Superior Court of Justice – Ontario

Court File No.: FC-21-56844
Date: 2025/04/07

Parties

Applicant: Tammy Sundberg
Respondent: Kevin Sundberg

Before: Justice M. Tweedie
Counsel:

• Ryan Baker, Counsel for the Applicant
• Respondent, Self-Represented

Heard: September 24–27, 2024, and October 4, 2024

Reasons for Decision

Introduction

[1] The Applicant wife (“the wife”) and Respondent husband (“the husband”) began cohabiting on August 1, 2002, and were married on November 17, 2010. The wife asserts the parties separated on September 7, 2020. The husband asserts the parties separated on December 4, 2020.

[2] The parties have two children, Sierra, born April 5, 2013, and Henrik, born July 17, 2016. The parties entered into a final consent order regarding parenting time and decision making on December 23, 2024. Although the husband initially sought orders relating to parenting time and decision making at the outset of this trial, this court held that those issues had been resolved on a final basis and this court was not the forum for a variation of the final order as there was no Motion to Change before the court.

[3] Upon separation, the parties continued to reside in the same home until July 2022 when the wife left the home with the children.

Issues for Trial

[4] The outstanding issues before the court for trial were:

(a) Imputation of income to both parties;
(b) Child support and section 7 expenses, both ongoing and retroactive;
(c) The wife’s claim for spousal support, both ongoing and retroactive;
(d) Equalization of property, which involves both parties’ claim for unequal division and disputes regarding notional taxes and costs of disposition;
(e) Occupation rent and post-separation adjustments;
(f) Responsibility for the costs of the joint income valuation report.

Evidence and Trial Process

[5] During the trial this court provided some support to the self-represented husband in line with the Canadian Judicial Council Statement of Principles on Self-represented Litigants and Accused Persons (Ottawa: 2006). For example, on occasion the husband would put facts to the wife while he was cross-examining her and her witness. The court reminded him that he also was required to testify to these facts in his evidence in chief to provide evidence as to his version of events. Further, when he was giving evidence regarding his business financials, the court reminded him that just pointing to an entry on a ledger was not evidence as to what the entry represented and whether it was an appropriate deduction from income. Despite this court’s comments, the husband often failed to follow the court’s suggestion.

[6] At trial, the wife testified, and she called her mother as a witness. The husband’s only witness was himself. The jointly retained chartered business valuator, Ron Martindale, also testified in relation to his report on the valuation of the husband’s income.

[7] The court has considered all evidence tendered in this proceeding; however, in this decision the court only refers to that which is necessary to decide the legal issues before it and provide context of the decision-making process and conclusions reached.

1. Date of Separation

[8] Prior to determining the equalization of net family property, the court must determine the valuation date. The operative legislation for this matter is s. 4(1) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), which defines the valuation date for equalization purposes to be the date on which the spouses separate and there is no reasonable prospect that they will resume cohabitation.

[9] In Tsarynny v. Topchiy , 2023 ONSC 6157 , at para. 11 , aff’d 2025 ONCA 175 , Sugunasiri J. outlined the factors to be considered in determining the date of separation as follows:

[11] This takes me to the dispute over the date of separation as that word is understood in family law. The date of separation is significant because it provides the valuation date required for equalization purposes and the date after which child and/or spousal support would be due. Section 4 of the FLA defines the “valuation date” for equalization purposes as the date the spouses separate and there is no reasonable prospect that they will resume cohabitation. The separation date may be established when there is an unequivocal act by the separating spouse indicating that he or she wishes to separate without possibility of reconciliation: O’Brien v. O’Brien , 2013 ONSC 5750 , at para. 52 . The issue is whether a reasonable person, knowing all the circumstances, would believe that the parties had a prospect of resuming cohabitation. A determination of a reasonable prospect of the resumption of cohabitation, or reconciliation, is based on the intention of the parties. The true intention of the parties requires a consideration of objective factors and may differ from stated intentions: Warren v. Warren , 2019 ONSC 1751 , at para. 6 . The factors include:

(a) Physical separation, including occupying separate bedrooms, maintaining separate residences and reasons for maintaining separate residences;
(b) Withdrawing from the matrimonial obligation with the intent of destroying the matrimonial consortium;
(c) Presence or absence of sexual intimacy, although acts of intercourse do not necessarily imply periods of cohabitation with reconciliation as their purpose;
(d) Communication between the spouses and discussion of family problems as well as planning for the future;
(e) Presence of absence of joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together;
(f) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties;
(g) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.) and the sharing of assets. This includes a consideration of whether steps were taken to separate the parties’ assets, the continued use of a joint safety deposit box, joint credit cards and bank accounts, spousal RRSP contributions, use of shared vehicles, and making plans for his or her assets as a separated person;
(h) How the parties referred to themselves in documents, including income tax returns, and to friends and families;
(i) Steps taken towards the legal termination of their relationship;
(j) Meal patterns, including eating meals together and performance of household tasks, including washing clothes, cleaning, and shopping; and
(k) Efforts to resume cohabitation (mediation, counselling, property purchase or lease, “meaningful discussions…as to if, how or when their marriage might be put back together”): O’Brien , at paras. 54, 61 ; Warren , at para. 7 .

