by each spouse.

[212] The packages were received after the parties separated. The trial judge apportioned each severance package by dividing the years of marriage by the years of service and including that share in the NFP calculation.

[213] The Court of Appeal concluded that the severance packages were not property as of separation because they did not exist at the date of separation, and neither party had any entitlement to such package as at the valuation date.

[214] I distinguish Leckie from this case for the following reasons:

a) We are dealing with debt on date of marriage, not property on valuation date. The audit/liability did not come into existence on the valuation date, or after the valuation date.

b) There is no dispute that this debt was owing two years prior to the marriage and at the separation.

c) No evidence was adduced by anyone, including the applicant, that this debt was zero at date of marriage.

[215] The applicant had the ability to provide specifics, but he did not, leaving the court to rely only on the evidence of the respondent and the applicant’s bookkeeper.

[216] Absent evidence that the debt was zero and with evidence that a sum was owing, an amount needs to be included. The question is, what amount. Determining the amount is not an exact science. The amount should reflect what is present in the evidence.

[217] The purpose of equalizing net family property is to equally divide between the parties the net wealth accumulated from the date of marriage to the date of separation/valuation date.

[218] The calculation will be affected by a debt brought into the marriage by one party. If the debt is paid off, in part or in full, during the marriage, it can be assumed that family assets, and correspondingly, net family wealth, may have been diminished.

[219] The NFP equalization payment requires fairness to both spouses.

[220] An individual must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court: Carriere, at para. 65. The applicant’s failure to do this results in an adverse inference being drawn against him.

[221] I accept the bookkeeper’s evidence that the CRA debt owing in 2015 was approximately $110,000. Four years later, when the parties separated, this debt was reduced to approximately $53,600. In four years, the debt was paid down at a rate of approximately $14,100 per year. This is consistent with the applicant’s evidence that large sums have been paid down since the audit was completed and during the marriage.

[222] Having consideration for the purpose of equalizing net family property and the effect this debt has on the calculation, I believe it is fair to include an amount that acknowledges that the family wealth was diminished during the marriage as a result of paying off this debt.

[223] If the payoff rate as set out above was consistently applied retroactively to the date of marriage from the $110,000 owing in 2015, it would result in a date of marriage debt of more than $75,000.

[224] The amount sought to be included by the respondent is not unreasonable and appropriately concedes a reduction for any accrued debt prior to the date of marriage. I also find the amount proposed acknowledges that the audit was ongoing following the date of separation.

[225] The amount of $75,000 will be included as a date of marriage debt of the applicant.

Florida Property

[226] A considerable amount of time was spent during the trial tendering evidence about a condo unit located in the state of Florida in which the respondent, on valuation date, was a one-third legal and beneficial owner with the intent to carry with it a right of survivorship. Her brother and mother were the remaining one-third owners.

[227] The applicant seeks to discredit the respondent due to her choice to present her position as not having ownership interest in the property rather than acknowledge that she did and then claim the value as excluded under subsection 4(2) of the Family Law Act, R.S.O. 1990, c. F.3.

[228] Whether the respondent's interest in the Florida condo was included then excluded—or excluded altogether—makes no difference in the NFP calculation. As such, I will comment no further except to note the following.

[229] The parties agree that the respondent’s interest in the condo would constitute excluded property as she received the assets gratuitously. It would have been accurate to claim the condo as an asset and then to claim the exclusion.

Conclusion

[230] As a result of the foregoing, the applicant owes the respondent the sum of $11,942.32. There is no reason why the standard prejudgment interest rate should not apply from the valuation date.

[231] If any arithmetic errors are identified by either party, they may address same, in writing, with submissions made though my judicial assistant.

Issue #6: Post-Separation Adjustments

[232] In this section, the post-separation adjustments relating to the joint Visa, the joint LOC and outstanding property tax will be determined.

Joint RBC Visa

[233] The parties both used the RBC Visa prior to and following their separation. The credit card debt was paid from the proceeds of sale of the matrimonial home.

[234] On the date of separation, $15,176.43 was owing. When the matrimonial home was sold, $18,377.21 was paid towards the outstanding balance.

[235] Both parties prepared spreadsheets in relation to this debt. The spreadsheets included expenses relating to the children, including expenses found to be s. 7 expenses above. The applicant’s calculation assumed children’s expenses were to be shared equally, and the respondent calculated what she believed to be their proportionate contribution. The court was not provided with figures net of children’s expenses.

[236] The applicant asks that the respondent reimburse him $32,592.53,[^11] but the spreadsheet[^12] prepared by Ms. Drakos on his instructions sets out that $19,142.63 is owed to him. This discrepancy was not explained.

