COURT FILE NO.: FS-17-00000105 (Goderich) DATE: 20250401 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sherena Marie Leyen Applicant – and – Tyler Leyen Respondent Mary E. Cull, for the Applicant Doug LaFramboise, for the Respondent HEARD: April 8, 9, 10, 11, 12, May 2, and June 19, 2024 reasons for judgment carroccia j.: INTRODUCTION [ 1 ] The applicant, Sherena Marie Leyen (who now goes by her birth name Sherena Marie McGlynn), and will be referred to herein as Sherena, or the applicant and the respondent, Tyler Leyen, who will be referred to as Tyler or the respondent, were married on August 17, 2013, and separated on July 26, 2017. [ 2 ] The applicant is 35 years old, and the respondent is 33 years old. They are the parents of two children, Tucker Michael Leyen who was born on May 17, 2015, and Emery Ilene Leyen who was born on February 4, 2018, after the parties separated. [ 3 ] This matter had been scheduled for trial in September 2023 and again in January 2024 and was not reached during either of those sittings. The trial was conducted over seven days between April and June 2024. The applicant commenced these proceedings in October 2017, so when the trial was conducted, this matter was almost seven years old. [ 4 ] The only outstanding issues are financial issues. On October 26, 2022, Grace J. made a Final Order, incorporating the terms of Minutes of Settlement to resolve the issues relating to decision-making authority and parenting time with the children. The issues to be determined at trial are: (i) what is the proper equalization of net family property? (ii) is there a retroactive obligation for child support and/or s. 7 expenses? (iii) what is the appropriate amount of child support payable by the respondent? and (iv) is there any ongoing and retroactive obligation for spousal support? THE EVIDENCE AT TRIAL [ 5 ] The court heard evidence from the applicant, the respondent, Victoria Leyen who is married to Tyler’s brother, Randy Byars, a real estate appraiser, and Wilene Leyen, the respondent’s mother. [ 6 ] Sherena testified and confirmed that the parties married on August 17, 2013, and separated on July 26, 2017, when she was pregnant with their second child and their son Tucker was two years old. They did not live together prior to marriage and have not resumed cohabitation since the date of separation. After the parties separated, Sherena initially moved in with her parents. [ 7 ] The applicant testified that she left her parents’ home in the fall of 2018 and began living with her boyfriend in April 2022. She has been working at McGlynn Lumber, which is owned by her father since 2013. She continues to work there full-time as a receptionist, performing data entry and dealing with accounts payable. [ 8 ] Sherena testified that after Emery was born, she took parental leave, but also worked part-time. She and one of her friends did a child-care swap where they would look after each other’s children while they were working. She returned to work full-time in September 2018 when Tucker started school, and Emery went to a home daycare. During that time, Tucker was also involved in an after-school program. [ 9 ] Sherena testified that during Covid, particularly between March and September 2020, she worked very little. She has a Grade 12 education and was 23 years old when she married the respondent. She has no plans to change her career or go back to school. [ 10 ] Since she is the main caregiver to the children, she has to deal with the children when they are sick, or when school is cancelled because of snow days. When she takes those days off, she does not get paid. [ 11 ] The applicant’s most recent Financial Statement, dated April 4, 2024, was introduced into evidence. Her gross income for 2023 was $37,671.94. She earns an hourly rate of $19.75, she has some health and dental benefits and pays for life and accident group benefits. She has no pension benefits. [ 12 ] She testified that both of the children are involved in extracurricular activities. Emery has been in dance classes for three years and Tucker has played hockey for the last two years. Both take swimming lessons. She testified that the respondent signed the children up for skating lessons. Last hockey season, Tyler paid for Tucker’s hockey equipment. [ 13 ] Sherena testified that in the summer, she pays $200 per child per week to enroll them in day camps with the municipality. She has to pay for the week, even if the children do not attend each day. The applicant testified that the respondent has not been contributing to the costs of after-school care or summer day camps. [ 14 ] The applicant testified that the matrimonial home has always been in the respondent’s name. They lived there from the date of their marriage until they separated. [ 15 ] Sherena testified that during the marriage, she drove an Equinox, but that vehicle was destroyed in a car accident while Tyler was driving it. He was charged criminally with impaired driving at the time. Tyler then purchased a $10,000 Dodge Ram for her after separation because she had no vehicle to drive the children. She testified that she paid off the loan on the Equinox herself after separation. [ 16 ] Sherena testified that she did not know that there was a mortgage on their matrimonial home in favour of Tyler’s parents. She has never seen a mortgage statement and she did not learn of the alleged existence of a mortgage until after they separated. She has not seen any documents indicating that they owe money to Tyler’s parents, they had never made any mortgage payments, and he told her that he owned the farm property. [ 17 ] According to Sherena, there were renovations made to the family home before they married, and additional renovations including new floors being installed, updating of a bathroom, a new roof was installed and other exterior work performed around the time that Tucker was born in 2015. Her parents covered the cost of the trim and flooring. She was told at the time by Tyler that Lakeview Poultry, Tyler’s parents’ business, covered the cost of these renovations. [ 18 ] The applicant confirmed during her testimony that her income from 2014 to 2022 was as set out in the Document Brief which contained the Notices of Assessment and Income Tax Returns filed. Her line 150 income for 2014 was $27,199, for 2015 it was $20, 232 and for 2016 it was $24,329. [ 19 ] Her income for the following years according to the Income Tax Returns produced was as follows: 2017: line 150 income: $31,497.02 childcare expense deducted: $8,000 2018: line 150 income: $21,563.19 childcare expense deducted: $980 2019: line 150 income: $25,130.00 childcare expense deducted: $1,477 2020: line 150 income: $33,929. 