[10] The wife testified that she saw a lawyer in September 2020 with a view to start the legal process of separation. At the time the parties had been sleeping in separate areas of the home for approximately one year, and she determined in September 2020 that there was no prospect of moving forward in the relationship. A letter was sent to the husband from counsel Terrah Smith, dated October 19, 2020, which advised that the wife had retained Ms. Smith to represent her. Although this letter purports that the parties had previously discussed separation, the wife did not provide evidence of those discussions.

[11] In cross examination the husband advised that he had never received the letter dated October 19, 2020. He did receive a letter dated December 4, 2020, and that is the date he relies on as the valuation date. The wife did not provide evidence regarding the December 4, 2020 letter, nor was it entered into evidence.

[12] The husband offered messages between the parties from September 2020 through to November 2020 when they were discussing the purchase of a car for the wife. The husband maintains that this is proof that the parties were not separated, otherwise they would not be jointly discussing a vehicle purchase. The wife maintains that the husband was more knowledgeable about cars and because of this knowledge, she was merely looking to him for advice regarding reliable vehicles for her to purchase.

[13] These messages from September 2020 to November 2020 also show that there was some communication between the parties as to when each would be home, or about the children’s activities. This is reasonable given that they were continuing to reside in the same home and co- parenting. It is not evidence that the parties had not yet separated, or that there was prospect of reconciliation.

[14] Neither party provided evidence relevant to whether the parties dined together, were in the community together, or passed celebrations together.

[15] The wife also spoke of conflict between the parties, which resulted in the husband yelling, throwing things, and on one occasion, taking her car keys away for three days as punishment. This was not disputed by the husband in his evidence nor challenged in cross examination. I find the wife to be credible in her description of the husband’s anger, its effect on her and how she behaved around him, and her view that she needed to be cautious in raising concerns to the husband as a result. This would include asking whether he had received the October 19, 2020, letter or otherwise discussing separation between themselves as opposed to communicating about separation through counsel.

[16] I find that the wife’s true intentions to separate materialized in September 2020 when she consulted with a lawyer. The fact that the lawyer’s letter dated October 19, 2020, was not received does not alter the wife’s mindset that the relationship had come to an end. The fact that the wife sought advice from the husband on the purchase of the vehicle is not indicia that the parties remained in the marriage relationship. Therefore, this court finds that the parties’ date of separation was September 7, 2020.

2. PROPERTY AND RELATED ISSUES

[17] Each party seeks unequal division of their net family properties pursuant to the FLA .

[18] The wife seeks occupation rent from the husband for the period from July 5, 2022, when she left the matrimonial home, until the date of closing on May 25, 2023.

[19] The husband seeks reimbursement for carrying costs of the matrimonial home since the date of separation.

[20] The wife seeks reimbursement for the cost of the joint income valuation report and the cost of the expert’s attendance at court.

Equalization

[21] The parties seek unequal division of their net family property. The first step is to determine each party’s net family property.

[22] The parties agree on values to be attributed to all but four items as discussed below.

Did the wife fail to include two investment accounts?

[23] The wife solely held two investment accounts that were closed on December 31, 2011. The wife testified that these accounts were closed during the marriage and her sworn financial statements did not include them as assets. The husband did not provide any independent evidence to suggest that the accounts were still active.

[24] The wife was never impeached during cross examination. I found her evidence to be forthright. She did not appear to be painting herself in a better light than reality, and, perhaps more importantly, did not appear to be painting the husband in a worse light than reality. There is nothing to suggest to this court that her evidence is not credible and trustworthy. I find that the wife has properly disclosed her assets.

Can the husband deduct costs of disposition of his Thunder Bay rental property?

[25] On May 7, 2019, the husband purchased a home in Thunder Bay which he holds jointly with his mother (the “Thunder Bay property”). This property has been rented to tenants since its purchase in 2019.

[26] The husband seeks to deduct costs of disposition amounting to $19,600 from his net family property as follows: real estate commission at 4%, legal fees estimated to be $2,000, and capital gains of 20%.

[27] The Ontario Court of Appeal considered this issue in Bortnikov v. Rakitova , 2016 ONCA, 427. At para. 11, the Court of Appeal summarizes the law:

[11] As a general rule, in determining whether disposition costs should be deducted from an asset’s value, the analysis should take into account evidence of the probable timing of the asset’s disposition. It is appropriate to deduct disposition costs from net family property “if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them”: Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), at pp. 216-17. An allowance for disposition costs from net family property should not be made in the case “where it is not clear when, if ever, a sale or transfer of property will be made”: McPherson v. McPherson (1988), 63 O.R. (2d) 641 (C.A.), at p. 647. However, it is not necessary for the court to determine whether the disposition of the assets is inevitable; rather, the court should determine on the basis of the evidence whether it is more likely than not that the assets would be sold, at which point disposition costs would inevitably be incurred: Buttar v. Buttar , 2013 ONCA 517 , at para. 20 .

[28] The Court of Appeal in Bortnikov went on to find at para. 13 that “there was no clear and satisfactory evidence that the respondent was contemplating the possible sale of the motel property or her shares of the numbered company in the foreseeable future.” The deduction of costs of disposition was not allowed.

[29] In his evidence in chief, the husband did not mention the Thunder Bay property. He did not discuss the basis for his calculated costs of disposition in his evidence or in his closing submissions. He left it impossible for the court to determine whether his proposed rates of commission, legal fees, or capital gains are reasonable estimations of future, unrealized costs.