[237] The respondent calculated items accrued by each party since the date of separation and subtracted their respective payments, including the applicant’s payment of $35,536.46. According to her calculations, she concedes the applicant overpaid by $27,847.76. It appears that she calculated the applicant’s overpayment and added her accruals plus interest then divided that amount by one half—suggesting each is responsible for $16,150.20. In other words, she claims $32,300.40 is owing to the applicant.

[238] There is an agreement that each party should be responsible for their own charges and that the applicant should receive credit for his overpayment.

[239] Despite what I think to be the improper inclusion of the children’s expenses, the parties’ figures differ by less than $300. I prefer the logical methodology set out by the respondent in her draft order and conclude that the applicant is owed $32,300.40.

[240] I do not agree that it is appropriate to divide this figure in half given the agreement between the parties to each be responsible for their own charges.

[241] On the sale of the house, $18,377.19 was paid to RBC Visa[^13]. The respondent’s share of the amount owing, being $9,188.62, was paid to this debt.

[242] The remaining amount owing to the applicant is $23,111,80, which will be offset to reduce his spousal support obligation as determined below.

Joint RBC LOC

[243] The parties were liable for two LOCs on the date of separation. One LOC had a date of separation amount owing of $90,000. This LOC was consolidated with the mortgage when the parties refinanced in June 2021.

[244] The second LOC had a date of separation amount owing of $65,667.37. The LOC was also consolidated with the mortgage but it remained open for the parties to use.

[245] As with the joint Visa, the parties agreed to each individually be responsible for their usage of the LOC.

[246] The parties spent considerable time and effort calculating each of their individual charges and corresponding interest. There is not a great disparity in what each party says the other owes. They both agree the net results in the applicant being owed a sum of money.

[247] The respondent seeks to divide the amount owing to the applicant by one half.

[248] This, in my view, is an incorrect approach. While the financial institution might view the parties as jointly and severally liable, they clearly agree that they are liable to one another for their own use of the LOC and are responsible to pay for the use on that account.

[249] According to the respondent, she accrued $16,500 and the applicant accrued $2,250 in charges following the date of separation. The applicant’s interest on the charges amounts to $614.66 and she acknowledges that he paid $3,035.05 on account of interest and charges/payment. She takes the position he should be credited $3,097.01 for his overpayment.

[250] The respondent also takes the position that interest on her $16,500 charges amount to $6,426.91. She claims to have paid $4,546.50 on account of interest and $3,520.44 on account of principal, leaving her with a total amount owing of $14,859.97. She submits the total amount owing to the applicant is $17,956.98.[^14]

[251] However, in her Post-Separation Adjustment Brief[^15], specifically in the Comprehensive Summary for LOC, she sets out that she owes the applicant $18,342.70.

[252] According to the applicant, the respondent incurred charges, as of July 31, 2021, of $20,142.39 less payments of $3,249.64, leaving a debt owing by her of $16,892.75. As for his charges, he incurred the amount of $4,282.41 and paid $3,137.56, leaving him with a debt owing of $1,144.85.

[253] The applicant further submits that from July 31, 2021 to December 31, 2022, the respondent incurred charges of $6,756.10, the applicant incurred charges of $1,232.90, and the respondent therefore owes a further debt of $5,523.80.

[254] On the figures above, the total amounts the applicant claims to be owed is $21,271.09, yet the spreadsheet prepared by Ms. Drakos[^16] does not specify what amount is owed by the respondent, citing the calculation will be performed shortly.

[255] I prefer the methodology of the respondent as it relates to this debt as set out in Exhibit 84. It is logical to consider total charges on each statement, apportion charges per party, consider payments made, and apportion interest on each charge.

[256] However, on review of the respondent’s apportionment of interest calculation, I note an error. Dividing each party’s charges by the total charges results in an apportionment of 88.21%–11.79% (respondent to applicant), not 91.28%–8.72% as set out in the Comprehensive Summary for LOC.

[257] The re-calculation results in $17,911.09 owing to the applicant by the respondent.

[258] The LOC merged into the mortgage when the parties refinanced in 2021. The mortgage was paid from the proceeds of sale of the matrimonial home. There was no evidence tendered on how much of the LOC was subsumed into the mortgage.

[259] Having concluded that it is not correct to divide the amount owing in half, and with no evidence or submissions made regarding what amount, if any, should be reduced because of the respondent’s contribution towards the mortgage, the amount owing to the applicant will not be subject to further adjustment.

[260] The amount of $17,911.09 owing to the applicant will be offset to reduce his spousal support obligation as determined below.

Property Tax

[261] The applicant seeks reimbursement for property tax paid in the amount of $10,729.78, according to his draft order, but equal to $21,084.21 in his written closing submissions.

[262] The respondent concedes a credit is owed to the applicant; however, she claims it is in the amount of $11,537.48.

