Uncontested Trial Endorsement – Part 2

Court File No.: FS-23-00036064-0000
Date: 2025-04-07
Ontario Superior Court of Justice

Between:
Maria Teresa Del Grosso (Applicant)
– and –
Peter (Pietro) Del Grosso (Respondent)

Applicant Counsel: Robert C. Watt
Respondent: Self-represented
Heard: April 4, 2025

Justice Kiran Sah

Overview

[1] This endorsement is further to my endorsement dated February 24, 2025, 2025 ONSC 2029. The two endorsements should be considered and read together.

[2] This is the return of an uncontested trial, reviewed in chambers.

[3] Pursuant to my February 24, 2025, endorsement, the applicant submitted three affidavits with further evidence.

[4] The issues to be determined, as set out in my previous endorsement, are the following:

1. Is an equalization payment owing to the applicant, and if so, is it appropriate for the matrimonial home to be in her name alone in satisfaction of that payment?
2. Is the respondent responsible for reimbursing the applicant for one half of the interest payments she made on three lines of credit that she identified in her materials?
3. Is the respondent liable to pay back the total amounts owing in the three lines of credit?
4. Is the applicant entitled to spousal support? If so, what is the appropriate quantum of retroactive and ongoing support payable by the respondent?

Evidence and Analysis

Issue 1 – Equalization of Net Family Property

[5] Section 5(1) of the Family Law Act, RSO 1990, c F.3 (“FLA”) sets out the presumptive formula for the determination of equalization of net family properties (“NFP”). It provides that when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

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

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

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

[9] To undertake this analysis, in the ordinary course, a net family property statement is prepared based on the financial information of the parties as disclosed in their Form 13.1 Financial Statements.

[10] In this case, the respondent has not produced a Financial Statement.

[11] An individual must make full and complete financial disclosure to ensure that the information required to decide on the issue is before the court. The respondent’s failure to do this may result in an adverse inference being drawn against him.

[12] It is the applicant’s evidence that the matrimonial home, which is in her name alone, had a value of approximately $1 million as of the parties’ valuation date. There is no documentary evidence to substantiate this.

[13] The applicant deposes that the home requires a lot of work and that the value of the home has remained the same since separation.

[14] The applicant did not submit any documentation to substantiate the alleged value of the matrimonial home at the valuation date or present.

[15] The applicant submits that the respondent’s business, as of the valuation date, was worth at least $800,000. She did not provide any documentation to substantiate this claim. She relies on information from her son, an accountant, who up to the date of separation prepared the respondent’s income tax returns. The parties’ son’s affidavit was submitted for this uncontested trial and evidence contained therein is outlined below.

[16] The applicant deposes that the respondent had other investments in cryptocurrency at the time of separation.

[17] It is the applicant’s evidence that the respondent’s net family assets as of their date of separation were far greater than hers.

[18] The parties’ son attaches to his affidavit an evaluation of both parties’ assets and liabilities as of valuation date, based on his knowledge and records.

[19] This document reveals the respondent having date of marriage assets in the amount of $86,000, comprised of $78,000 worth of land and $8,000 of general household items and vehicles. The document sets out that the respondent had valuation day assets of $853,814.04, comprised of $5,400 in bank accounts, savings, securities, and pensions, $16,965 in life and disability insurance, $788,449.04 in land, and $43,000 of general household items and vehicles. This document also reflects the respondent having date of marriage debts and liabilities of $47,500.

[20] This document reveals the applicant having $70,000 worth of date of marriage assets in the form of land and $47,500 of date of marriage debts and liabilities. As at the valuation date, the document reveals the applicant having total assets of $1,016,042.34, comprised of $7,042.34 in bank accounts, savings, securities, and pensions, $1,000,000 worth of land, and $9,000 of general household items and vehicles. For debts and liabilities, the document reveals the applicant having valuation date debt of $182,196.56.

[21] The document also reveals values described as “household” assets and liabilities. The household assets as of the date of marriage are listed as $156,000, with date of marriage debts and liabilities of $95,000. The household assets as of the valuation date are reflected to be $1,869,856.38, with household debts and liabilities on valuation date of $182,196.56.

[22] I cannot accept this evidence in place of a sworn financial statement from the respondent and a net family property statement. The parties’ son does not disclose what records were reviewed or relied on. He does not set out the source of his knowledge.