[30] During cross examination of the husband, it was established that the Thunder Bay property was not currently listed for sale and there had not been any notice given to the tenants that they needed to vacate the property. The husband advised that his mother, with whom he held the property jointly, was going through surgery, and the property was “a lot” to take care of. He did not, however, give any evidence of any actual discussions or concrete plans to sell the property. He did not speak of this issue in his re-examination.

[31] Given that the husband provided no clear evidence that the Thunder Bay property is going to be sold in the foreseeable future, this court does not accept that there should be a reduction in the husband’s net family property for costs of disposition of the Thunder Bay property.

Should notional tax be deducted from the value of the husband’s RRSPs?

[32] The husband seeks that the value of his RRSPs at separation be reduced by 20% notional tax.

[33] The Court of Appeal in Sengmeuller v. Sengmueller , 17 O.R. (2d) 208 , at p. 218 noted that RRSPs are “taxable in full, regardless of the time of realization and regardless of whether they are cashed in full or taken by way of annuity.”

[34] In M.A. v. J. M., 2023 ONSC 6876 , at para. 131 , MacPherson J. held that it is now generally accepted that RRSP funds, like pensions, will be reduced by a reasonable amount to account for the income tax ultimately payable when brought into income.

[35] The husband gave no evidence relating to the calculation of notional tax other than stating that he determined his suggestion of 20% was the appropriate rate. There is no evidence regarding when he might retire, what his income might be at retirement, what the marginal tax rate would be on that retirement income, or what the present value is of that future discount.

[36] As in this case, the parties in M.A. did not produce evidence supporting the proposed percentage deduction to their RRSPs. Justice MacPherson commented as follows at paras. 133- 135:

[133] The court in Virc v. Blair , [2016 ONSC 49] stated:

Courts have adopted various approaches to deal with the lack of evidence in these cases. In some cases, the Court will allow a deduction in the absence of any evidence and will simply insert a percentage without further discussion. In other cases, a deduction may be allowed but at a reduced rate. However, in some cases the Court disallows the deduction altogether due to lack of evidence. Courts have considered hindsight evidence of post-separation tax rates and actual costs of disposition incurred when RRSPs were sold after separation but before trial.

[134] In Hawkins v. Huige , [ (2007) , O.J. No. 4894 (Ont. S.C.) ] the wife proposed the tax rate of 30% be used for both parties' RRSPs. Justice Czutrin concluded that while 30% “may appear reasonable, it does not take into account future contingencies and the present values given the age of the parties.” Disappointed that neither party had provided reliable evidence as to likely disposition dates and the present value of any possible future disposition, Justice Czutrin decided to allow a 23% notional tax reduction on all potentially taxable assets, being half the current top marginal rate of 46%. Justice Czutrin expressed: “Absent reliable evidence and following case law, I find this is the fairest way to deal with this issue for both parties” (para. 112).

[135] In Ali v. Williams , [ (2008) O.J. No. 1207 (Ont. S.C.) ] Justice van Rensburg allowed disposition costs on both parties' RRSPs, as a result of the Court of Appeal's decision in Sengmueller v. Sengmueller , noting: “Costs of disposition should be calculated in particular with respect to RRSPs which will be subject to tax whether they are cashed in or received subsequently as an annuity” (at para. 102). Justice van Rensburg used the tax rate of 25% for both parties.

[37] The court follows the general rule that notional tax costs of RRSPs should be deducted, and, upon review of the jurisprudence, I find that the rate of 20% proposed by the husband is appropriate.

Can the husband claim a debt relating to tax arrears owing?

[38] The husband seeks to include a debt regarding tax arrears in his net family property. The amount he claims is $6,334.45.

[39] The husband testified that in 2022, he was reassessed by the Canada Revenue Agency (the “CRA”), and it was determined that he had not paid HST on his real estate transactions. The letter from the CRA dated August 31, 2022 has a subject line that reads “GST/HST arrears – 2016, 2018 to 2020”. The letter confirms that the CRA’s records indicated that the husband “still owe[d]

$6,334.45, even though [they] previously drew this debt to [his] attention.” The letter does not provide any calculations and does not break down the arrears by year owed and interest owing. In his financial statement sworn March 9, 2023, the husband includes a different sum for the amount of arrears owing, namely $7,200. The husband did not provide any further evidence on the calculation of tax arrears.

[40] From the evidence provided, the court has no ability to understand how much was owed on the date of separation in September 2020. For example, what amount of that sum is attributable from the date of separation to December 31, 2020, and what amount of that sum is interest accrued past the date of separation.

[41] Further, the court has no evidence as to when the re-assessment took place. It appears that it took place after the date of separation. In Cosentino v. Cosentino, 2015 ONSC 271 , 55 R.F.L. (7th) 117 , the court held that the husband’s tax liability resulting from a tax re-assessment cannot be deducted from his net family property, stating at para. 38:

[38] It would be stretching the meaning of “liability” to include an obligation that arose later, merely because it was calculated in relation to a year when the parties were still living together. Not only had the reassessment not come into existence at the valuation date, but also there was no suggestion that it was coming. Taking a financial snapshot of the husband on that date, no one would have suggested he was subject to any contingent liability for income tax.

[42] The husband has not established the value of the debt at the date of separation, nor has he established when the re-assessment occurred, and therefore it will not be included in his net family property.

