Reasons for Judgment

Overview

The parties married on October 30, 2003 and separated on December 25, 2021 following an 18-year marriage. They have three children of the marriage: A. (born July 14, 2002), B. (born December 26, 2008), and O. (born May 25, 2010).

The key issues for this trial relate to equalization and post-separation adjustments. In addition, the applicant claims child support and section 7 expenses, and the respondent claims spousal support. The parties were the only witnesses at trial.

Equalization of Net Family Property

Upon marriage breakdown, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them: ss. 5(1) of the Family Law Act, RSO 1990, c F.3 (the “FLA”). This is colloquially known as an “equalization payment.”

An equalization payment recognizes that childcare, household, and financial management are joint responsibilities of spouses and inherent in the marital relationship is equal contribution, whether financial or otherwise, by the spouses in assuming these responsibilities that entitles each to the equalization of net family property, subject to equitable considerations under ss. 5(6) of the FLA: ss. 5(7) of the FLA; Alexander v. Genseberger, 2023 ONSC 904, para 44. The purpose of the equalization provisions is to address the unjust enrichment that would otherwise arise upon marriage breakdown: Martin v. Sansome, 2014 ONCA 14, para 63.

The equitable considerations for varying an equalization payment are set out in ss. 5(6) of the FLA:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. [Emphasis added]

In the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the FLA equalization provisions: McNamee v. McNamee, 2011 ONCA 533, para 66. Subsection 5(6) of the FLA sets a “high threshold of unconscionability” that must be established for a court to depart from the presumptive equalization of net family property as the scheme is intended “not to alleviate every situation that may be viewed as in some ways unfair or inequitable” but to promote predictability and thereby discourage litigation: Ward v. Ward, 2012 ONCA 462, para 25; Madi v. King, 2023 ONCA 443, para 19.

The term “net family property” means the value of all property, except for property that is excluded by ss. 4(2) of the FLA, that a spouse owns on the valuation date, after deducting: a) their debts and other liabilities on that date, and b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities other than those related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of marriage: ss. 4(1) of the FLA.

The parties have exchanged net family property (“NFP”) statements. The applicant claims an equalization payment of $120,427.06. The respondent claims to owe an equalization payment of $60,415.86.

The applicant’s NFP statement assigns 50% of the value of the jointly-owned matrimonial home to each party on an appraised value of $820,000.00 as of April 13, 2023. The respondent’s NFP statement lists no value to the matrimonial home, but he similarly accepts that 50% of its value should be assigned to each party on an appraised value of $850,000.00 as of April 25, 2023. Having considered both appraisals, I find that it is just and appropriate to value the matrimonial home in the amount of $835,000.00 by applying the mid-point between both appraisals.

The applicant lists $2,000.00 in household goods and furniture on the valuation date in her NFP statement. As she arrived at this figure by performing online searches of comparable used household items, I accept that she has adequately established this amount. The respondent listed no household goods or items in his NFP statement.

Based on online searches of comparable vehicles, the applicant values her 2016 Toyota RAV at $9,000.00 on the valuation date and agrees with the respondent’s $15,000.00 value for his 2017 Toyota Highlander. The respondent asserts that the RAV was of comparable value to the Highlander but gave no evidence for this position. I find that the RAV and the Highlander should be valued at $9,000.00 and $15,000.00, respectively.

The applicant claims that her bank accounts amounted to $2,279.21 on the valuation date. However, her bank account records show that her actual account holdings at separation amounted to $3,842.37 based on: a) $2,601.32 held in an RBC daily banking account on December 24, 2021, b) $456.35 held in an RBC TFSA on December 24, 2021, and c) $784.70 in a TD chequing account on December 22, 2021. Accordingly, I find that the applicant’s bank accounts should be valued in the amount of $3,842.37 for equalization purposes.

The applicant accepts the amounts in the respondent’s NFP statement for his Tangerine, Simplii, Scotia, and iA bank accounts totalling $24,542.93. In addition, she seeks to add a further $180,660.00 to his overall bank account balance to account for certain downpayments that he made on two pre-build investment condominiums located in Welland and Brantford, respectively, by using a President’s Choice (“PC”) account that he did not disclose despite requests for information.