[23] In her affidavit, the applicant claims that she has decided to waive any further rights to an equalization of the net family assets, other than having the complete ownership of the matrimonial home. She deposes that the respondent’s family assets at the date of separation are greater than hers.

[24] In the same affidavit, she asks that title of the ownership of the matrimonial home, where she has continued to live since separation, be given to her in full settlement of any claims for any further equalization payment.

[25] She presents two positions. On her evidence she both waives equalization of net family property and also takes the position that full ownership of the matrimonial home is sufficient to cover the equalization payment that is owed to her.

[26] The applicant does not submit that she is entitled to an unequal division of net family property in her favour, pursuant to s. 5(6) of the FLA.

[27] The court has jurisdiction to properly consider the issue of equalization of net family property as it was pleaded in the applicant’s application to the court.

[28] I am unable to conclude that full ownership of the matrimonial home is sufficient to cover the equalization payment that is owed to the applicant. To come to this conclusion, I must first determine that payment is owed, and I cannot determine an equalization payment on the evidence presented.

[29] There is insufficient evidence to assess net family property and no basis to make a factual finding on this issue.

[30] The evidence offered by the parties’ son is deficient. Although it purports to provide information about the respondent’s assets, debts, and liabilities at the date of marriage and date of separation, there is no evidence that this information is accurate, and there is a lack of other financial information as required to be disclosed under s. 8 of the FLA.

[31] The court is unable to calculate or assess the respondent’s net family property, and in the absence of this information, there is no basis to order an equalization payment or order that the applicant’s sole ownership in the matrimonial home is sufficient to cover the payment of same.

[32] I will now turn to the applicant’s request to waive any further rights to an equalization of the net family property, other than having the complete ownership of the matrimonial home.

[33] The court is more aligned to the applicant’s position that she waives any equalization payment by either party because of the impossibility of assessing the amount owing due to the respondent’s failure to provide financial disclosure.

[34] I acknowledge that the matrimonial home is solely in the applicant’s name on the consent of the parties. The parcel register attached to a supplementary affidavit suggests that both parties purchased the home in 1989, but that it was transferred from their joint names to the applicant’s name alone on October 17, 2007, for two dollars. No explanation was provided about why this transfer occurred, but it did, almost 17 years prior to the parties’ separation.

[35] The matrimonial home is already in the applicant’s name, I do not see why an order is required to restate same. Further, I have not been provided with any authority directing me to the jurisdiction the court has to make such an order.

[36] The Court of Appeal for Ontario recently allowed an appeal and set aside provisions of a final order made at an uncontested hearing relating to the equalization of net family property. See Cohen v. Cohen, 2024 ONCA 114, 99 R.F.L. (8th) 288.

[37] The lower court judge found that a non-participating respondent was entitled to an equalization payment, despite there being an inadequate factual basis to assess the net family property of the respondent.

[38] The Court of Appeal concluded that absent information necessary to assess net family property, an equalization payment could not be made in favour of the respondent.

[39] In that case, similar to the case at bar, there was no evidence of the respondent’s assets or debts and liabilities at the date of marriage or valuation date. There was no evidence disclosed as required pursuant to s. 8 of the FLA.

[40] The Court of Appeal concluded that in the circumstances of the case, it was appropriate to make an order that no equalization payment was owed by either party to the other.

[41] Following this reasoning, I conclude that a similar order is applicable to the facts of this case.

[42] Accordingly, there shall be no equalization payment owing by either party to the other.

Issues 2 and 3 – Lines of Credit

[43] The applicant seeks an order that the respondent pay off and discharge two Scotiabank lines of credit and one Royal Bank line of credit. Further, she seeks that the respondent reimburse her one half of the interest she paid on the three lines of credit, which she claims he refused to pay following their separation.

[44] She does not provide the authority setting out the court’s jurisdiction to order that the respondent reimburse her outside the context of a net family property calculation.

[45] I have ordered that there is no equalization payment owing. In my view, the FLA does not provide the court with the jurisdiction to make the orders requested.

[46] Part I of the FLA sets out the courts’ jurisdiction to deal with a spouse’s debts and other liabilities.

[47] Sections 5, 7, 8, and 9 all apply to this case, and they do not provide a means to order payment as requested by the applicant.

[48] I acknowledge that the respondent’s failure to provide disclosure can permit the court to draw an adverse inference.