[43] Based on the above findings, the equalization payment owing by the husband to the wife is $101,185.36. A Net Family Property Statement is attached as Appendix A.

Unequal Division of Property

[44] Both parties seek unequal division of property.

[45] Section 5(6) of the FLA reads as follows:

(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.

[46] Notably, it is not a determination of whether the behaviour of a spouse is unconscionable, it is whether equalizing net family properties would be unconscionable. The Ontario Court of Appeal discussed this threshold in Serra v. Serra , 2009 ONCA 105 , 93 O.R. (3d) 161 at para. 47 :

[47] In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court.” [Citations omitted.]

[47] In his Amended Answer, the husband claims unequal division of property due to the wife’s improper use of joint funds during the marriage. The husband led no evidence of such improper use and did not cross examine the wife in relation to the facts as plead in his Answer. As a result, his claim fails.

[48] The wife seeks unequal division of property because the husband purchased the Thunder Bay property by withdrawing approximately $100,000 from the parties’ joint line of credit without

her consent. The wife testified that it was normal for the husband to make financial decisions without consulting her. She testified that she did not learn of the plan to purchase until the date of closing of the Thunder Bay property. The husband testified that he did have discussions with the wife about the purchase of the property.

[49] The wife relies upon Von Czieslik v. Ayuso 2007 ONCA 305 , 86 O.R. (3d) 88 in support of her claim for unequal division. However, the facts in Von Czieslik differ substantially from this case. In Von Czieslik , the husband no longer had the asset in question at the date of separation, he did not obtain any funds from the proceeds of sale, yet a non-arm’s length corporation earned

$190,000 from the sale. Here, the asset in question is included in the husband’s net family property and subject to equalization.

[50] This court cannot find that equalization would be unconscionable. The asset in question remains in the husband’s net family property and the wife will share in any increase in value from date of purchase to date of separation.

[51] There shall be no unequal division of property.

Occupation Rent and Post Separation Adjustments

[52] The wife claims occupation rent in her Amended Application dated January 24, 2023. In his Amended Answer, dated February 28, 2023, the husband pleads as follows “in the event that occupation rent is awarded to the Applicant, the Respondent seeks a corresponding credit or set- off for the Applicant’s share of household expenses paid by him following separation.”

[53] The Ontario Court of Appeal in Non Chhom v. Green, 2023 ONCA 692 held that an order for occupation rent need not be exceptional. Factors to be considered are the timing of the claim for occupation rent, the duration of the occupancy, the inability of the non-resident spouse to realize on their equity in the property, any reasonable credits to be set off against occupation rent, and any other competing claims in the litigation: see Non Chhom , at para. 9 .

[54] The wife’s original Application was issued on July 21, 2021. In her Application, the wife sought an order for the sale of the matrimonial home. The sale of the matrimonial home was also discussed in a case conference held on August 19, 2021.

[55] There was no progress. The wife and children left the matrimonial home in July 2022. Around the same time, the wife brought a motion for the sale of the home. It is from this date that the wife seeks occupation rent.

[56] The wife had sought sale of the home since her original application in 2021. She had to bring two motions before the house was listed for sale. However, once she left the home (the date from which she seeks occupation rent), the husband continued to pay the mortgage ($1,777.50 monthly), insurance ($70 monthly), and taxes ($300 monthly) for the home without contribution from the wife. The parties agreed that the rent that could have been earned on the home was between $2,200 and $2,400 monthly. The amounts are essentially identical.

[57] No occupation rent is ordered. The husband only sought post separation adjustments in the event occupation rent was ordered, so this court need not consider that issue.

Cost of CBV report

[58] On October 3, 2023, following a contested motion, Madsen J. ordered the parties to jointly retain a qualified chartered business valuator to provide a calculation of the husband’s income for 2021-2023. The report was not to exceed $5,000 without further agreement of the parties or a further court order. The order also states, “the final apportionment of the calculation costs shall be determined by the trial judge or by written agreement between the parties.”

[59] The parties engaged Ron Martindale Jr., C.P.A., C.A., L.P.A., C.B.V., C.F.F. The parties were advised by Mr. Martindale, prior to signing the engagement letter, that there could be additional fees for forensic work relating to personal expenses, and for additional communication relating to sharing information.

[60] A forensic accounting ultimately occurred. The husband did not agree to the increased expense, however, and, despite the order of Madsen J., the wife did not attend court to obtain a court order for the increased expense.

[61] The husband argues that the wife’s counsel “insisted” on the forensic audit of his business, he did not agree to it nor was an order for it obtained.

[62] This court finds that the husband shall be responsible for the entire cost of the report and Mr. Martindale’s attendance at court for the following reasons:

(a) In family law, an income earner has the burden of establishing his income, and given the husband’s self-employment, the income report was necessary to establish the husband’s income.
(b) It was clear in the letter of engagement that there may be increased expenses of the report.
(c) The history is that the husband’s financial disclosure has been consistently inadequate, and he did not disclose all sources of income in his financial statements. In this context it was not unreasonable to seek a forensic audit.
(d) At trial the husband continued to challenge the imputation of income to him, and did not accept the report of Mr. Martindale, thus requiring him to be called as a witness.
(e) As will be discussed below, this court has ultimately found that the husband deducted expenses from his business income that were more properly characterized as personal expenses and has imputed income to him.