To ensure a fair equalization, I find that it would be just and appropriate to add $180,660.00 to the respondent’s assets as of the valuation date. As set out in a summary of payments, he admits making a total of $119,080.00 in downpayments for the condominiums prior to separation, and a further $61,580.00 in downpayments for the properties after separation. He claims that the downpayment funds came from undisclosed sale proceeds of land that he had owned in the Town of Sagamu, Nigeria, and from undisclosed RSP’s.

The applicant claims that the respondent owned three properties in Nigeria consisting of vacant land in the Town of Badagry, a 3-bedroom flat in the Town of Ojokoro and a 4-bedroom home in the Town of Sagamu. The respondent testified that he visited Nigeria in 2002 and gave funds to the applicant (then working at a Nigerian law firm) to buy properties in Nigeria on his behalf. Although she was to buy these properties in Nigeria for him, he claims that she registered herself on title to the properties without contributing any purchase funds and took over managing the properties when he returned to Canada. After visiting Nigeria in 2014, he apparently learned that she had mismanaged the properties. This led to a significant conflict between the parties. He also claims that he and/or the applicant sold the Badagry property during the marriage and used the proceeds to pay for their living expenses. The applicant produced a deed showing that both parties jointly acquired the Badagry property on June 13, 2006. She also produced a deed by which the respondent assigned the Ojokoro property to others on February 3, 2018 (before the date of separation). The respondent did not disclose any details about the Nigerian properties, or how much they were sold for, even after the applicant requested this information.

During his evidence in chief, the respondent claimed that he obtained the downpayment funds for the investment condominiums from the sale of the Sagamu property (that purportedly generated about $80,000.00 CDN in proceeds) and some RSP funds. Later in cross-examination, he claimed that the downpayment funds were drawn from an undisclosed line of credit and/or a credit card account.

The respondent’s financial statement sworn November 10, 2023 states that he paid only $61,580.00 in deposits for both pre-build investments. However, his unsworn summary of payments indicates that he actually paid a total of $180,660.00 in downpayments for both pre-build condominiums, as noted earlier.

The respondent did not produce valuations for the condominiums and claims that they cannot be appraised as they are under construction. He proposed in his NFP statement that both properties be collectively valued at $119,080.00 (to reflect the pre-separation downpayments). The applicant did not obtain valuations for the properties, but produced records to show that the respondent entered into an agreement on February 13, 2021 to buy a pre-build condominium in Welland for $575,000.00, before signing a further agreement on June 1, 2021 to purchase a second pre-build condominium in Brantford for $629,400.00.

The respondent claims to have a high debt load with no equity in either of the investment condominiums. He stated in cross-examination that he will be unable to finance the payments that will be due once the condominiums are built and ready for occupation due to his limited means as he no longer has a second job and plans to retire due to health issues. He testified that he will be entitled to a return of his downpayments if he cannot secure financing to complete the transactions. He did not produce any records to meaningfully corroborate his evidence on this.

I am troubled by the respondent’s inconsistent evidence and lack of disclosure. He has been secretive about the Nigerian properties and the investment properties in Ontario, and was fairly vague and evasive when testifying about these properties. I find that his conduct was deliberately intended to frustrate the applicant’s equalization claim by causing uncertainty and confusion. His conduct left the applicant unable to meaningfully address these aspects of her equalization claim.

Given the very limited financial information that the respondent has disclosed, he has clearly failed in his obligation to make full financial disclosure: Michel v. Graydon, 2020 SCC 24, para 33; Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855, para 21.

In the circumstances, the evidentiary record for the court to assess the net family property of the respondent is less than ideal. Without adequate information, there is no basis on which to order an equalization payment: Cohen v. Cohen, 2024 ONCA 114, para 21. During submissions, the applicant proposed having the $180,660.00 in downpayments on the investment condominiums treated as cash (on deposit in the PC account) that existed at separation without attributing any value to the condominiums themselves. By doing so, the applicant submitted that the court could best approximate the respondent’s assets at the valuation date to allow for a just and reasonable equalization analysis (despite the lack of financial disclosure and inconsistent evidence at trial). The applicant advised that she would be content to proceed with an equalization analysis in this fashion, despite the conflicting and missing financial information in this litigation.