[263] The following evidence is undisputed:

a) On date of separation, $9,758.11 was owing for property tax.[^17]

b) In December 2021, the applicant paid $23,486.18 towards property tax owing to the end of 2021, including tax arrears dating back to 2018.[^18]

c) Half of the amount paid in January 2024, on closing of the sale of the matrimonial home, should be credited to the applicant in the amount of $5,778.75.[^19]

[264] The respondent calculated property tax owing between the date of separation and the date the applicant moved out of the matrimonial home. She took the total amount owing in the given year, divided the amount by 12 months and multiplied the result by the number of months in 2019 and 2020, from date of separation to when the applicant moved out of the home. She claims $7,969.34 accrued.

[265] I agree with her methodology in calculating this amount and find that each party is responsible for one half of this amount. Both parties are equally responsible for property taxes owing at date of separation.

[266] I also find that it is appropriate for the applicant to be fully credited any amounts paid after August 1, 2020, when he vacated the matrimonial home but paid taxes.

[267] Accordingly, the applicant will receive a credit for the $23,486.18, plus the $5,778.75 paid, less half of property taxes owed at date of separation in the amount of $4,879.06 and less half of property taxes accrued following the separation to the date he moved out of the matrimonial home in the amount of $3,984.67.

[268] This results in credit to the applicant in the amount of $20,401.20 for property tax.

[269] The applicant submits this amount could either be credited against child support owed by the applicant from August 1, 2020 or offset against the equalization payment.

[270] Given the amount owing in child support arrears, I would credit this post-separation adjustment against Table support owing for the period of August 1, 2020 to December 31, 2023, calculated as follows: $30,147 less $20,401.20. This reduces the applicant’s arrears of Table child support to $9,745.80 effective December 31, 2023.

Issue #7: Spousal Support

Position of the Parties

[271] The applicant submits the respondent is not entitled to spousal support.

[272] The respondent submits she is entitled to spousal support retroactive to the date of separation. She focuses on the length of the marriage and the functions performed during the marriage. The respondent made additional submissions relative to range and retroactivity, which will be addressed below.

Legal Principles

[273] Under s. 15.2(1) of the Divorce Act, the court can make an order for spousal support. In making an award of spousal support, the factors identified in s. 15.2(4) must be considered:

… the condition, means, needs and other circumstances of each spouse, including

a) the length of time the spouses cohabited;

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

c) any order, agreement or arrangement relating to support of either spouse.

[274] The objectives of an award for spousal support can be found at s. 15.2(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.

[275] All four objectives must be considered. “No single objective is paramount”: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 852; Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 35.

Analysis and Findings

[276] Most of the evidence about the respondent’s entitlement to spousal support was uncontradicted by the applicant. He did not dispute that the respondent provided a litany of what she did to manage the household and look after the children during their period of cohabitation and marriage.

[277] The following evidence was not contradicted by the applicant:

a) During their marriage, the respondent was responsible for the care of the children and the household while the applicant worked long hours.

b) The respondent took two maternity leaves when the children were born and her Bell Canda pension was suspended during that time. She otherwise worked full-time.

c) The respondent was primarily responsible for locating the children’s daycare and healthcare providers, taking them to school and to all appointments.

d) The respondent was involved with the children’s schooling, from making their lunches and attending field trips to being primarily responsible for homework.

e) The respondent was responsible for grocery shopping, making meals and doing the dishes.

f) The respondent was responsible for researching, registering, and taking the children to extracurricular activities and tournaments. She acted as a coach/manager for the children’s teams.

g) The respondent was responsible for identifying, together with school staff and physicians, the child Rhys’ vision issues, allergies, and ADHD diagnosis, and for pursuing his Individual Education Plan (IEP).

h) The respondent was responsible for obtaining and filling the child’s prescriptions and tracking him daily to reduce risk.

i) The respondent was primarily responsible for connecting the children with tutors.

j) The applicant shared in lawn cutting and snow clearing, but the respondent was responsible for housecleaning, meals, dishes, laundry, and landscaping.

k) The applicant worked long hours and often was not back until after dinner or after the children were asleep.

l) The parties separated for approximately 14 months in 2012/2013. During the period of separation, the respondent was solely responsible for the children, aged approximately 5 and 3 at the time.

m) After the parties separated, the applicant slept in the basement and had limited involvement with the children and household upkeep.

[278] Despite these concessions, the applicant submits that spousal support is not a reward for past services. Rather, it is intended only to address the adverse economic consequences, if any, occasioned by the spouse seeking support.

[279] I disagree. The consideration of past services is not a reward per se but nonetheless a factor that should not be overlooked. It is not possible to assess adverse economic consequences without considering past services. To do so would be inconsistent with the factors and objectives for an award of spousal support set out in the Divorce Act and the jurisprudence on spousal support.