3. IMPUTATION OF INCOME

Legislation

[63] The Federal Child Support Guidelines , SOR/97-175 (the “ FCSGs ”) provide for situations in which income may be imputed to a party.

[64] Chapter 6 of the Spousal Support Advisory Guidelines: The Revised Users Guide (April 2016) (“ SSAGs ”) provides that the starting point for determination of income under the SSAGs is the definition of income under the FCSGs .

Imputation of Income to the Wife

[65] The husband position’s is that the that the wife worked part time and could earn more income. He seeks an order imputing income to her in the amount of $56,160.00. The husband did not advise the court as to how he arrived at that number.

[66] Section 19(1) (a) of the FCSGs permits a court to impute income to a spouse if the spouse is intentionally under-employed, other than where the under-employment or unemployment is required by the needs of a child of the marriage, or by the reasonable educational or health needs of the spouse.

[67] In Kholi v. Thom , 2025 ONCA 200 the Court of Appeal provided the following comment on imputation of income based on intentional under/un-employment at para. 124: (cites omitted):

[124] Intentional unemployment is particularly complex. The court need not be satisfied that a payor spouse has acted in bad faith before it imposes a support order based on imputed income. Rather, the court must consider whether the parent’s decisions around work choices are reasonable. [Citations omitted.]

[68] The wife is a veterinary technician and has been for most of the marriage. She testified that since 2021 when she began with her current employer, she has worked anywhere from 32-37 hours a week earning $24-$26 per hour. She does not get paid for the one-hour lunch break. Her 2023 total income was $47,762. On average, she works between eight to nine hours a day, 5 days a week. She agreed on cross examination that she could work one extra hour, two days a week. This court finds that she is employed full-time given these hours.

[69] The wife testified that she, from time to time during the marriage, would run home-based businesses: a dog walking business, a cat sitting business, a dog biscuit business, and a multilevel marketing tea business. These did not generate much income, perhaps $500-$1,000 annually.

[70] The husband cross examined the wife on her personal bank account statement, noting deposits made that were not payroll deposits from her work. The wife testified, and I accept, that these transfers were from her savings account and line of credit, to pay for expenses. The husband did not offer any evidence to suggest that the wife has any income which she has not disclosed.

[71] There is no evidence that the wife is underemployed, or that she has a source of income that is not reported. The court does not impute income to the wife. Support shall be determined using her employment income as noted on her Income Tax Returns and Notices of Assessment.

Imputation of Income to the Husband

[72] The husband is an IT manager at Virtual Causeway Inc. He has been an IT manager in sales and marketing since 2007. He has been a real estate agent since 2016. He also earns income from the Thunder Bay property.

[73] The wife seeks to impute income to the husband on the basis that his real estate corporation historically had retained earnings, there are business expense deductions that should be included in his income, and he is currently underemployed because he is not actively engaging in his real estate business.

[74] Mr. Martindale’s report (“the income report”) was entered into evidence, and both parties examined him. His qualifications were not disputed.

[75] The income report noted that the husband’s primary source of income is employment income from Virtual Causeway Inc., that he earned rental property income from a property in Thunder Bay owned jointly with his mother and was a licensed real estate agent. The husband operates his real estate business through a Personal Real Estate Corporation (“the PREC”), incorporated on January 21, 2021. The husband holds 100% of the ownership interest of the PREC.

[76] Section 18 of the FCSGs provides as follows:

18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include

(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

[77] Section 19(1)(g) of the FCSGs allows the court to impute income if a spouse unreasonably deducts expenses from income.

[78] Mr. Martindale conducted an analysis of the funds available to be withdrawn by the corporation (which the husband solely owns), of the business expenses used to reduce pre-tax business income, of the rental property income and related deductions.

[79] The assumptions in the income report were not challenged by the wife, and the husband was unsuccessful in establishing during his cross examination of Mr. Martindale that the assumptions were not appropriate. Mr. Martindale has been in valuation advisory services for almost 30 years. He has been qualified as an expert in several courts. He signed the Acknowledgement of Expert’s Duty that requires him to provide opinion evidence that is fair, objective, non-partisan and within his area of expertise. There is no evidence that he acted contrary to this duty. This court finds that Mr. Martindale, in his considerable expertise, applied assumptions that were in accordance with industry standards and the FCSGs and provided a fair and accurate valuation of the husband’s income.

[80] Mr. Martindale conducted a forensic analysis of the expenses of the PREC and the Thunder Bay property. There were only a few accounting discrepancies which did not amount to significant sums and were likely due to error. Mr. Martindale testified that the husband did provide corresponding receipts together with banking and credit card information for all the deductions, but the receipts did not have any notes regarding which property or which client the expense pertained to.

[81] Mr. Martindale did not, however, make any determination as to whether the business expenses claimed were legitimate business expenses.

[82] At trial, the husband’s credibility was undermined when questioned on the various financial statements he swore for the litigation. As outlined below, they all had inconsistencies.

(a) Financial statement sworn August 17, 2021:

• The husband did not disclose any income from the Thunder Bay property or real estate business;
• he listed rental property insurance as $55 monthly but at trial claimed he paid $160-180 monthly; and
• he did not list any banking accounts (such as RRSPs) other than a savings account.