2021: line 150 income: $35,670 childcare expense deducted: $405.13 2022: line 150 income: $33, 389 childcare expense deducted: $899.35 [ 20 ] Sherena’s 2023 gross income was $37,671.94. [ 21 ] The applicant testified that she obtained an appraisal of the farm property and paid for it, and since that time has sought to communicate with the respondent about what he thought the value of the property was so they could settle the outstanding property issues, but he has been uncooperative in that regard. The applicant served a Request to Admit on the respondent, but no reply was received. [ 22 ] Sherena testified that after a temporary order was made for the payment of child support for Tucker on November 29, 2017, she was unclear about the respondent’s financial situation. She also testified in cross-examination that she has always consulted with Tyler before registering the children for extracurricular activities. [ 23 ] The applicant testified and validated all of the documents contained in the Document Brief and the Trial Record. The applicant testified that she has never been provided with a Net Family Property Statement (NFPS) by the respondent and has not been provided with any explanation why. [ 24 ] Victoria Leyen (Victoria), who is married to Tyler’s brother Christopher, testified. She works for 1455213 Ontario Limited which carries on business as Lakeview Poultry. She is a bookkeeper and also works in the barns. That business is owned by the respondent’s parents, Wilene and Leroy Leyen. She indicated that Wilene and Leroy Leyen are the shareholders of that corporation. She and her husband also own a farm that they acquired from her in-laws. They did not pay for the farm they own, nor is there a mortgage on it. [ 25 ] According to Victoria, in 2023 she and her husband grew crops on 22 acres of Tyler’s land, and corn in his “front fields”. She indicates that the only form of payment made was the payment of land taxes paid by them for Tyler. Victoria testified that she wanted to pay Tyler rent for using the land and let him pay his own taxes, but Wilene, her mother-in-law, wanted it done this way. [ 26 ] Victoria confirmed that in 2022, the corporation used Tyler’s land. The corporation obtained the seed and planted and harvested crops on Tyler’s land. [ 27 ] She confirmed that Tyler was an employee of Lakeview Poultry until 2019, but the corporation continued to use all workable acres of Tyler’s land to plant crops. She was aware that the corporation paid Tyler’s land taxes, farm insurance, and cell phone and purchased a truck for him. He has not reimbursed the corporation for any of those expenditures. She was unaware of any arrangements between the corporation and Tyler for the repayment of any expenses. [ 28 ] Victoria confirmed that her husband Chris, Tyler and their brother Mitchell each received a settlement from their grandmother’s estate. She was aware that Tyler received approximately $450,000. [ 29 ] Victoria testified that Wilene Leyen had a stroke in 2022, and at that time she took over the responsibility of the bookkeeping for Lakeview Poultry. She indicated that the crops grown on both her farm and Tyler’s go to the corporation. [ 30 ] Victoria testified that she keeps track of what the corporation pays for on behalf of Tyler because it is unfair that the corporation pays Tyler’s bills and not hers and her husband’s. [ 31 ] The applicant retained the services of Randy Byars to undertake an appraisal of the farm property which includes the matrimonial home located at 45099 Bruce Road, R.R. #1, Clifford, Ontario. The applicant also called Randy Byars as a witness. Mr. Byars inspected the property on July 8, 2019. After a voir dire was conducted, he was qualified to offer expert opinion evidence as to the market value of real estate. [ 32 ] Mr. Byars testified that the market value of the matrimonial home plus one acre as of August 17, 2013 was $282,000. The value of the other 97 acres was $567,000. When he conducted his appraisal, Tyler Leyen was present, and Mr. Byars asked him about renovations to the home. The appraised value includes renovations conducted after 2013. The respondent did not obtain a separate valuation of the property. [ 33 ] According to Mr. Byars, the fair market value of the property as of the valuation date, July 26, 2017, was $365,000 for the house and one acre and $818,000 for the rest of the land. He testified that there are 35 workable acres of land, and about 25 acres of hardwood. [ 34 ] Mr. Byars also prepared a third report to determine the fair market value as of July 8, 2019. According to him the value of the home plus one acre as of that date would be $465,000 and the rest of the land would be $715,000. Mr. Byars testified that the value of residential properties have increased since 2019, and mixed use acreage like this property have generally increased in value. [ 35 ] Tyler Leyen testified on his own behalf. He said that he is the owner of the property where he lives, 45099 Huron Bruce Road, in Clinton, Ontario, the matrimonial home. The property was transferred from his parents to him on January 8, 2010. He was 18 years old when he got the property. [ 36 ] According to his evidence, there is a mortgage of $200,000 on the property, but he testified that he has not made any payments on the outstanding mortgage. He testified that it was expected that he would pay the mortgage, but there was no timeline set out, and no agreement in writing as to how and when the mortgage would be paid. Tyler testified that his mother was in charge of the financial “stuff”. [ 37 ] The respondent testified that the $100,000 paid for by his parents towards the purchase of the house was a gift. He agreed that the interest rate on the mortgage was 0 percent. According to his evidence, the money from the crops grown on his land was going towards the mortgage. He agreed that his parents have never asked him for a payment on the mortgage. [ 38 ] Tyler testified that over the years, he grew winter wheat, beans and soybeans on his property. [ 39 ] He testified that there were renovations made to the home that were either paid for by him or Lakeview Poultry. He did not recall the cost of those renovations. [ 40 ] Tyler agreed that he did not pay certain s. 7 expenses for the children including $350 for skating in 2023. He testified that he did not pay his share of s. 7 expenses for summer day camp or afterschool care because he “did not agree to it”. He testified that he made child support payments by cheque and e-transfers and agreed that he occasionally missed payments. Tyler testified that it was usually during months when he was not getting along with Sherena and they were fighting and he forgot to pay her. [ 41 ] Tyler was asked in examination in chief about the document at Tab 12 of the applicant’s supplementary document brief which is a chart outlining s.7 expenses for the children. He testified that he was not happy that Tucker was in daycare in 2018 because he felt it was taking time away from people who would look after him for free such as himself or his mother, and did not contribute to that expense. [ 42 ] He testified that he was not presented