It is quite obvious that the downpayment funds to pay for the investment condominiums initially were not fully disclosed by the respondent, who I accept is well aware of this fact. In his NFP statement dated February 1, 2024, he indicated that one condominium was worth $47,205.00 after a $14,375.00 deposit was paid, and that the other condominium was worth $71,875.00 after a $47,205.00 deposit was paid. This purported disclosure was incomplete and misleading. We now know from his testimony at trial, as set out in his payment statement, that funds came from Nigeria to Canada and were used to make a series of downpayments totalling $180,660.00 for both of the condominiums that he never disclosed at all in his NFP or financial statements.

The respondent later claimed that the funds came from Tangerine and Scotia lines of credit, but I do not accept this evidence as his NFP statement dated February 1, 2024 lists the Tangerine line of credit as having a “nil” balance and the Scotia line of credit as “n/a” (not available or not in existence). The respondent claims that he used a $5,000.00 draft drawn on a Scotiabank account in May 2021 to make a payment for one of the condominiums, but the draft lacks any meaningful information to account for the funds. Moreover, the respondent signed agreements to purchase the condominiums on February 13, 2021 and June 1, 2021, respectively (before the parties separated on December 25, 2021) so any associated debts on the respondent’s lines of credit should appear on his NFP statement but none are listed and none were disclosed.

Taking this all into account, I accept that the respondent had sufficient cash on deposit in a PC bank account that he used to pay a total of $180,660.00 in downpayments for the investment condominiums that should have been listed on his NFP statement but were omitted. Given the significance of these payments, I find that the respondent intentionally chose to conceal these funds to deliberately frustrate the applicant’s equalization claim in this proceeding and disadvantage her. This highly improper conduct by the respondent was beyond unfair and was quite unconscionable: Ward at para 25; Madi at para 19.

Given the rather unique circumstances of this case, I am persuaded to grant the applicant’s request and treat the $180,660.00 in condominium downpayments as “cash” while giving no value to the condominiums as of the valuation date. Despite the respondent’s conflicting evidence and obvious non-disclosure, I am satisfied that this approach allows for a sufficiently adequate factual basis to assess the net family property of the respondent on the evidence led at trial and arrive at a just and fair equalization calculation: Cohen at paras 22 and 24. I also find that this approach would give the applicant a just and appropriate remedy for the respondent’s inconsistent evidence and deliberate non-compliance with his disclosure obligations. Disclosure is the most basic and ongoing obligation in family law: Roberts at para 11. In my view, dealing with the equalization analysis in this fashion would allow for a fair and effective remedy for this non-compliance: Mullin v. Sherlock, 2018 ONCA 1063, para 41; Roberts v. Roberts, 2015 ONCA 45, para 12.

I find that the family law value of the applicant’s OMERS pension as of the valuation date is $65,328.46 based on the FSRA statement of value dated January 25, 2024. For equalization purposes, I accept the applicant’s submission that the parties should equally share this pension value (with a $32,664.23 distribution per party). The applicant produced a pay stub for the respondent’s employment at Walmart showing that he contributes to a pension plan, and earns stock options in the company, for which he made no disclosure nor produced any valuations despite requests for this information. I find that the respondent’s non-disclosure of his pension and stock options was deliberately intended to frustrate the applicant’s equalization claims in this proceeding and, therefore, was unconscionable. In the circumstances, I am satisfied that it would be just and appropriate to remedy his non-disclosure of his pension by disallowing his equalization claim in relation to the applicant’s pension. The respondent should not be allowed to evade his disclosure obligations and litigate with impunity to the disadvantage of the applicant and the detriment of the administration of justice. In my view, disallowing this aspect of the respondent’s equalization claim is a fair and effective remedy for his non-disclosure: Mullin at para 41; Roberts at para 12.

Both parties agree that the respondent holds $11,356.64 in UPS shares.

During his testimony at trial, the respondent claimed that the applicant owed him $1,500.00 for an unspecified loan that he gave to her during the marriage. He did not include this loan in his NFP statement, and gave only limited details for the loan that is undocumented. The applicant denies owing any such loan. In the circumstances, I find that the respondent has not established this claim and I decline to account for this alleged loan in the equalization analysis.