(b) Financial statement sworn September 24, 2021:

• The husband did not include any income from the Thunder Bay property or real estate business;
• other bank investments accounts are listed, but do not include notional tax on disposition;
• he includes tax arrears as a debt that were not claimed prior; and
• he did not seek a reduction in value of Thunder Bay property to account for costs of disposition.

(c) Financial statement sworn March 9, 2023:

• The husband did not include any income from the Thunder Bay property or real estate business; and
• He did not include any reduction in value of the rental property for costs of disposition.

(d) Financial statement sworn November 9, 2023:

• The husband disclosed his self-employment through the real estate business but did not declare any income from the real estate business;
• he did not include any income from the Thunder Bay property; and
• he did not include any reduction in value of the rental property for costs of disposition.

[83] The husband was also cross examined on a chart that he produced to set out the matrimonial home expenses for which he sought post separation adjustments for. It was quickly established that he included insurance for his truck and Thunder Bay property in this chart. He also included utility bills paid after the wife left the home, and then later agreed that she was not responsible for those bills.

[84] The husband characterized all the missing information identified in paras. 82 and 83 as “oversights”. This court cannot accept that. The financial statements are sworn documents; the

chart presented at trial is a document that the husband wished the court to accept as evidence during his sworn evidence in chief. There should be utmost caution given by parties when producing sworn evidence to be used in litigation. These omissions were more than a typographical error, or failure to include a small amount of income or expense.

[85] When assessing the husband’s credibility, particularly as it pertains to his income and expenses, this court takes into consideration the pattern of misinformation provided by the husband over the course of the litigation, including during trial.

[86] At trial, the husband did not establish that all his business expenses are legitimate business expenses and not personal expenses. The husband does his own bookkeeping. For many of the business expenses, the husband offered as evidence only the sheets from the accounting software he used for bookkeeping, and the banking statements of his business account. There was no specificity in the entries. For example, in the advertising and promotion transaction ledger for 2022, expenses are noted in general terms such as “gifts” or “Costco” or “Walmart”. In the meals and entertainment transaction ledger for 2022, expenses are marked only with the name of the restaurant. Oftentimes the charge appears to be an amount that could only reasonably be expected to cover one meal. The husband merely repeated that it is his evidence that they are legitimate business expenses. The husband did testify about some specific expenses, such as a golf tournament, a cleaning expense for a house sale, and his car expense (which he stated during the valuation process was 20% personal).

[87] An income earner bears the burden of establishing the quantum of his income. The husband therefore bears the burden to first establish that he incurred the business expense, and second, that the deduction is legitimate. He has not done so. However, it is reasonable for this court to assume that some of the expenses are legitimate as it would not be possible for a business to be run without expenses. Therefore, this court finds that 50% of the husband’s business expenses are legitimate.

[88] Mr. Martindale was asked to conduct an income valuation in three scenarios for the business expenses; one in which 100% are legitimate, one in which 50% are legitimate, and one in which none are legitimate.

[89] Turning to the income report, the husband’s income for support purposes if 50% of business expenses are included in income is as follows:

2021: $90,103

2022: $130,869

2023: $93,807

[90] The court must then turn its mind to whether income should also be imputed to the husband pursuant to s. 19(1) (a) of the FCSGs .

[91] The income from the husband’s real estate business has declined significantly since 2022. In 2022 the commission income for the PREC was $61,383.91, and in 2023 the commission income was $950.

[92] The wife submits the husband intentionally stepped back from his real estate profession to reduce his income available for support purposes. She submits that it was in 2023 that she started actively pursuing disclosure, income valuation, and challenging the business expenses, and the significant decline in the husband’s income from the real estate business followed thereafter.

[93] The husband denies that he stopped his real estate business for ulterior motives. He says the real estate market was not as active but provided no evidence of this. He also claimed that he has focused more in the “investment market” which he described as “soft” but also provided no evidence. This court is unable to take judicial notice of the state of the real estate market in any particular period as these facts are not so notorious or generally accepted as to not be the subject of debate among reasonable persons, nor are they capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: see R. v. Spence 2005 SCC 71 , [2005] 3 S.C.R. 458 . This court will, however, take judicial notice of the fact that the real estate market fluctuates.

[94] The husband further claims that he is unable to dedicate as much time to the real estate business because he has the children in his care half of the time, and prior to separation, he relied upon the wife to provide care while he tended to his business. However, he also testified that he

has turned his attention toward an apiary business, which is not earning an income now, but he hopes that it will be more lucrative than his real estate business.

[95] The husband provided no evidence about his apiary business. He mentioned it in passing in his re-examination after he was cross examined about the decline in the income earned from the real estate practice. There was no financial information offered and there was nothing to support his statement that he hopes to turn it into a “lucrative” business. He did not even allude to this business in his evidence in chief.

[96] In assessing whether an individual is intentionally unemployed, a court need not find that the underemployment is a result of bad faith: see Drygala v. Pauli , (2002) , 61 O.R. (3d) 711 (C.A.) , at para. 29 . Further, in also applying Kholi , this court finds that it is unreasonable for a support payor to stop a line of work that produces income, in favour of a venture which does not generate an income and there is no evidence that it will do so in the future. The husband should be turning his attention back to his real estate practice. The court will impute income to the husband pursuant to s. 19(1) (a) of the FCSGs for the years 2023 and ongoing.