with a bill for childcare in 2019. When asked if he had input into other s. 7 expenses before they were incurred, he testified “I can’t recall exactly”. When asked if he made other contributions to s. 7 expenses, he testified that he could not recall. Tyler testified that he was never provided with a bill or asked to pay s. 7 expenses. He did not dispute the amount of the s. 7 expenses incurred. [ 43 ] Tyler’s 2023 Income Tax Return was filed at trial, his line 150 income was $48,945.58. His Financial Statement sworn September 10, 2023, reflects that his gross income in 2022 was $48,933. [ 44 ] The respondent’s Income Tax Returns were introduced at trial and reflect the following income at line 150 which includes employment income and farm income: 2014: $26,283.32 2015: $20,426.60 2016: $26,113.80 2017: $31,655.71 2018: $27,759 2020: $33,331.32 2021: $51,497.04 [ 45 ] Tyler’s 2017 Income Tax Return was reassessed in 2019 and reflects total income of $40,655 for that year. The respondent’s 2019 Income Tax Return was not filed in evidence. [ 46 ] During his testimony, an updated sworn Financial Statement (FS) was introduced into evidence. That FS was sworn on April 6, 2024. In that document it states that Tyler was working at Hank Shotman Pig Farms. However, when he testified, he said he did not work there. His employment income was listed as $2,540 per month. That was inaccurate, as of the date that the document was sworn it was $4,083 per month. He claimed deductions under “Part 2: Expenses” for the payment of property insurance and his cell phone which he agreed in his testimony that he did not pay for. Under “Part 4(a): Land”, he agreed that the estimated market value of the home was undervalued. He also claimed an expense under “Part 5: Debts and other Liabilities” of half of “loan from corporation with respect to matrimonial home upgrades $156,566.16”, which is unsupported by any invoices. [ 47 ] He was not sure what the “rental income” he received in 2023 was, nor did he report farm income, though he should have. [ 48 ] The respondent testified that he has a life insurance policy but does not know the value because his mother takes care of it. His parents are the beneficiaries. [ 49 ] Tyler testified that he is not a shareholder of Lakeview Poultry and does not work for the family business. In 2017 he worked for them doing “agricultural contract work” and was not actually an employee. [ 50 ] In cross-examination, he agreed that the amount included in his September 10, 2023 FS relating to his bank account is not true, and that the information relating to his life insurance is not true. [ 51 ] The respondent’s mother, Wilene Leyen, testified. She testified that she has three children, including Tyler. She and her husband Leroy own Lakeview Poultry and Victoria works for her. In 2022 she suffered a stroke and Victoria took over responsibility for paying the bills. [ 52 ] According to Mrs. Leyen’s testimony, the matrimonial home and farm property were purchased for Tyler when he turned 18 years old, and she and her husband took back a mortgage of $200,000. She testified that Tyler was to make annual payments of $25,000 on the mortgage with no interest. [ 53 ] According to Mrs. Leyen, Tyler worked for them at that time and he earned $5,000 per month, so they deducted $2,000 per month to apply towards the mortgage. She said in the first year it was fine and then Tyler got sidetracked. Mrs. Leyen testified that the balance outstanding on the mortgage is $176,000 after credit for $24,000 paid by him in 2010. She testified that the land was “our” land and we could do what we want with it. [ 54 ] Mrs. Leyen testified that she has never made a demand for payment of the mortgage and there is no loan agreement. She has not made any efforts to collect this debt and has not tried to take the property back. [ 55 ] Mrs. Leyen produced no documents to support her evidence. She testified that Tyler has not made a mortgage payment since 2011. However, according to her evidence, Tyler worked for their company in 2012 and even in 2013 when he and Sherena married. There are no arrangements in place for the repayment of this debt. [ 56 ] Mrs. Leyen testified in cross-examination that she expected payment on the mortgage because Tyler got his inheritance. She agreed that they loaned Tyler $15,000 in 2018 to purchase a car for Sherena after he wrecked hers in a car accident and he has not paid that loan back. Mrs. Leyen had no idea how much Tyler owed his parents for the home renovations. [ 57 ] At the conclusion of the evidence on April 12, 2024, counsel for the respondent requested that his client be permitted to file an updated Financial Statement since it was apparent that the Financial Statement previously filed was incomplete and inaccurate. He was granted leave to do so. THE LEGAL PRINCIPLES AND ANALYSIS Failure to make financial disclosure [ 58 ] Financial disclosure has been an ongoing issue in this case. There were at least two orders made requiring the respondent to make financial disclosure. In fact, it was evident from the evidence of the respondent at trial, that although he did file some financial statements, they were inaccurate, even though they were sworn statements. [ 59 ] In Roberts v. Roberts , 2015 ONCA 450 , at paras. 11-13 , Benotto J.A. speaking for the court emphasized the importance of disclosure in family law proceedings: The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders – let alone three - to obtain production. [ 60 ] In this case, significant resources were dedicated to endeavouring to obtain timely and complete financial disclosure from the respondent. It resulted in unnecessary delays in having this matter proceed to trial. [ 61 ] On September 25, 2020, Raikes J. made an order requiring the respondent to file an updated Financial Statement, his 2019 Income Tax Assessment and disclose his revenue from snowplowing for 2019 and 2020. On October 9, 2020, Raikes J. extended the time for the delivery of the financial statement to October 25, 2020. [ 62 ] On July 6, 2022, Nicholson J. ordered the respondent to file within 10 days, an updated sworn financial statement “with all sections completed”, and to provide a sworn affidavit disclosing his income from snowplowing, explaining why certain personal expenses were paid for by Lakeview Poultry (his parents company), and his Income Tax Returns for 2020 and 2021, among other disclosure ordered. [ 63 ] As of July 27, 2022, when a Trial Management Conference was conducted, that order had not been complied with and financial disclosure remained outstanding. [ 64 ] On July 12, 2023, almost a year later, when Nicholson J. conducted a further Trial Management Conference, he noted that “the respondent had not complied with prior orders”. He made a further order that updated financial statements were to be exchanged 30 days in advance of trial, and that NFPSs were to be exchanged by August 31, 