The applicant is claiming $22,574.93 in student loans as part of her debts and liabilities for equalization. She filed a student loan statement indicating that this principal amount was owing as of September 1, 2021 with $217.08 in monthly payments due on September 30, 2021 and on each month’s end thereafter. Based on this, I shall adjust the applicant’s student loan claim to $21,923.69 (i.e., $22,574.93 less [$217.08 x 3 months]) to reflect the debt balance owing as of the valuation date. I find that the applicant’s other credit card debts as of the valuation date are sufficiently established. The applicant accepts the respondent’s debts on valuation date as set out in his latest NFP statement.

The applicant is claiming a car loan of $15,000.00 as a debt on the valuation date. However, her car loan records show a car loan balance of $3,801.16 as of December 2023 with a bi-weekly payment of $178.33. Applying a monthly payment of $356.66 (i.e., $178.33 x 2) over a 24-month period (retroactively to January 1, 2022), I find that the applicant’s car loan at the time of separation amounted to $12,361.00 (i.e., $356.66 x 24 months + $3,801.16).

Summary of Equalization Analysis:

	Applicant	Respondent
Matrimonial home	$417,500.00	$417,500.00
Household goods	$2,000.00
Vehicle	$9,000.00	$15,000.00
Bank Account and Savings	$3,842.37	$24,542.83
Downpayment Funds		$180,660.00
UPS		$11,356.64
Total Assets	$432,342.37	$649,059.47
Student Loan	$21,923.69
Debts	$5,674.11	$5,932.12
Car financing	$12,361.00
First time home buyer debt		$17,800.00
Total Debts	$39,958.80	$23,732.12
Net Family Property	$392,383.57	$625,327.35

Equalization Payment: $116,471.89

Accordingly, I find that the respondent should pay the applicant an equalization payment in the amount of $116,471.89.

Post-Separation Adjustments

There are post-separation adjustments to be accounted for since the date of separation.

From January 1, 2022, the respondent stopped paying the mortgage and carrying costs for the matrimonial home, leaving the applicant paying all these costs without any contributions from him. The mortgage payments were $2,979.86 per month (based on bi-weekly payments of $1,489.93). Property taxes came to $4,751.29 per year. The applicant filed a 2022 property insurance invoice for $1,277.64 per year and testified that the insurer later lowered the premiums to about $1,000.00 per year. I accept that the gas bill for the matrimonial home was $188.63 per month, the water heater rental was $40.63 per month, the water bill was $60.23 per month (based on a $180.69 invoice sent every 3 months), the hydro bill was $101.00 per month, and the internet bill was $92.54 per month.

As a result, I find that the respondent should reimburse the applicant for 50% of these payments made from January 1, 2022 to February 28, 2025 as follows:

• mortgage: $2,979.86 per month x 26 months ÷ 2 = $38,738.18
• property taxes: $4,751.29 per year ÷ 12 x 26 months ÷ 2 = $5,147.23
• property insurance: [$1,277.64 + ($1,000.00 ÷ 12 x 14 months)] ÷ 2 = $1,222.15
• gas: $188.63 per month x 26 months ÷ 2 = $2,452.19
• water heater: $40.63 per month x 26 months ÷ 2 = $528.19
• water: $60.23 per month x 26 months ÷ 2 = $782.99
• hydro: $101.00 per month x 26 months ÷ 2 = $1,313.00
• internet: $92.54 per month x 26 months ÷ 2 = $1,203.02

Based on all of this, I find that the respondent should pay the applicant post-separation adjustments totalling $51,386.95.

Child Support

I find that the respondent owes child support.

The purpose and promise of child support is to protect the financial entitlements due to a child by their parents: Michel v. Graydon, 2020 SCC 24, para 38. Child support is the right of the child: D.B.S. v. S.R.G., 2006 SCC 37, para 38. The right to child support survives the marriage breakdown of the parents of the child and should, as much as possible, give the child the same standard of living they had when the parents were together: D.B.S. at para 38.