[280] In fact, s. 15.2(4)(b) requires the court to consider the functions performed by each spouse during cohabitation.

[281] The parties’ positions on entitlement also differ based on what each suggests the court can infer or conclude from the respondent’s evidence, as detailed below.

Promotion Opportunities

[282] It was the respondent’s evidence that she turned down nine opportunities for advancement, testifying one promotion would have increased her annual salary by $10,000.

[283] It is not clear from the evidence whether every promotion would have resulted in an increase in income.

[284] The applicant requests that the court infer that the primary reason the respondent turned down promotions was because the positions involved considerable time in Toronto or Montreal, and she did not want to spend time away from the children. He submits that she was a helicopter parent.

[285] The applicant further submits the parties did not have significant discussions about the promotions, and that he could have pursued his entrepreneurial endeavors from any location.

[286] The applicant’s company, by name, gives the impression it is geographically connected, but even if I accept his submission that he could and/or would have worked from elsewhere to support the respondent’s promotion opportunities, he led no evidence of how or if he would be responsible for the litany of household and childcare responsibilities that he agreed the respondent attended to.

[287] I interpret the term “economic disadvantage” broadly. While the respondent worked full-time and was able to acquire marketable skills during the marriage, but for maternity leaves, I find she stayed in a less demanding job to assume greater responsibility for childcare.

[288] The children were young when these promotion opportunities presented, and they relied on the respondent for caregiving.

[289] I am not required to calculate tangible foregone income to conclude that the respondent missed opportunities during the marriage and structured her employment around the demands of childcare.

[290] While I agree with the applicant that a mere disparity of income does not equate to entitlement, it is important to ask why there is such disparity. In this case, it is because the respondent was responsible for all childcare and household tasks for 13 years while the applicant’s focus was on his business/income.

[291] The evidence establishes that when the parties met, the applicant was a licensed hairstylist, employed by his father, while the respondent worked at a bank. During the marriage, the respondent took further training in the course of her employment and acquired further skills as required by her employer, including her current employer. The applicant went from being a licensed hairstylist to an entrepreneur.

[292] During this time, the respondent was responsible for everything related to the home and the children. She assumed this role and the applicant's career advanced as a result.

[293] I find the respondent’s sacrifices enhanced the earning potential of the applicant. Had he assumed some or all of the childcare responsibility, he would not have been able to work long hours.

[294] I disagree with the applicant’s submission that his success has everything to do with who he is. His entrepreneurial success, in my view, was likely the combination of many factors. Having little to no responsibility in childcare, and all that it involves, is a substantial factor.

[295] These circumstances militate in favour of a finding of entitlement.

Involvement with Children

[296] The applicant asks the court to infer that the respondent “over did it” with respect to her involvement with the children. He submits she was the hovering or helicopter-type parent who chose to be more hands on than was reasonably required.

[297] His attempt to minimize the undisputed functions and tasks the respondent performed during cohabitation is ineffective.

[298] I find that there was no shared parenting throughout the marriage and the respondent was responsible for almost all of the childrearing.

[299] The applicant did not demonstrate that he was capable or able to perform the childcare tasks and household duties undertaken by the respondent.

[300] He admits the respondent is highly intelligent and very astute. She elected a secure employment position which allowed her to work full time and care for the children and household. Conversely, the applicant chose the entrepreneurial route, which came with risk and required a significant time investment that kept him out of the home until after childrearing and household tasks were performed. He was permitted to do this because the respondent took over disproportionately on the home front.

[301] I also rely on the respondent’s undisputed evidence that she acted as a bookkeeper for the applicant’ business prior to Ms. Drakos’ involvement. She contributed to the operation of the applicant’s business while working full-time and taking on the lion’s share of childcare. Her contribution to the operation of the applicant’s business favours entitlement.

[302] The respondent was a secondary earner in the family. The applicant always earned more than her. For 13 years, they pooled their financial resources. Once separated, the respondent lost the benefit of the pooling of income. This contributes to a finding of entitlement.

Respective Net Worths

[303] The applicant submits the spread between the parties’ respective net worth favours the respondent. The respondent argues the inverse.

[304] Little evidence was led by either party concerning this factor. The evidence that was led was inaccurate.

[305] The applicant’s most recent Financial Statement sworn November 2023[^20] values all property owned at $1,175,186.59. This figure excludes the current value of 193 Ontario Inc.

[306] According to the same Financial Statement, the applicant’s current total debts and liabilities amount to $1,401,703.92. This figure excludes the current shareholder loan due from 193 Ontario Inc. and, further, includes additional debt that was likely paid off when the matrimonial home sold in January 2024.

[307] The respondent’s most recent Financial Statement sworn February 19, 2024[^21] sets out her total property valued at $464,154.17. At trial, the respondent admitted to excluding money she received as an advance on proceeds of sale from the matrimonial home. The current value of all debts and liabilities according to her Financial Statement is $74,262.82.