2023. As of the commencement of the trial, April 8, 2024, the respondent had not filed a NFPS. [ 65 ] The respondent served and filed a NFPS for the first time on April 16, 2024, before submissions on this matter were heard, but after the conclusion of the evidence despite the previous court orders. The court expressed concern that because the NFPS was filed after the conclusion of the evidence that the inability of the applicant to cross-examine him on its contents was unfair. I heard the submissions of counsel on this issue. The applicant opposed the NFPS being admitted for any purpose. Counsel for the respondent suggested that it only contained the information he had already testified to at trial and should be admitted and used by the court. [ 66 ] Although the court permitted the respondent to file an updated financial statement after evidence was completed, this was done with the consent of the applicant. The court did not grant leave to the respondent to file a NFPS at that late date, and that document will not be considered in determining the outstanding issues. [ 67 ] I find that Tyler Leyen was in breach of the orders of Nicholson J. dated July 6, 2022, and July 12, 2023. [ 68 ] The applicant asks the court to make an adverse finding against the respondent due to his consistent failure to make financial disclosure, failure to satisfy undertakings and to follow court orders. [ 69 ] The applicant relies on the decision of Sossin J. (as he then was) in Whiteside v. Govindasamy , 2021 ONSC 789 . In that decision, Sossin J. was asked to draw negative inferences due to the respondent’s lack of disclosure. In that case, Sossin J. said at para. 50 that adverse inferences “may be warranted on those matters for which the parties take contrary positions and Mr. Govindasamy’s disclosure has been inadequate.” Credibility issues [ 70 ] Credibility is a central issue in this case. A court may accept some, all or none of any witness’ evidence. In assessing the credibility of a witness, the court should consider the following factors [1] : (i) Inconsistencies in the evidence, including internal inconsistences, prior inconsistent statements, and inconsistencies between the testimony of different witnesses; (ii) The existence of independent evidence that confirms or contradicts a witness’s testimony; (iii) Whether a witness is a party and may be motivated to fabricate evidence; (iv) Whether the witness’s evidence is credible; and (v) With caution, the demeanour of a witness; [ 71 ] I found the evidence of Sherena Leyen to be generally credible and reliable and consistent with the documentary evidence filed. On the other hand, the evidence of Tyler Leyen caused the court concern in several material aspects. In particular, the respondent acknowledged that despite the fact that the Financial Statement filed by him was a sworn document, it was inaccurate and inconsistent with the information contained in his Income Tax Returns. [ 72 ] He did not have the information necessary to answer many questions and displayed a careless and cavalier attitude towards the issues involved in this litigation. Equalization of Net Family Property [ 73 ] The applicant seeks a payment for equalization of net family property from the respondent pursuant to s. 5(1) of the Family Law Act , R.S.O. 1990, c. F.3, because her net family property is the lesser of the two net family properties. [ 74 ] As it relates to the issue of equalization, the main asset is a farm property of approximately 100 acres where the matrimonial home is located. The value of that home and property as of the valuation date according to the appraisal conducted by Mr. Byars is $1,183,000. The respondent did not obtain an appraisal of his own and initially would not admit that the appraisal by Mr. Byars was accurate. The court heard the viva voce evidence of Mr. Byars and accepts his uncontradicted evidence as to the value of the property. [ 75 ] The applicant takes the position that the matrimonial home plus one acre of land should be taken into account for the matrimonial property in accordance with the provisions of s. 18(3) of the Family Law Act . The respondent does not dispute this. When I refer to the matrimonial home in this decision, I am referring to the matrimonial home plus one acre of the farm property. [ 76 ] The applicant served the respondent with two Requests to Admit as to the value of her assets and debts along with financial statements as required by the Family Law Rules , O. Reg. 114/99. The respondent has not complied with his obligations to provide financial disclosure even though there are a number of court orders requiring him to do so. I have concerns regarding the accuracy of Tyler’s Financial Statements given his testimony as to their inaccuracies. He has not provided any documentary evidence to support his position as to the appropriate calculation of net family property. [ 77 ] The farm property was transferred from Leroy and Wilene Leyen, Tyler’s parents to him on January 8, 2010, for consideration of $300,000. The Land Transfer Tax Statement claims that $100,000 was paid in cash and the vendors (Mr. and Mrs. Leyen) took back a mortgage of $200,000. According to the evidence, over the course of over 14 years (as of the date of trial) no real payments had been made on the mortgage, no demand for payment made and no arrangements made to pay the mortgage by Tyler to his parents. [ 78 ] Although Mrs. Leyen claimed that her son, the respondent, had repaid approximately $24,000 of the outstanding mortgage during the first year, in 2010, and so the outstanding loan is only $176,000, I have serious concerns regarding her credibility. She obviously has a vested interest in helping her son. She did not provide any documentary proof of the existence of the mortgage. She provided no documentary proof that any money had been repaid on the mortgage. In fact, I found it interesting that she referred to Tyler’s farm as “our” land and that she felt she could do what she wants with it. [ 79 ] In Barber v. Magee , 2017 ONCA 558 , the Court of Appeal dealt with the issue of how to determine whether funds that are advanced are to be considered a loan or a gift. In that case, the appellant claimed that funds advanced to him by his father were loans and accordingly, debts owed by him which would reduce his net family property. The trial judge found that they were gifts and therefore included in his net family property. The Court of Appeal found no error in the trial judge’s reasoning. The court said at para. 4: Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan: Locke v. Locke , [2000] B.C.J. No. 1850 , 2000 BCSC 1300 , [2000] B.C.T.C. 681 , at para. 21 ; Klimm v. Klimm , [2010] O.J. No. 968 , 2010 ONSC 1479 (S.C.J.) , at paras. 28-32 ; Mora v. Mora , [2011] O.J. No. 2188 , 2011 ONSC 2965 (S.C.J.) , at paras. 