The court’s jurisdiction to order child support is found at ss. 5.1(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp). A child over the age of majority is entitled to child support if found to remain under the charge of a parent and unable to withdraw from the parent’s charge or to obtain the necessaries of life: ss.2(1) of the Divorce Act. The amount of a child support order for children under the age of majority is set out in applicable tables based on the number of children to whom the order relates and the income of the spouse against whom the order is made: ss. 3(1) of the Federal Child Support Guidelines, SOR/97-175. A spouse’s income for child support purposes is determined by using the sources of income under the “Total income” heading in the CRA T1 General form, as adjusted by Schedule III: s. 16 of the Guidelines. Should the court find that considering a spouse’s annual income under s.16 would not be the fairest determination of that income, it may consider the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income, or receipt of a non-recurring amount over those years: ss. 17(1) of the Guidelines. An adult child who is pursuing educational studies, taking a brief hiatus from those studies, or in a modest transition period after completing an education program may be a dependent child who is entitled to child support: Pennington v. Pennington, 2021 ONSC 7371, para 24.

The parties separated on December 25, 2021 after the respondent confronted the eldest child, A., who was home from university for the holidays. This led to an altercation between the parties. After police were called, the respondent left the matrimonial home where the applicant and the children continue to reside. The applicant is claiming child support as of January 1, 2022 for the three children of the marriage.

At the time of separation, A. was living away from home while attending university on a full-time basis. Starting in December 2021, A. went for counselling services through the university for health issues (anxiety, low mood, and a history of trauma) that regrettably impacted her studies, relationships and daily activities. Subsequently, by correspondence dated May 24, 2023, the university placed A. on suspension from further studies due to academic performance. The suspension is for a minimum period of one academic calendar year (from the end of the 2022 Fall/Winter semester). To date, A. has not returned to university. In the circumstances, I find that child support for A. should terminate as of June 30, 2023, subject to potentially resuming in the future if she resumes her post-secondary education.

In determining child support, I find that it is fair and reasonable to apply $114,674.00 in income to the respondent for 2022 based on his notice of assessment that year.

Starting January 1, 2023, I find that the respondent’s income for child support should be reduced to reflect only his employment income at Walmart. During 2022, he worked at a Walmart distribution centre and at a Legacy logistics facility. He testified that he previously worked the second job at Legacy as a forklift operator from 2016 until August or September 2022, but claims to no longer be able to work two jobs due to the onset of high blood pressure and diabetes. He is currently 64 years of age. He claims to now work only at Walmart where he earns $25.45 per hour. He did not produce a record of employment for his Legacy job nor lead medical evidence of any health-related issues, as the applicant has noted. That said, and after taking everything into account, I find that the respondent’s income for child support purposes should be $47,718.75 per year to reflect his employment income at Walmart (i.e., $25.45 per hour x 7.5 hours daily x 5 days per week x 50 weeks per year) as of January 1, 2023, and I decline to impute any further income in determining his child support obligations. Applying both annual incomes, table child support for 2022 on $114,674.00 of annual income comes to $2,150.51 per month for three children and $1,651.36 per month for two children, and table child support thereafter on $47,718.75 of annual income is $934.38 per month for three children and $720.36 per month for two children.

Both parties accept that the respondent has paid temporary without prejudice child support of $800.00 per month from November 2022 to June 2023, and then in the amount of $656.00 per month until now. Given his earlier child support payments, and after appropriate offsets for these payments, I find that the respondent should pay a further $18,299.60 (i.e., $16,206.12 + $1,192.44 + $772.32 + $128.72) in child support for the period from January 1, 2022 to February 28, 2025 based on the following calculations:

• January 1, 2022 to December 31, 2022 = ($2,150.51 x 12) – ($800 x 12) = $16,206.12
• January 1, 2023 to June 30, 2023 = [($934.38 x 6) – ($800 x 6)] + [($720.36 x 6) – ($656.00 x 6)] = $1,192.44
• January 1, 2024 to December 31, 2024 = ($720.36 x 12) – ($656.00 x 12) = $772.32
• January 1, 2025 to February 28, 2025 = ($720.36 x 2) – ($656.00 x 2) = $128.72

Starting March 1, 2025, I find that the respondent should pay child support for B. and O. in the amount of $720.36 per month based on $47,718.75 of income per year until either child is no longer a dependent child of the marriage, at which point support may be adjusted.