[308] Based on the inaccuracies above, I cannot place too much weight on financial statements or on either party’s submissions regarding their current net worth.

[309] Furthermore, I give less weight to this argument given the factors and objectives set out in the Divorce Act.

[310] I acknowledge that a determination of the property claim could affect the outcome of the support claim. In this case, the applicant owes the respondent an equalization payment. However, where entitlement is not solely rooted in “need,” the significance of the payment is minor.

Economic Self-Sufficiency

[311] The applicant submits the respondent is economically self-sufficient and her current standard of living is at least equal, or likely exceeds, the standard of living enjoyed during married cohabitation. He further submits that she enjoys a job and income security, and works from home, free of costs associated with commuting, parking, wardrobe and meals while at work.

[312] The respondent submits that she enjoyed a different pattern of vacation, had no car costs, and had a higher standard of living when cohabiting with the applicant.

[313] As set out by the Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 53:

… a determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.

[314] During their cohabitation, I find the parties enjoyed a level of financial interdependence. Though they carried a significant amount of debt (LOC and Visa), their standard of living is not comparable to the respondent’s at present.

[315] Post-separation, the respondent moved into her partner’s house because the matrimonial home was sold. She claims she had nowhere else to go. While she earns a good income, I accept that the status of her financial future and expenses are uncertain.

[316] In contrast, the applicant lives with his brother, with no household financial obligations. His Financial Statement reveals no housing expenses and, following the sale of the matrimonial home, he has had no significant debt to pay off.

[317] While the respondent earns a significant income and there is the potential for her income to increase, this is outweighed by the 13.5 years of financial interdependence she grew accustomed to. The length of the cohabitation presumes her claim to an equal standard of living upon dissolution.

[318] The extent to which the respondent is already self-sufficient will be considered when addressing the amount and duration of support.

Re-Partnering

[319] The applicant submits the respondent is in a committed relationship and resides with a partner who contributes to her current standard of living. He asks the court to infer that the new partner will provide her with committed financial assistance going forward.

[320] According to the respondent, her new partner has no responsibility in law, at this point, to support either the respondent or the children.

[321] She has no plans to marry her partner. She pays for half of the mortgage and house insurance, and she plans to pay half of the property tax. The respondent testified that she pays for 100% of the internet bill.

[322] Re-partnering does not negate her entitlement to spousal support at this time, given the compensatory nature of entitlement. This might change over time. At present, the 13.5 years of cohabitation and financial interdependence is considered more significant than a two-year relationship.

Formula, Range and Duration

[323] I have concluded that the respondent has a compensatory entitlement to support.

[324] The respondent also has a needs-based claim as the impact of the parties’ separation left her a much lower percentage of the family income. However, this basis of entitlement may be less significant with the passage of time.

[325] The respondent will require time to recover from the impact of the role she assumed in the relationship and the adjustment to the lower standard of living, particularly as she may have a disproportionate obligation towards the children despite equal time-sharing.

[326] The “With Child Support” formula within the Spousal Support Advisory Guidelines (SSAG) applies as there are dependent children of the marriage and a concurrent child and spousal support obligation payable to the same person.

[327] The respondent seeks mid range support for an undefined duration.

[328] This is an appropriate case for mid to lower range support based on the following evidence and findings:

a) The respondent’s compensatory entitlement is not as strong as would be the case if she were not self-sufficient, did not work during the marriage, and/or stayed home full or part-time to care for the children.

b) The respondent does not have significant need. She has a solid income, stable, employment, reduced living expenses, and/or shared housing costs. She has a degree of self-sufficiency that will likely increase over time. Her income has increased year over year since separation.

c) The respondent was 39 years old at date of separation and is currently 45. She has a long timeline for continued self-sufficiency.

d) Because the respondent does not have a very strong compensatory claim for support, it is therefore appropriate to take a less generous approach to duration. The SSAG suggest a duration, subject to variation and possibly review, of a minimum of 6.75 years and a maximum of 13.5 years from the date of separation.

e) The respondent is receiving an equalization payment, albeit not sizeable, from the applicant.

f) More recently, the parties have had a shared parenting arrangement and the respondent is no longer the children’s full-time caregiver. However, shared parenting in this case likely speaks to physical time. On a balance of probability, I find the respondent is still responsible for arranging the children’s medical appointments, registering their extracurricular activities and looking after their educational and medical needs.

[329] Further, considering the foregoing and the two leading cases on review orders, Leskun v. Leskun, 2006 SCC 25, and Fisher, I find it is appropriate for spousal support to be reviewed eight years post separation, or in March 2027, with no requirement to demonstrate a material change in circumstance. By then, the respondent will be approximately 47, and the children will be approximately 18 and 16 years old, respectively.