38-40 . A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia. [ 80 ] In this case the court heard evidence from Tyler’s mother, confirming that she and Tyler’s father did not intend to gift the farm property to him, but rather it was purchased by them for him and they held a mortgage in the amount of $200,000. [ 81 ] Various factors have been considered by courts in determining this issue as “objective indicators” of whether the funds advanced were a gift or a loan. In Chao v. Chao , 2017 ONCA 701 , at para. 54 , the court considered the following factors as relevant to this issue: • Whether there are any contemporaneous documents evidencing a loan; • Is the manner for repayment specified? • Whether there is security held for the loan; • Whether advances have been made to one child and not another; • Have any payments been made? • Is there an agreement as to the terms of repayment? • Was there a demand for repayment before the separation of the parties? • Was there any expectation, or likelihood of repayment? [ 82 ] The onus is on the party claiming a gift to prove it is. In this case that is the applicant. However, pursuant to s. 4(3) of the Family Law Act , the onus of proving a deduction under the definition of “net family property” is on the person claiming it. [ 83 ] According to the evidence of the applicant, the respondent advised her that his parents had gifted him the property. No payments were ever made on the mortgage during the course of the marriage, nor was she even aware that there was a mortgage on the matrimonial home. [ 84 ] Although Tyler testified that he intended to pay the mortgage, there was no evidence offered of any efforts to do so, or any tangible arrangement to do so. [ 85 ] In this case, there are no contemporaneous documents evidencing the mortgage. There is no proof that any of the outstanding balance has been repaid. The manner of repayment is not specified and, in fact, no payments have been made during the last 13 years according to Wilene Leyen. In my view, there could be no reasonable expectation on the part of Wilene and Leroy Leyen that this mortgage will ever be paid, and I am not satisfied on the basis of the evidence that it is a genuine mortgage. [ 86 ] Based on the evidence, I am satisfied that this was a gift from Wilene and Leroy Leyen to Tyler Leyen and there is no genuine debt or liability owed by him in the form of a mortgage owed to be deducted from the value of property for the purpose of calculating net family property. [ 87 ] The other contentious issue in calculating net family property is whether there is an outstanding loan to Tyler from Lakeview Poultry that was used for home renovations, and which should be deducted from the net family property calculation. Again, the evidence relied upon by the respondent in support of this position is lacking. No receipts or proof of payment has been provided. During the trial, the court expressed concern regarding the evidentiary value of the document filed as exhibit #22 which is called “Ledger prepared by accountants for Lakeview Poultry”. The provenance of this document is unstated and unclear. There is no evidence as how or why this document was created. The author of the document was not called to testify. It purports to show “Shareholder Loan” amounts paid for Tyler, however the evidence at trial is that Tyler is not a shareholder of Lakeview Poultry. It refers to the amount of $15,711.49 being paid on behalf of Tyler for “house renovations” in May 2016. However, as I indicated, this document has no evidentiary value. There was no evidence offered as to the details of those payments and the amount is inconsistent with other amounts claimed to be related to the home renovation loan. [ 88 ] Quite frankly, the evidence relating to the existence of a loan from Lakeview Poultry to the respondent for renovations is entirely unclear. Not one witness was able to identify with any precision the amount of this loan. As I indicated earlier, the onus is on the party seeking to claim a deduction from net family property to establish its existence. In my view, on the basis of the evidence, the respondent has failed to satisfy his onus that there is a genuine debt owed in relation to a loan for home renovations and, accordingly, no value will be deducted from net family property for this amount. [ 89 ] Because the respondent failed to serve a NFPS in this matter in accordance with the requirements of the Family Law Rules and orders of the court, the court does not have the benefit of his NFPS in determining this issue. The court does have the respondent’s evidence at trial on these issues, however. [ 90 ] The applicant asks the court to draw an adverse inference against the respondent due to his failure to make financial disclosure, failure to satisfy undertakings and his omissions in his financial statements. I am inclined to draw an adverse inference against the respondent but, as indicated, I have serious concerns about the credibility and reliability of the respondent’s evidence in any event particularly in light of his admission that his earlier sworn statements were inaccurate and untrue. [ 91 ] According to the applicant, giving the respondent the appropriate deduction for the pre-marriage value of the land as per the appraisal filed, she is entitled to a payment of $326,211.50 from the respondent as an equalization payment. The respondent agrees that he owes the applicant an equalization payment, but according to Tyler, he owes Sherena significantly less, specifically $33,894.01 according to the written submissions of his counsel. [ 92 ] Ultimately at the conclusion of the trial, the respondent did not dispute the value of the property as appraised by Mr. Byars but suggests that a deduction should be made for the value of the mortgage outstanding of $176,000. He also sought to deduct $47,211.49 for a loan for renovations to the matrimonial home and $15,000 for the loan from Lakeview Poultry for the purchase of a motor vehicle post separation after he wrecked the vehicle. In his oral submissions, counsel for the respondent submits that the equalization payment due to Sherena is $231,900.25. To be frank, the respondent’s position on this issue was confusing and inconsistent. [ 93 ] Applicant’s counsel prepared and filed a Form 13C Comparison of NFPSs (the Comparison) dated May 2, 2024, based on the evidence at trial, and the NFPSs filed by the parties, including the NFPS filed by the respondent on April 16, 2024, however since the court did not permit the respondent to late file his NFPS, only the applicant’s information will be considered from that document. [ 94 ] The applicant relies on the evidence at trial, the financial statements filed as well as the documents contained in the Document Brief that was filed on consent at trial, in support of her position in relation to the values of her assets, debts and excluded property at the valuation date. As I indicated, there should be no deduction for any debts owed on account of a mortgage to Wilene and