Section 7 Expenses

For the purpose of allocating the children’s section 7 expenses, I find that it is fair and reasonable to apply $86,212.00 in annual income to the applicant based on her notice of assessment for 2023. The respondent alleges that the applicant earned undisclosed income by selling food or clothing to buyers in Nigeria, and by renting the matrimonial home through Airbnb, but he led no meaningful evidence to support these allegations that the applicant flatly denies. On balance, I find that the respondent has not established a basis for imputing further income to the applicant beyond the amount in her notice of assessment. Applying the applicant’s $86,212.00 income figure to my earlier finding that the respondent currently earns $47,718.75 in annual income, I find that the parties should share section 7 expenses in a 64:36 ratio.

Based on the evidence at trial of the children’s post-separation expenses, I accept that the applicant paid $250.00 for her son’s soccer club membership. Although she testified that she paid $500.00 each for her son and daughter to play soccer, she provided no receipts to corroborate this $1,000.00 claim that I shall decline to grant. I find that she paid $70.00 for taekwondo lessons for a child. I find that she paid $223.12 and $143.46 for school uniforms. In addition, I find that she paid a total of $671.65 in various school activity fees for the younger children. I decline to grant her claim for A.’s rent at university given the limited evidence to show the monthly rent amount and the lack of payment evidence. Similarly, I decline to grant her $200.00 claim for the cost of supervised exchanges at Headwaters Family Visit Centre due to the lack of invoices and payment evidence. Based on a total of $1,358.23 (i.e., $250.00 + $70.00 + $223.12 + $143.46 + $671.65) in section 7 expenses, I find that the respondent should pay the applicant $488.96 for his 36% share of these expenses.

Spousal Support

For the reasons that follow, I do not find that the respondent has a compensatory or non-compensatory entitlement to spousal support.

An entitlement to spousal support must be established before the court is to consider the quantum and duration of any spousal support award to be paid: Bracklow v. Bracklow, para 49. There are three discrete bases for awarding spousal support: contractual, compensatory and non-compensatory: Bracklow at para 37. A contractual basis does not arise in this case as the parties had no agreement to pay spousal support. An entitlement to spousal support may arise in this case on compensatory and non-compensatory grounds, should this be supported by the evidence.

In deciding a party’s entitlement to spousal support, the court is to consider the following objectives of spousal support, with no particular objective being paramount:

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.

ss. 15.2(6) of the Divorce Act; Moge v. Moge, [1991] 3 SCR 813 at 852.

An entitlement to spousal support is made out where any of the ss. 15.2(6) objectives are established: Bracklow at para 49.

In making an order for spousal support, the Court is to take into consideration 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 the support of either spouse.

ss. 15.2(4) of the Divorce Act.

Given that marriage is a socio-economic partnership, an order for spousal support should compensate for losses that the marriage or its breakdown caused that would not have been suffered otherwise: Bracklow at paras 41 and 49. Compensatory spousal support addresses a recipient’s economic loss or disadvantage from the roles adopted during the marriage, or situations where the recipient confers an economic benefit on the payor without adequate compensation. Common compensatory markers include being home with children full-time, having primary care of children after separation, and moving forward the payor spouse’s career. Even if compensatory loss is not established, a marital breakup may cause economic hardship in a larger non-compensatory sense to implicate non-compensatory support: Bracklow at para 41.

This “mutual obligation” view of marriage implicates policy values:

First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly. When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital “break”. Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls. [Emphasis added]

Bracklow at para 31.

The court must look at all relevant factors in light of the objectives of spousal support and arrive at a finding that equitably alleviates the adverse consequences of the breakdown of the parties’ marriage: Bracklow at para 36.

I am not persuaded that the respondent has established a compensatory basis for his spousal support claim. He claims that he took time off work and changed his schedule to care for the children (by picking them up from school and preparing food for them) while the applicant attended nursing school and later worked as a nurse. The applicant claims that the respondent did not cook or prepare food for the children, let alone care for them, as it was actually the maternal grandparents and aunts who took turns looking after the children to support her. Early in the relationship before marriage, the applicant worked as a lawyer in Nigeria while the maternal family supported her and the parties’ eldest daughter. During the marriage, the applicant had the parties’ second child about nine months after joining the respondent in Canada. Finding herself unable to obtain legal work in Canada, she chose to re-start her career by becoming a nurse. While she attended nursing school in Canada, the parties’ two younger children were sent to live for two years in Nigeria where she visited them during her summer breaks. As a nursing student, she also worked a part-time job to support the family and contributed her OSAP and child tax benefit funds to help pay for the family’s living expenses. In addition, she gave evidence that the respondent did not reside with her and the children from September 2014 to June 2015 after he was charged with assault and was subject to no-contact release conditions.