[330] Entitlement to spousal support may terminate eight years post-separation if all factors that gave rise to entitlement diminish. For example, the respondent’s disproportionate obligation towards the children will likely decrease over time, the impact of her role in the marriage may no longer be an operative factor, and the passage of time will allow for continued self-sufficiency and permit the respondent to adjust to the reduction of pooled family income.

[331] Additionally, the respondent’s living expenses may change over time with the permanency of her new relationship or potential break-up. All the factors above are materially uncertain currently and are likely to change in the future.

[332] A review permits for adjustment if there are unforeseen issues or circumstances involving the children. But for the children, I would have ordered time-limited support in this case.

Post-Separation Increases in Applicant’s Income

[333] The applicant’s income from 2019 to 2023 was $154,280, $130,616, $126,267, $205,857, and $392,054.

[334] There was fluctuation and variability from 2019 to 2021 but significant increases in 2022 and 2023.

[335] Should the applicant be required to share all, some, or none of the income increases with the respondent in the calculation of spousal support?

[336] The applicant takes the position that his success has nothing to do with the respondent. I have addressed my disagreement with this submission above.

[337] The respondent takes the position that the basis of entitlement to spousal support is an important consideration. I agree.

[338] I have taken guidance from the helpful summary of considerations set by Doyle J., at para. 111 of Want v. Gauthier, 2021 ONSC 7595:

[111] The above development of the law in spousal support confirms that for a spouse to share in the other spouse’s post-separation increases in income, the court should embark on the following steps:

i. Review whether there is some link between the recipient spouse’s efforts and the post-separation increases in income;

o The recipient spouse will usually be permitted to share if they can demonstrate that they made contributions that can be directly linked to the increased income;

o If there is a link which includes the recipient spouse’s direct and indirect contributions, then the recipient spouse’s spousal support is based on a compensatory elements [sic] and he/she will be entitled to share in some or all of the post-separation income;

o Both direct and indirect contributions (like childcare) can give rise to sharing the payor's post-separation increase, whether before or after separation.

ii. Consider the time elapsed since the date of separation;

iii. Consider the reason for the subsequent income increase (new job vs. promotion with same employer, or career continuation vs. new venture)

iv. Consider whether there are other compensatory elements. While there may be a weak link between the recipient wife’s efforts, e.g. he/she made no sacrifices, did not lose career opportunities, did not move for the spouse’s career, there may still be elements of a compensatory nature, such as the career trajectory started as here during the marriage. In these cases, the recipient spouse may be entitled to share in some of the post-separation income increases;

v. Consider whether there is a strong non-compensatory claim, seen for example in some cases of long-term relationships and disability or illness. These cases open the possibility for the sharing of the post-separation income.

vi. Consider sharing post-separation increases of income’s objective of maintaining a reasonable standard of living, as measured by the standard enjoyed during the relationship;

vii. Consider if the income increases take place closer to separation and reflect a continuation of previous employment, training and experience during the relationship; and

viii. Carefully inquire into the facts for some non-compensatory cases.

[339] I find that all the post-separation income should be included when determining support.

[340] In coming to this conclusion, I have considered the following:

a) The objectives and factors set out in the Divorce Act which form the framework for spousal support.

b) The applicant has the ability to pay.

c) The respondent is entitled to maintain a reasonable standard of living as measured by the standard enjoyed during the relationship and has a compensatory claim to support.

d) The parties’ medium-term cohabitation of 13.5 years with financial integration.

e) A large part of the applicant’s income is from the same company he worked for during the parties’ marriage. He did not commence a new job post separation and become more successful. He started his business in the marriage, with the respondent supporting him by assuming childcare responsibility and working as his bookkeeper until 2015.

f) The applicant’s increase in income commenced immediately after separation with the most significant increase two to three years after separation, not several years.

g) The respondent’s contribution and sacrifices, which allowed the applicant to transition to an entrepreneur/business owner. She contributed to the trajectory of his career and income.

Retroactive Spousal Support

[341] The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 207–212, and Colucci, at para. 114(c), set the principles for retroactive spousal support.

[342] A variety of factors to be considered when considering a claim for retroactive support was set out by the Court of Appeal in Bremer v. Bremer, 2005 CanLII 3938 (ON CA), at para. 9:

The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor’s ability to pay; ii) the underlying basis for the ongoing support obligation; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceeding and any explanation for the delay; and viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued.

[Citations omitted]

[343] The respondent asks for spousal support retroactive to the date of separation.

[344] The date of the claim being issued in this case, in November 2019, is the start date for support unless there is a reason to order otherwise.

[345] The family still lived together, albeit separated, until the applicant vacated the matrimonial home in August 2020. During this time, from a financial perspective, they continued to live as they did prior to separation.