[49] However, in my view, the adverse inference cannot extend to the point where the court deals with debt outside the confines of what is set out in the legislation.

[50] Even though there is no evidence to dispute the applicant’s statement that the lines of credit were incurred by the respondent and for his sole benefit, it would be erroneous to order that he pay the joint debts off without consideration for the proper application of the FLA.

[51] If both parties presented full and frank financial disclosure and both participated in the litigation, a determination could have been made regarding on whose side of the net family property ledger the joint lines of credit would fall, or their treatment could be considered in the context of a post-separation adjustment. It was impossible to conduct this analysis.

[52] Having concluded that no equalization is owing, I cannot make the order sought by the applicant regarding the joint debts.

[53] On a practical level, even if I did make the order requested, the lines of credit are all joint debts held with the banks. Any non-compliance from the respondent leaves the applicant in no better of a situation.

[54] In requesting that the court order the respondent to reimburse her one half of the interest paid on the lines of credit, the applicant is seeking the equivalent to a post-separation adjustment.

[55] Post-separation adjustments are considered in the context of property division. They are not to be considered in isolation. To consider an adjustment or a repayment of debt outside the ambit of property division ignores the purpose of the property provisions of the legislation.

[56] Part I of the FLA provides for the orderly and equitable division of marital property. To order the payment of debt arbitrarily, without consideration for the methodical provisions of the FLA, is unreasonable and the potential consequences may include the development of a different regime for property division.

Issue 4 – Spousal Support

[57] As set out in the February 24, 2025, endorsement, I found the applicant entitled to spousal support, but I required additional evidence to assist in the determination of quantum.

[58] Turning first to the respondent’s income, the applicant requests his income be imputed to $120,000 per annum.

[59] The respondent has not presented any financial information to the court, despite being ordered to at the case conference.

[60] The applicant attempts to rely on income information provided by the respondent directly at the case conference held in June 2024.

[61] The case conference instructions page explicitly states:

Each conference is private and confidential. Everything said during the conference and any opinions that are given cannot be used outside the conference. Only a written agreement or orders that are made by the judge can be referred to later in your court case.

[62] Rule 17(4) of the Family Law Rules, O. Reg. 114/99, sets out the purposes of a case conference.

[63] Case conference briefs do not form part of the continuing record unless the court orders otherwise, and the briefs shall be returned at the end of the conference to the parties who filed them or be destroyed by court staff immediately after the conference: see Family Law Rules, at r. 17(22).

[64] If the court orders that a case conference brief form part of the continuing record, that portion of the brief that deals with settlement of the case shall be deleted: see Family Law Rules, at r. 17(22.1).

[65] In my view, rr. 17(22) and (22.1) contemplate the likelihood of settlement discussions occurring at a case conference. This is supported by r. 17(4)(a).

[66] If case conference briefs are not to form part of the court record, so too, by extension, should there be a consideration of restricting the reproduction of discussions from the case conference.

[67] Rule 17(23) speaks to the confidentiality of a settlement conference. No similar rule exists in relation to a case conference.

[68] If no statement made at a settlement conference can be disclosed to any other judge, I take the view that the same should extend to a case conference, given that the Family Law Rules provide that one of the purposes of a case conference is to explore the chances of settling the case.

[69] Accordingly, I place no weight on statements made by the respondent at the conference regarding his income.

[70] I am persuaded by the evidence provided by the applicant in her supplementary affidavit. I accept the uncontroverted evidence and make the following findings, in addition to those set out in my February 24, 2025, endorsement:

• The respondent is working as an architect in his personal capacity and through his corporation, P. Del Design Inc. (“corporation”). This corporation has an office located in Woodbridge, Ontario.
• The respondent is listed as an architect on a Parkdale Preserve project which involves 46 custom homes in Woodstock, Ontario.
• In 2023 and 2024, through his corporation, the respondent was listed as the architect for two residential projects in Aurora, Ontario.
• In 2022, through his corporation, the respondent appeared as the applicant in an appeal of a committee adjustment decision wherein the respondent was listed as an architect for a residential project in Toronto, Ontario.
• In or around September 2024, through his corporation, the respondent was noted to be affiliated with a residential condominium project called Addington Park condominiums, in Toronto, Ontario.
• In or around May 2024, through his corporation, the respondent was affiliated with and noted to be a designer of a building of a project called Manors on Mayfield in Whitby, Ontario.