Taking this all into account, I do not find that the respondent has shown that he was disadvantaged, economically or professionally, by marrying the applicant who was the children’s primary caregiver throughout the parties’ relationship. On balance, I do not find that the applicant realized any career advantages or financial benefits from the marriage, including the respondent’s efforts to care for the children, over the course of the relationship. Over their 18-year marriage, I find that the parties largely took on more-traditional family roles by which the respondent father primarily worked outside of the home as a labourer, albeit while performing some child care duties, while the applicant mother handled much if not most of the childcare and household duties with support from members of the maternal family as she pursued her career in nursing.

In my view, neither party bettered themselves more than the other during the course of the marriage. Both worked hard, were industrious, and achieved success over time.

I am not satisfied that the respondent has established a non-compensatory basis for his spousal support claim. Although the respondent is no longer working a second job, I am not persuaded that he is unable to achieve post-marital self-sufficiency or otherwise support himself on his current full-time employment income approaching $47,718.75 per year. I am particularly troubled by his non-disclosure and apparent decision to not produce any meaningful information on his finances despite the applicant’s multiple requests for information and disclosure. His non-disclosure is conspicuous given his decision to purchase two pre-build investment condominiums without disclosing any meaningful particulars of these purchases, without clearly describing how he afforded to make downpayments on the properties, and without explaining how he plans to finance these investment properties in the future. His non-disclosure of the bank account that he used to make the downpayments on the pre-build investment properties is telling and shows that he deliberately tried to conceal the true nature of his financial affairs, including his income, assets, and available credit, in a calculated effort to hide or shield his finances to frustrate the applicant’s financial claims in this proceeding. In any event, the respondent has testified that he will be able to recover the $180,660.00 in downpayments that he made on the investment properties as he will likely be unable to obtain financing to close these transactions. Based on his own evidence, it follows that he will soon be accessing $180,660.00 in cash. In addition, I accept that the investment properties may well generate not insubstantial rental income should he manage to secure financing to close his purchase transactions for the properties.

The respondent testified about his impending plans to retire from the workforce. But given his troubling lack of disclosure in this proceeding, I do not accept that he has established a needs-based entitlement to spousal support on the limited evidentiary record currently before the court.

Accordingly, I find that the respondent’s claim for spousal support should be dismissed.

Outcome

Based on all of the foregoing, I make the following orders:

a. the respondent shall pay the applicant an equalization payment of $116,471.89;

b. the respondent shall pay the applicant $51,386.95 in post-separation adjustments;

c. the respondent shall pay the applicant $18,299.60 as further child support for the period from January 1, 2022 to February 28, 2025;

d. starting March 1, 2025, the respondent shall pay child support for the children B. (born December 26, 2008) and O. (born May 25, 2010) in the amount of $720.36 per month based on $47,718.75 of annual income until either child is no longer a dependent child of the marriage;

e. the respondent shall pay the applicant $488.96 in section 7 expenses; and

f. the balance of the claims in this matter are dismissed, but for costs.

If the parties are unable to resolve the issue of costs, the applicant may deliver written costs submissions of up to 5 pages (excluding any costs outline or offer(s) to settle) within 15 days, and the respondent may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.

Date: February 24, 2025

M.T. Doi

Endnotes

[1] On January 25, 2024, the applicant appealed the order of Miller J. dated January 15, 2024 that granted a motion by the respondent for the sale of the jointly owned matrimonial home on Galbraith Street in Shelburne. Miller J.’s order for partition and sale followed a consent order made by McSweeney J. on April 24, 2023 for the parties to appraise the home and negotiate a buyout of the home by May 19, 2023, failing which the consent order directed the home to be listed for sale by October 30, 2023. Buyout negotiations apparently broke down over a disagreement about the equalization amount owed by the respondent. The applicant has asserted that the respondent did not negotiate a buyout in good faith after she secured financing. The respondent has claimed that the applicant’s buyout offer was not viable and that the applicant resiled from her consent underlying the April 24, 2023 consent order. On September 9, 2024, the Court of Appeal adjourned the applicant’s appeal until after the trial reasons under reserve were released as the equalization and other claims raised at trial made it premature to have the appeal heard at that time: Ogunmekan v. Ogunmekan, 2024 ONCA 673, paras 2-4.