[346] After August 1, 2020, the applicant paid for half the mortgage and the parties’ joint lines of credit monthly, until the house sold in January 2024. As determined above, the applicant overpaid property taxes on the home and the LOC for which he is receiving credit/post-separation adjustment.

[347] No evidence was led on the extent of the respondent’s past need dating back to the date of separation or with respect to increased debt.

[348] I exercise my discretion to root my decision on retroactive support in fairness, including what is fair to the applicant.

[349] I accept that while the applicant was living in the home, the parties attempted to continue to operate as an intact family, likely in all respects but, relevant to this analysis, particularly with respect to finances.

[350] A clear divide, both physical and financial, commenced August 1, 2020.

[351] I find that the respondent is entitled to spousal support from the date the applicant vacated the matrimonial home, when there was a clear divide in financial responsibility and she withdrew from financial interdependence.

[352] I also find that any retroactive award could be offset against the applicant’s overpayment towards property tax and the joint LOC, reducing the impact of the retroactive spousal support award. This would lessen any burden on the applicant.

[353] In quantifying retroactive support, it must be acknowledged that spousal support is linked to the amount of child support payable by the applicant. Child support has an impact on the applicant’s ability to pay spousal support.

[354] I have prepared support calculations using the DivorceMate software to calculate figures for each calendar year, using the midpoint between the low and mid range of the SAAGs.

[355] I have utilized the income information known for 2020–2022 and the income determined by this court for 2023. I have also considered the after-tax amount the applicant owes the respondent in retroactive support. The total amount of retroactive support owing has been determined as follows:

Year	Income of the Parties	Midpoint between Low and Mid Ranges	After tax cost/benefit	Total Owing
2020	A - $130,616 R - $78,329	$118	$83	$83 x 5 months = $415
2021	A - $126,267 R - $81,262	$17	$12	$12 x 12 months = $144
2022	A - $205,857 R - $93,089	$993	$688	$688 x 12 months = $8,256
2023	A - $392,054 R - $92,920	$5,120	$3,086	$3,086 x 12 months = $37,032

[356] The applicant’s retroactive net spousal support obligation to the respondent, after tax, from August 1, 2020 up to and including December 31, 2023, is $45,847.

[357] Given the substantial sums of money owed to him by the respondent for post-separation adjustments for the RBC Visa and LOC, it is appropriate to apply those amounts to the spousal support arrears.

[358] Therefore, the applicant owes to the respondent retroactive spousal support fixed in the amount of $4,824.11 ($45,847 – $23,111.80 – $17,911.09) for the period of August 1, 2020 to and including December 31, 2023.

Ongoing Spousal Support

[359] The 2023 income figures will carry forward for ongoing support. The parties are required to exchange income disclosure going forward.

[360] Commencing January 1, 2024 and payable on the first day of each mother thereafter, the applicant shall pay to the respondent spousal support in the monthly amount of $5,120. This amount will be taxable income for the respondent and tax deductible for the applicant.

Conclusion and Orders

[361] A final order shall issue as follows:

1. A divorce order shall issue.

2. The parties shall share the Christmas Eve through Boxing Day holiday period each year, as follows:

a) In even-numbered years, the children shall be with the Respondent, Bethany Laura Young, from 4:00 p.m. on Christmas Eve until 3:00 p.m. on Christmas Day, and with the Applicant, Wessam (Sam) Said Baroudi, from 3:00 p.m. on Christmas Day until 8:00 p.m. on Boxing Day;

b) In odd-numbered years, the children shall be with the Applicant, Wessam (Sam) Said Baroudi, from 4:00 p.m. on Christmas Eve until 3:00 p.m. on Christmas Day, and with the Respondent, Bethany Laura Young, from 3:00 p.m. on Christmas Day until 8:00 p.m. on Boxing Day;

c) Parenting time for the reminder of the Christmas/New Year’s school break shall be in accordance with the regular parenting schedule set out in Sah J.’s Partial Final Order dated April 8, 2024.

3. Pursuant to ss. 15.1(1) and (3) of the Divorce Act, the Applicant, Wessam (Sam) Said Baroudi, shall pay to the Respondent, Bethany Laura Young, s. 7 expense arrears in the fixed sum of $7,384.20 for the period of March 31, 2019 up to and including December 31, 2023.

4. Pursuant to s. 7 of the Federal Child Support Guidelines, commencing January 1, 2024, the parties shall contribute to s. 7 expenses on the basis that the Applicant, Wessam (Sam) Said Baroudi, shall contribute 81% of the expenses and the Respondent, Bethany Laura Young, shall contribute 19%, provided the Respondent obtains the Applicant’s consent to the expenses in advance of incurring same.