Leroy Leyen or a loan for home renovations. As it relates to the claim by the respondent that $15,000 should be deducted due to a loan from Lakeview Poultry for the purchase of a new vehicle for Sherena. I agree with the applicant, this debt was incurred post-separation and will not be deducted from net family property. [ 95 ] I am satisfied based on the evidence, that the claim for equalization made by the applicant is supported by the evidence, including the documentary material filed and the appraisal of Mr. Byars. I accept that evidence as it relates to the value of net family property of the parties. Accordingly, there will be an order that the respondent will be required to make a payment to the applicant by way of equalization in the amount of $326,211.50. [ 96 ] The applicant is claiming pre-judgment interest on this amount from the date that the claim was commenced at 2 percent. Child support [ 97 ] The applicant claims ongoing child support pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), for the children of the marriage, Tucker and Emery. She takes the position that the respondent has not been paying the proper and appropriate amount of child support and s. 7 expenses from the date of separation, July 2017, and, accordingly, he owes retroactive child support and s. 7 expenses. [ 98 ] Munroe J. made an interim order dated November 29, 2017, early on in the proceedings, which required the respondent to pay child support in the amount of $211 per month. That order pre-dated the birth of Emery, their second child. That order was based on the respondent’s 2016 income of $26,113 and remains in effect. That order also required the applicant to pay 55 percent of s. 7 expenses and the respondent to pay 45 percent of those expenses. [ 99 ] The applicant submits that the respondent has been underpaying child support for the duration of their separation. [ 100 ] The applicant submits that the court should impute income to the respondent pursuant to the provisions of s. 19(1) of the Federal Child Support Guidelines , SOR/97-15, which reads as follows: 19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. [ 101 ] The applicant relies specifically on the provisions of s. 19(d), (e), (f) and (g) of the Federal Child Support Guidelines. At the time of separation, the respondent was employed by his parents’ company, and continued to be so employed until 2019. The applicant introduced at trial, a schedule of the child support payments made by the respondent. [ 102 ] In the recent decision of the Court of Appeal for Ontario in Kohli v. Thom , 2025 ONCA 200 , the court said at paras. 108-109: The decision to impute income as part of the calculation of support is discretionary. The only limitation to that discretion is that there must be some evidentiary basis for the amount of income imputed: Monahan-Joudrey v. Joudrey , 2012 ONSC 5984 , at para. 21 ; see also Homsi v. Zaya , 2009 ONCA 322 , 65 R.F.L. (6th) 17, at paras. 27-28 ; and Staples v. Callender , 2010 NSCA 49 , 85 R.F.L. (6th) 236, at paras. 21-22 . The imputation of income for support purposes is a finding of fact made by the trial judge: Pirner v. Pirner (2005), 2005 44166 (ON CA) , 22 R.F.L. (6th) 291 (Ont. C.A), at para. 20 . It is not an exact science, and this court has repeatedly upheld a trial judge’s findings that “fairly reflect” the parties’ financial circumstances per ss. 15-18 of the Guidelines : see Mason , at para. 154; Ludmer v. Ludmer , 2014 ONCA 827 , 52 R.F.L. (7th) 17, at para. 25 . [ 103 ] In order to impute income to the respondent, the court must be satisfied on the evidence that there is a basis for so doing. The onus is on the party seeking to impute income to satisfy the court on a balance of probabilities that the other party is intentionally underemployed or that there is otherwise sufficient evidence to support a finding in relation to the circumstances outlined in s. 19(1) of the Federal Child Support Guidelines. [ 104 ] The applicant submits that when the respondent was employed by his parents, the financial arrangements were complicated. The respondent also had additional income from snow removal, some of which was not reported as income on his tax return. Further, there were clearly expenses that are paid for him by his parents’ corporation which he claimed to reduce his taxable income, and unreported farming income. He has also acknowledged in his testimony that he has failed to disclose income on his Income Tax Returns relating to farming income. [ 105 ] The applicant submits that the respondent’s income for 2017 should be comprised of his gross farming income, $53,160, plus his snow plowing income of $5,000 plus his employment income of $48, 933.81 for a total imputed income of $107,093. [ 106 ] The applicant submits that the respondent claimed expenses against his 2018 gross farming income for machinery repairs and insurance which are questionable. The applicant suggests that given the questionable bookkeeping evidence relating to expenses paid by Lakeview Poultry that those expenses ought not be allowed and Tyler’s income ought to be imputed at $93,713 for that year. [ 107 ] The applicant submits that the same income should be imputed for 2019 and 2020. For 2021 his income should be imputed to add gross farming income (although none was reported by him) and snowplowing income of $5,000 for a total imputed income of $96,275.00. [ 108 ] The respondent’s Income Tax Returns for 2019 and 2020 were contained in the respondent’s document brief, and although he testified about their contents, the Document Brief was not filed as an exhibit at trial. [ 109 ] The applicant submits that as it relates to the respondent’s 2022 income, he reported employment income but no farming income. According to the evidence, there were crops in the field. The applicant submits that the court could impute income based on rent at $10,500 or by adding farming income to his declared income. [ 110 ] The respondent’s 2023 Income Tax Return was made an exhibit at trial. The applicant submits that it is not accurate because it reports no farming income although Tyler testified that he farmed the front acreage and did have farm income. Sherena submits that the court should impute income for farming income plus rent to bring his income up to $94,484. [ 111 ] The onus is on the applicant in this case to satisfy the court that income should be imputed to the respondent. I am satisfied that the accounting method used by Tyler and by his parents is convoluted and deceiving. It appears to be some form of “creative accounting”. It is unclear how much money Tyler made from farming. According to his sister-in-law Victoria, she and her husband planted crops on Tyler’s farm in 2023. The evidence is unclear as to who earned money from that, but it appears that Tyler benefited in having his property taxes paid in exchange for the use of his land. [ 112 ] It appears that usually, the corporation uses