[2] The term “valuation date” under ss. 4(1) of the FLA is as follows:
“valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
2. The date a divorce is granted.
3. The date the marriage is declared a nullity.
4. The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted.
5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

[3] Pursuant to ss. 4(2) (Excluded property) of the FLA, excluded property includes the following:
(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.
5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
7. Unadjusted pensionable earnings under the Canada Pension Plan.

[4] The applicant’s NFP statement is dated May 9, 2024 (Case Centre A835-A839). The respondent’s NFP statement is dated February 1, 2024 (Case Centre B-448-452).

[5] Case Centre A854-883.

[6] Case Centre A884-A907.

[7] Case Centre A601, A561, and A576.

[8] The applicant produced several cheques totalling $89,410.00 that the respondent drew on the President’s Choice account from July 2021 to January 2023 to pay for some of these downpayments. These cheques amounted to $26,470.00 in July 2021, $15,735.00 in November 2021, $15,735.00 in June 2022, $15,735.00 in October 2022, and $15,735.00 in January 2023: Case Centre A796 to A800. She also produced a $5,000.00 cheque that the respondent drew on a Scotiabank account in May 2021: Case Centre A795.

[9] Case Centre A801-802.

[10] Case Centre A804.

[11] Case Centre A380.

[12] Case Centre A801-802.

[13] Case Centre A780-793 and A793-794.

[14] The agreement of purchase and sale for the condominium in Welland gave a May 1, 2024 occupancy date. The respondent did not explain what if any financing arrangement(s) he made to close the purchase transaction of the Welland condominium.

[15] Case Centre A607.

[16] Case Centre A694.

[17] Case Centre A828 and A687.

[18] Case Centre A687.

[19] The applicant accepts the respondent’s first-time home buyer debt of $17,800.00 (Case Centre A838).

[20] For his part, the respondent claims that he tried to make the mortgage and property insurance payments for the matrimonial home in January 2022, but that the applicant changed the bank account used to directly pay for these costs. He claims to have asked for the new bank account number but that she did not respond to his inquiry.

[21] Case Centre A623.

[22] Case Centre A628.

[23] Case Centre A625.

[24] Case Centre A633, A635, A63, A639, and 643.

[25] During the applicant’s examination in chief, the respondent objected to her initial evidence regarding her claim for post-separation adjustments by asserting that she had not led any documents or records to corroborate her evidence. Subsequently, however, the applicant gave evidence about her claim for post-separation adjustments by referring to specific invoices that clearly lend support to the various amounts that she is claiming in post-separation adjustments. In the circumstances, I have found that the respondent’s objection should be overruled.

[26] Case Centre A730.

[27] See the respondent’s affidavit sworn June 20, 2024 at para 3, and the applicant’s affidavit sworn July 5, 2024 (Case Centre A909).

[28] Case Centre A512.

[29] The applicant claims to have purchased bulk food items or groceries for the family on occasion: Case Centre A565 and 570.

[30] Case Centre A651. Although the applicant claims to have paid a total of $750.00 in soccer registration costs, she produced only one receipt for $250.00 that was paid to the Shelburne Soccer Club.

[31] Case Centre A653-654. The applicant claims to have paid a total of $140.00 for taekwondo but produced only one $70.00 invoice from Shelburne Taekwondo.

[32] Case Centre A657 and 658.

[33] Case Centre A660 ($65.00), 662 ($26.55), 665 ($14.00), 666 ($76.15), 669 ($70.00), 672 ($45.00), 677 ($87.45), 678 ($227.15) and 679 ($60.35) = $671.65.

[34] There was some evidence at trial that A’s university tuition was paid with funds from an RESP account that both parties had contributed to: Case Centre A572.

[35] I may be spoken to if there are any mathematical or transpositional issues in the reasons for judgment.