5. Pursuant to ss. 15.1(1) and (3) of the Divorce Act, the Applicant, Wessam (Sam) Said Baroudi, shall pay to the Respondent, Bethany Laura Young, arrears of Table child support in the amount $9,745.80 for the period of August 1, 2020 to and including December 31, 2023.

6. Pursuant to s. 15.1(1) of the Divorce Act and s. 9 of the Federal Child Support Guidelines, commencing January 1, 2024 and on the first day of each following month, the Applicant, Wessam (Sam) Said Baroudi, shall pay to the Respondent, Bethany Laura Young, child support for the children, namely Rhys Sayeed Baroudi, born December 7, 2008, and Emerson Sam Baroudi, born November 27, 2010, in the sum of $3,597, based on his imputed income of $392,054 and the Respondent’s income of 92,920.

7. Pursuant to ss. 15.2(1) and (3) of the Divorce Act, the Applicant, Wessam (Sam) Said Baroudi, shall pay the Respondent, Bethany Laura Young, spousal support arrears fixed in the sum of $4,824.11, for the period of August 1, 2020 up to and including December 31, 2023.

8. Pursuant to ss. 15.2(1) and (3) of the Divorce Act, commencing January 1, 2024 and payable each month thereafter pending variation or termination, the Applicant, Wessam (Sam) Said Baroudi, shall pay to the Respondent, Bethany Laura Young, spousal support in the monthly amount of $5,120. This amount shall be taxable income for the Respondent and tax deductible for the Applicant.

9. The parties may apply for a review of spousal support in March 2027, at which time the Respondent’s continued entitlement to support will be determined. Upon review, the court will consider evidence about whether the factors that gave rise to the Respondent’s entitlement continue to exist or have diminished.

10. Pursuant to s. 21(1) and s. 25(1) of the Federal Child Support Guidelines, the parties shall exchange full and complete copies of their Income Tax Return with all schedules and attachments filed with Canada Revenue Agency by May 15^th each year. In addition, both shall provide to the other full and complete copies of any Notices of Assessment and Notices of Reassessment received from Canada Revenue Agency forthwith upon receipt.

11. Beginning on May 15, 2025 and on every May 15^th thereafter, for as long as child support is payable for the children, the parties shall provide each other with up-to-date income disclosure as required by ss. 25(1) and (3) of the Federal Child Support Guidelines.

12. Pursuant to the Family Law Act, the Applicant shall pay to the Respondent an equalization payment of $11,942.32, plus pre-judgement interest from March 2019 to the date of this order.

13. The amount of $75,000, plus any accrued interest, from the sale of the matrimonial home currently held in trust shall be shared equally, after all sums owed to the Respondent as set to in paras. 3, 5, 7, and 12 above are paid to her from the Applicant’s one-half share.

14. Unless this order is withdrawn from the Director’s office, 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.

15. This order bears post-judgment interest at the rate of ___% 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.

Costs

[362] The parties are encouraged to settle costs and bring an end to this litigation.

[363] If they are unable to do so, the Respondent shall serve and file written submissions, typed and double-spaced, of no more than four pages, excluding offers to settle and a cost outline, on or before September 27, 2024.

[364] The Applicant shall have up to October 18, 2024 to serve and file his response to the Respondent’s costs submissions. His submissions shall not exceed four pages, typed and double-spaced, excluding offers to settle and a cost outline.

[365] The Respondent’s reply shall not exceed one page, typed and double-spaced, to be submitted on or before October 25, 2024.

[366] If no submissions are received in accordance with the timelines set out above, it will be presumed that costs have been settled or one party chose not to file submissions.

[367] The parties have the option to file cost submissions through the JSO (portal) or to london.courthouse@ontario.ca.

“Justice Kiran Sah”

The Honourable Justice Kiran Sah

Released: September 11, 2024

COURT FILE NO.: FC1194/19

DATE: September 11, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Wessam (Sam) Said Baroudi Applicant

• and -

Bethany Laura Young Respondent

REASONS FOR DECISION

SAH J.

Released: September 11, 2024

[^1]: Exhibit 62, based on Scenario #2, undisputed by the parties. [^2]: Exhibit 11. [^3]: Exhibit 13. [^4]: Exhibit 15. [^5]: Exhibit 65. [^6]: Exhibit 67. [^7]: Exhibit 69. [^8]: Exhibit 71. [^9]: Exhibit 57. [^10]: Exhibit 47. [^11]: According to his draft order, with no corresponding calculation. [^12]: Exhibit 59. [^13]: Exhibit 22. [^14]: Per the respondent’s draft order. [^15]: Exhibit 84. [^16]: Exhibit 60. [^17]: Exhibit 57. [^18]: Exhibits 47 and 23. [^19]: Based on parties’ closing submissions. [^20]: Exhibit 17. [^21]: Exhibit 63.