Tyler’s land to plant crops and he does not receive payment, but payment in kind in the sense that some of his expenses are paid for by the corporation. [ 113 ] The respondent submits that he has actually overpaid child support since the date of separation based on payments made by him that exceed the amount ordered. The respondent is opposed to having income imputed to him in the amount suggested. He suggests adding 10 percent to his line 150 income from his Income Tax Returns if the court is inclined to impute income to him. [ 114 ] I am not satisfied that the evidence is sufficient to permit the court to impute income to Tyler in the manner initially suggested by the applicant. However, it appears that there has been an underreporting of income by the respondent. The alternative argument advanced by counsel for the applicant was to impute income to the respondent of $63,863 for every year from 2017 through to 2022 which is based upon using the high income from 2022 of $50,843 and adding to that the amount of $13,000 annually to account for farming income, potential rental income and income from snowplowing. This amount is based on the declared crop sales of 2017. The applicant suggests imputing a greater amount of income for the year 2023. [ 115 ] Based on the evidence, I am satisfied that the applicant has met her onus, that the income of the respondent is greater than what he has disclosed and I will impute income to the respondent. I will not impute income for the year 2017, but I will impute income at the amount submitted by the applicant of $63,863 per year for the years 2018 to 2023. [ 116 ] The children have been in the primary care of their mother from the time of their birth. She has been responsible for their day-to-day care. The respondent was well aware of his child support obligations. No effort was made by either party to vary the order of Munroe J. once Emery was born, to reflect any increase in the income of the parent paying support. [ 117 ] Accordingly, based on the order of Munroe J., the child support payable by the respondent, Tyler Leyen, to the applicant, Sherena Leyen, for the child of the marriage, Tucker Michael Leyen, born May 17, 2015, for 2017 shall remain in the amount of $211. That order pre-dates the birth of Emery Ilene on February 4, 2018. [ 118 ] However, commencing in 2018, the child support obligation of the respondent shall be based on his imputed income of $63,863. Based on the calculations provided by counsel, his child support obligation for January 2018 would have been $593. The child support obligation commencing in February 2018 based on two children would be $972. That obligation would continue on a go-forward basis. [ 119 ] I have been provided with a schedule by the applicant of support payments made by the respondent since the date of separation. No issue was taken by the respondent with the amounts paid. [ 120 ] Based on the imputed income, the respondent’s retroactive child support obligation is as follows: Time period Child support obligation Total 2017: August-December $211 per month $1,055 2018: January $593 $ 593 Feb.-December $972 $10,692 2019: Jan.-December $972 $11,664 2020: Jan.-December $972 $11,664 2021: Jan.-December $972 $11,664 2022: Jan.-December $972 $11,664 2023: Jan.-December $972 $11,664 2024: Jan.-April $972 $ 3,888 [ 121 ] The total amount due as child support from the date of separation until the conclusion of the trial in April 2024 is $74,548. According to the information provided, the respondent has paid a total of $47,350 in child support payments up until that date. Accordingly, the arrears of child support are fixed at $27,198. This does not include any child support payments made after April 2024. [ 122 ] As for s. 7 expenses owed, according to the order of Munroe J. made November 29, 2017, Tyler is responsible for 45 percent of s. 7 expenses. According to the order of Grace J. dated October 26, 2022, the applicant is responsible for the day-to-day care and supervision of the children including matters related to their health, education, general welfare and extra-curricular activities. While Tyler is allowed input into these decisions, the final decision rests with Sherena. [ 123 ] Tyler testified that he did not agree to some of the extracurricular activities that the children were involved in and did not agree that they should attend summer day camps or afterschool care. That decision was not up to him, it was Sherena’s to make. Although Tyler testified that he was not provided with some of those bills or asked to pay for the expenses, I do not accept that evidence. [ 124 ] Tyler is in arrears of his obligation relating to s. 7 expenses. It appears that he did not pay for s. 7 expenses involving health care and hockey as well as afterschool care. According to the evidence, the applicant incurred the following s. 7 expenses for the children for which Tyler should have paid 45 percent of the cost: Total s. 7 cost 45% of cost Amount paid by Tyler 2019: $4,667 $2,100 $0 2020: $ 250 $ 112.50 $0 2021: $ 731.69 $ 329.26 $0 2022: $2,171.18 $ 977.03 $0 2023: $3,804.26 $1,711.92 $331 2024: $ 630.68 $ 283.81 $262 [ 125 ] Accordingly, Tyler’s share of s. 7 expenses is $5,514.53, but he only paid $593. Accordingly, Tyler Leyen shall be ordered to pay to the applicant $4,921.53 as arrears of s. 7 expenses. [ 126 ] On a go-forward basis, the s. 7 expenses for the children shall be paid by the parties on a 50/50 basis so that each party will be responsible for paying one half of the cost. Spousal support [ 127 ] The applicant seeks both compensatory and non-compensatory spousal support retroactive to the date of separation. Compensatory support is premised on contributions made by one spouse to the other spouse during the relationship. This includes the roles that the parties assumed during the marriage. This may result in an advantage to one party and disadvantage to the other. [ 128 ] Non-compensatory support is based on need and ability to pay. The basis for the claim is the relationship itself and the financial interdependence that results from it. In Please v. Herjavec , 2020 ONCA 810 , at para. 14 , the Court of Appeal confirms that the overarching criterion in determining whether to order the payment of spousal support is a determination of what is reasonable having regard to the conditions, means and circumstances of the parties, in light of the factors and objectives set out in s. 15.2 of the Divorce Act . [ 129 ] The factors for consideration set out in s. 15.2(4) of the Divorce Act requires the court to consider the length of time that the spouses cohabited, and the functions performed by each of them during cohabitation. The parties were married for a short time, only four years and both parties were employed during the marriage. The respondent has not paid spousal support since the date of separation. [ 130 ] In the recent decision of the Court of Appeal for Ontario in