[71] The applicant submits that a lead architect in Toronto can earn an average salary of $155,053 per year based on her search on the website Indeed, an employment agency.

[72] A party who is seeking to impute income bears the onus of establishing an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, para 28. The applicant has succeeded in establishing the evidentiary basis, as set out above.

[73] Once a party seeking to impute income presents evidence to support the imputation of income, the onus shifts to the other party to satisfy the court as to their income level and that income should not be imputed: Kinsella v. Mills, 2020 ONSC 4785, 44 R.F.L. (8th) 1, para 166. The respondent has not responded to the claims advanced against him. He chose not to participate in this litigation.

[74] The applicant is entitled to spousal support based on several relevant factors arising from s. 33(9) of the FLA, as set out in my February 24, 2025, endorsement.

[75] I find that the applicant has established that she is entitled to support on a compensatory and non-compensatory basis. She should be compensated for the role she assumed in the parties’ relationship, and she should also be supported in accordance with her needs, including her age and stage in life.

[76] I also find that the respondent can pay spousal support based on his work history and the affidavit evidence of the applicant surrounding his current employment and potential remuneration.

[77] The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include when the spouse has failed to provide income information when under a legal obligation to do so.

[78] Given his years of experience and current employment activity, I accept the applicant’s evidence about the respondent’s ability to earn at least $155,000 and impute annual income to the respondent of $155,000.

[79] I also accept the evidence received from the applicant that her part-time employment at Cloverdale Mall has been terminated. I accept that she has attempted, with no success, to obtain employment.

[80] I also accept that she has been required to borrow money from her daughter and withdraw RRSPs to cover the costs of certain expenses since separation. I find her income for spousal support purposes, as reflected in the evidence, to be zero.

[81] Given the applicant’s strong entitlement to compensatory and non-compensatory support, I find that mid- to high-range spousal support is reasonable.

[82] The applicant seeks spousal support retroactive to June 1, 2022, the month after the parties separated and the respondent vacated the matrimonial home.

[83] The applicant commenced her application in May 2023. I see no reason to interfere with the requested commencement date of spousal support. It is consistent with her clear need for support. Further, the respondent had notice of the claims being advanced against him and chose not to participate or even respond to this case.

[84] The Spousal Support Advisory Guidelines formula results in a range for spousal support of $4,844 to $6,234 per month for an indefinite (unspecified) duration, subject to variation and possibly review.

[85] Accordingly, an order shall issue requiring the respondent to pay to the applicant spousal support, commencing June 1, 2022, and payable on the first day of each month thereafter, in the monthly amount of $6,000 based on the respondent’s imputed income of $155,000 and the applicant’s income of $0.

Costs

[86] The applicant submitted a costs outline setting out partial indemnity costs in the amount of $18,499.38, substantial indemnity costs in the amount of $27,419.31, and full indemnity costs of $30,392.63.

[87] The primary lawyer working on the file was called in 1973 and charges an hourly rate of $500 an hour. The secondary lawyer was called in 2019 and charges $275 per hour. These rates are reasonable.

[88] Some of the time spent on the file is excessive and there appears to be repetition between the primary and secondary lawyer. For example, over 9 hours were spent on preparation for motion material for substituted service as between the two lawyers. Accordingly, there will be a downward variation of costs to be ordered.

[89] The applicant is entitled to her costs. She was not completely successful on her uncontested trial given the court decision to not order the respondent repay the joint lines of credit or reimburse her one half of the payments made to the lines of credit.

[90] Having considered the factors set out in r. 24(12), including the respondent’s non-compliance with the rules of this court and a court order, I find that a fair, reasonable, and proportionate costs award is $15,000, inclusive of HST and disbursements.

Orders

[91] Pursuant to the FLA, I order the following:

1. There shall be no equalization payment owing from one party to the other.
2. The respondent shall pay to the applicant spousal support, commencing June 1, 2022, and payable on the first day of each month thereafter, in the monthly amount of $6,000 based on the respondent’s imputed income of $155,000 and the applicant’s income of $0.
3. The respondent shall pay to the applicant her costs in the amount of $15,000, inclusive of HST and disbursements.
4. SDO and SDOI to issue.

Justice Kiran Sah
Released: April 7, 2025