[97] The wife seeks an order imputing an annual income to the husband of $102,974, based upon Mr. Martindale’s assessment of the husband’s 2023 income with 100% of the business expenses added to his income. This court has already established that the reasonable income valuation is to add in 50% of the expenses. The valuation of the husband’s 2023 income for that scenario is $93,807.

[98] However, the $93,807 value is also not an appropriate number, because in 2023 the husband had turned his efforts toward his bee keeping business and away from his real estate business and had less time available for his real estate practice due to increased childcare responsibilities. Balancing these two factors, considering the income that the husband was able to generate in his real estate practice in 2022, and taking notice of the fluctuation of the real estate market over time, the court finds that an appropriate annual income to impute to the husband for 2023 and ongoing is $103,000.

[99] Mr. Martindale was not tasked with assessing 2020 income. Neither party made submissions regarding the husband’s 2020 income. In closing submissions, counsel for the wife

used DivorceMate calculations for demonstrative purposes, including for 2020. In those submissions, the husband’s 2020 income was proposed to be $76,141 which is his line 15000 income for that year. In the absence of evidence to the contrary, the court uses this income.

Summary of Incomes

[100] In summary, this court finds the husband’s income to be as follows: 2020: $76,141

2021: $90,103

2022: $130,869

2023 and ongoing: $103,000

[101] In summary, this court finds the wife’s income to be as follows: 2020: $36,542

2021: $38,522

2022: $44,283

2023 and ongoing: $47,762

4. CHILD SUPPORT AND SECTION 7 – ONGOING AND RETROACTIVE

Child support

[102] The parties have equal shared parenting time of the two children pursuant to the consent final order of Piccoli J. dated December 23, 2022. Section 9 of the FCSGs applies:

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[103] In each of their draft orders, the parties seek an order for child support based strictly on set-off. The default child support payable in families with shared parenting is not just a calculation of the difference between what each parent pays under the tables in the FCSGs . This may be a good starting point and may be the only appropriate approach when the parties give little evidence relevant to the s.9 analysis and the incomes of the parties are not widely different. However, this strict set-off approach should not be the default: see Contino v. Leonelli-Contino , 2005 SCC 63 , [2005] 3 S.C.R. 217 .

[104] There was minimal evidence led by either party in relation to the s.9 Contino analysis. The wife resides in a basement apartment with the children while the husband resides in a detached bungalow. She earns less income than him. Neither party provided evidence of additional day-to- day child-related expenses that one incurs which the other does not.

[105] This court will use the set-off approach due to the lack of evidence to suggest something other than set-off is appropriate, and due to each party proposing a set-off approach.

[106] The original Application issued on July 21, 2021, sought child support and s. 7 expenses. It is appropriate therefore to make the child support orders retroactive to July 2022 when the wife left the matrimonial home. This requires a retroactive readjustment because although the husband has paid child support in accordance with the interim order of November 18, 2022, it is less than what is ordered by this court upon imputing income.

Section 7 expenses – retroactive

[107] The wife seeks an order finding that there the husband owes section 7 expenses for the children retroactively as husband has not contributed any sums toward the extracurricular activities of the children since the parties separated.

[108] The FCSGs provide as follows:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into

account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.

[109] Given the children’s ages, summer camps would be required as childcare and are therefore appropriate s.7 expenses to share.

[110] In addition to childcare and summer camps, the wife seeks re-imbursement for a number of extracurricular activities of the children:

• Horseback riding for Sierra at a number of different facilities
• Gymnastics for both children
• Tumbling for both children
• Girl Guides/Scouts for both children
• Soccer for Henrik
• Acting for Sierra

[111] While some of these activities may not appear to be an “extraordinary” expense, it is appropriate to include them in the s.7 analysis. The parties share parenting time, the day-to-day extra expenses for the children such as school events, regular recreational extracurricular activities etc. were not accounted for in the Contino analysis when setting child support. By including them in the s.7 shared expenses analysis, both parties share in that expense as opposed to the registering parent having to cover the whole expense.

[112] The wife testified that the children participated in these activities prior to the separation, and she continued to register them after the parties separated. She did not seek the consent of the husband to continue to register them in these activities post separation. There is no evidence that the husband voiced his objection to the children continuing in these activities following the parties’ separation in September 2020 or following July 2022 when the wife left the home. The husband did not give any evidence in chief regarding the wife’s s. 7 claim and on cross examination agreed that the wife paid the amounts she claimed she did for these expenses.

[113] Further, the parties turned their minds to s. 7 expenses in 2022, resulting in a consent interim order based upon interim minutes of settlement. Both parties were represented by counsel at this time. The order, dated November 18, 2022, provides that “the children’s section 7 expenses shall be shared on a 65% (Respondent)/ 35% (Applicant) basis.” The order does not specify that consent is required. The husband had the opportunity during the negotiations to indicate that his consent was required, or to articulate in that order which expenses qualified as s. 7 expenses. Given the lack of objection or clarification, and the wording of the order dated it was not unreasonable for the wife to presume the activities in which the children were enrolled at the time of separation and the time of the November 18, 2022, order could continue.

[114] While the wife presented a table at trial tallying the expenses, it was acknowledged in closing submissions that some items were not being claimed. The revised total for s. 7 expenses incurred by the wife from the date of separation was submitted to be $22,169. The court notes that the wife’s chart also included a $500 expense for gymnastics that was incurred before separation. I have reduced the total therefore to $21,669. The wife’s draft order is based on a 65/35 split as in

the temporary consent order dated November 18, 2022, and I will therefore apply the same ratio. This results in the husband owing arrears of $14,085.