Nairne v. Nairne , 2023 ONCA 478 , at para. 30 , the Court said: In determining entitlement to spousal support on the basis of compensation and need, the trial judge was required to step back and weigh the overall circumstances of the parties, rather than requiring, to the extent he may have done so, Ms. Nairne to prove in detail the role she played prior to the marriage breakdown and her financial needs after the breakdown: Moge v. Moge , 1992 25 (SCC) , [1992] 3 S.C.R. 813 , at pp. 866-70 ; Bracklow v. Bracklow , 1999 715 (SCC) , [1999] 1 S.C.R. 420 , at para. 36 . [ 131 ] In the circumstances of this case, the applicant was the primary caregiver to their child prior to separation. Their second child was not born until after the parties separated. She was employed outside of the home and earned income between 2014 and 2017 ranging from $20, 232 to $31,497. During that time, Tyler earned income ranging from $20,426 to $31, 655 (without income imputed to him). There was no evidence offered at trial that the applicant contributed directly to the respondent being able to earn income, or to working on the farm. [ 132 ] I am not satisfied, based on the evidence at trial that the applicant is entitled to compensatory spousal support. [ 133 ] As for non-compensatory support, the applicant submits that based on her calculations, including the imputed income, the DivorceMate calculations do not generate any spousal support obligation, however, the applicant is seeking a nominal amount by way of spousal support which can be varied at a later date if the need arises such as in the event of a serious illness of one of the children where she may not be able to work. [ 134 ] The applicant submits that she has suffered some economic consequences as a result of the marriage breakdown, and has not been able to purchase a home for herself and the children. [ 135 ] Based on all of the evidence, and based on my determination that income should be imputed to the respondent which increases his child support obligation, I am not satisfied that spousal support is owed in these circumstances and I will not order spousal support to be paid. CONCLUSION [ 136 ] Accordingly, I shall make the following orders:
- The respondent, Tyler Leyen, shall pay to the applicant, Sherena Marie Leyen, child support for the children of the marriage, Tucker Michael Leyen, born May 17, 2015, and Emery Ilene Leyen, born February 4, 2018, pursuant to s. 3 of the Child Support Guidelines, based on imputed income of $63,863 from January 1, 2018 to April 30, 2024. The respondent will have a credit against his obligation in the amount of $47,350. Arrears shall be fixed at $27,198, plus pre-judgment interest.
- Commencing on May 1, 2024, and on the first day of each month thereafter, the respondent, Tyler Leyen, shall pay to the applicant, Sherena Marie Leyen, child support for the children of the marriage, Tucker Michael Leyen, born May 17, 2015, and Emery Ilene Leyen, born February 4, 2018, the sum of $972 per month based on imputed income of $63,863.
- The respondent, Tyler Leyen, shall pay to the applicant, Sherena Marie Leyen, retroactive s. 7 expenses for the children of the marriage, Tucker Michael Leyen, born May 17, 2015, and Emery Ilene Leyen, born February 4, 2018, the sum of $4,921.53 plus pre-judgment interest.
- Commencing on January 1, 2025, the respondent, Tyler Leyen, shall pay to the applicant, Sherena Marie Leyen, his proportionate share of s. 7 expenses for the children of the marriage, Tucker Michael Leyen, born May 17, 2015, and Emery Ilene Leyen, born February 4, 2018, which shall be 50 percent of s. 7 expenses.
- The applicant, Sherena Marie Leyen, shall provide to the respondent, Tyler Leyen, notice of s. 7 expenses as they arise, along with a copy of an invoice or other proof of the cost of the expense. The respondent shall provide the applicant with his share of the expense within 30 days of receiving a request for contribution.
- If either party is entitled to health and/or dental coverage through employment, he or she will ensure that the children of the marriage are also covered under the benefits. If the respondent, Tyler Leyen, obtains such benefits in the future, he will notify the applicant, Sherena Leyen, within 30 days of such coverage being in place, and provide the applicant with all necessary information in order to access those benefits for the children.
- The parties shall exchange copies of their Income Tax Returns each year for the prior year by June 15th each year as well as a copy of the notices of assessment within 10 days of receiving it. The parties shall review the amount of child support and any adjustment shall be effective as of July 1, 2025, for the following year.
- There shall be a charge registered against title to the respondent’s property located at 45099 Huron Bruce Road, R.R. #1, Clifford, Ontario to secure the payment of the child support arrears as set out in this order.
- The respondent, Tyler Leyen, shall pay to the applicant, Sherena Marie Leyen, the sum of $326,211.50, plus prejudgment interest in equalization of the net family property of the parties. The respondent shall have a credit in the amount of $10,000 for the motor vehicle he purchased for the applicant after the separation. The net amount owing of $316,211.50 shall be paid by bank draft, payable to the solicitors for the applicant, Sherena Marie Leyen, forthwith.
- Upon payment of the equalization payment, the property at 45099 Huron Bruce Road, R.R. #1, Clifford, Ontario shall no longer be a matrimonial home pursuant to the Family Law Act and shall be the sole property of the respondent, Tyler Leyen.
- Each of the parties shall retain any other property as defined by the Family Law Act now in their possession and ownership free from any claim of the other.
- The applicant, Sherena Marie Leyen, may proceed with a motion for an uncontested divorce at her discretion.
- For as long as child support is paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year within 30 days of the anniversary of this order in accordance with s. 24.1 of the Federal Child Support Guidelines.
- Unless the support order is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support orders shall be paid to the Director who shall pay them to the person to whom they are owed. COSTS [ 137 ] The parties did not make any submissions as to costs. If the parties cannot agree as to the issue of costs, they may make submissions in writing limited to 5 pages in length, exclusive of a bill of costs. Those submissions must be made within 30 days of the date of this decision. _________________________ Maria V. Carroccia Justice Released: April 1, 2025 COURT FILE NO.: FS-17-00000105 DATE: 20250401 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sherena Marie Leyen Applicant – and – Tyler Leyen Respondent REASONS FOR JUDGMENT Carroccia J. Released: April 1, 2025 [1] See Whiteside v. Govindasamy , at para. 52 .