Section 7 expenses - ongoing

[115] The parties shall share ongoing s. 7 expenses in a manner proportionate to their incomes. Based on their 2023 incomes, the husband is responsible for 68% and the wife for 32%.

5. SPOUSAL SUPPORT

Entitlement to Spousal support

[116] The provisions regarding spousal support are set out in the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) as follows:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall 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 support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time.

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support

order, or a variation order in respect of the spousal support order, as the case may be.

[117] The Supreme Court of Canada in Moge v. Moge , [1992] 3 S.C.R. 813 and Bracklow v. Bracklow , [1999] 1 S.C.R. 420 set out the principles for determining spousal support. In Moge , at para. 48 , L'Heureux-Dube J. held that the goal of a spousal support award is "a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender."

[118] These, together with several other decisions, were reviewed by Chappel J. in McBennett v. Danis , 2021 ONSC 3610 . The following is a summary of the law as articulated by Chappel J., at paras. 337 - 357:

(a) No single objective of a spousal support order takes priority over the other. Judges have discretion to determine the weight of each objective, based on the circumstances of the case.
(b) In considering the objective of relieving economic hardship arising from the relationship breakdown, the court must examine the changes in the economic situations of the parties caused by the separation, taking into account the parties’ current means and needs, and other relevant circumstances.
(c) While there is a goal of promoting economic self-sufficiency, this goal should not be characterized as an absolute duty on a recipient to attain financial independence, and the goal applies “in so far as practicable.”
(d) The “condition” of a spouse as mentioned in s.15.2(4) of the Divorce Act includes factors of age, health, needs, obligations, dependents, and station in life.
(e) A spouse’s “means” is to be given an expansive interpretation and encompasses all financial resources, including the capacity to earn income from a Family Law property judgment.
(f) The “needs” of a spouse must take into consideration the accustomed lifestyle of the spouses during the relationship, subject to the ability of the payor spouse to pay.
(g) While entitlement is to be determined in accordance with the governing legislation, there are three conceptual models upon which entitlement to spousal support may arise:

• Compensatory support, which relates to the first two objectives set out in 15.2(6)(a) and (b) of the Divorce Act ;
• Non-compensatory support, which primarily relates to the third and fourth objectives set out in 15.2(6)(c) and (d) of the Divorce Act ; and
• Contractual support.

(h) The objectives of a compensatory award are to provide some degree of compensation for economic loss or disadvantage experienced by the recipient spouse as a result of the roles adopted during marriage or following separation, or for the economic benefits which the payor spouse derived from the claimant’s contributions, for which the claimant has not been adequately compensated.

(i) The fact that a party continued to work during a relationship does not preclude entitlement to compensatory support, if they assumed a disproportionate share of child care or other home management responsibilities, and their contribution affected the extent of their career advancement, or enabled the other party to pursue their own career and advance financially. This also includes supporting the family while the other party obtained or upgraded their education.

(j) The entitlement to non-compensatory spousal support or “needs based” support is based on the recipient spouse’s economic need alone at the time of separation, even if that need is not connected to any disadvantage arising from the relationship. This need is to be assessed against the standard of living of the parties during the relationship.

(k) Mere disparity in the parties’ incomes and financial circumstances does not in and of itself lead to entitlement to non-compensatory support. The analysis of need must also take into consideration the ability of the recipient spouse to support themselves.

Analysis

[119] The parties started cohabiting August 1, 2002, were married November 17, 2010, and separated on September 7, 2020. It was an 18-year relationship. At separation the wife was 43 years old and the husband 46.

[120] It is acknowledged that the wife was employed full time for the duration of the parties’ relationship, other than for a period of time during COVID when she stayed home with the children, a few months while she was between jobs, and maternity leaves.

[121] However, her earning capacity has only slightly increased over the course of the relationship. There may be an ability for her to increase her earning over time. The court is not aware of any health issues. She has an extra certification in animal acupuncture, although there is no evidence she is able to earn extra income from that certification. Additionally, she continues to be responsible for the children 50% of the time which limits her ability to work extra hours.

[122] The wife testified that she did most of the household chores and childcare during the marriage, while the husband was often occupied with his cycling or gaming hobbies. This evidence was not challenged on cross examination of the wife nor did the husband testify regarding any alternate scenario. In fact, he admitted most of this when cross-examined. There is also evidence that the wife is currently the parent most responsible for managing the children’s schedule despite the shared parenting arrangements.

[123] The wife also managed the household while the husband studied in his free time to obtain his real estate license and when he conducted his real estate business. While the husband testified that he studied on his lunch hours and during work time, it is unlikely that he did not study in the evenings and on weekends. In his own re-examination, the husband stated that he was unable to currently maintain his real estate practice because he had care of the children half the time. This in and of itself indicates that the wife supported the household so that he could earn his real estate license and thereafter pursue that profession.

[124] The post separation economic realities of the wife and husband are different. The wife resides in a basement apartment. She has had to rely on family for financial support after separation. She has had to use lines of credit to fund her expenses which are not unreasonable. The husband lives in a detached bungalow which he owns. I am not aware of the value of that home, given that he does not disclose it in his most recent financial statement which is sworn November 9, 2023.

[125] The wife has demonstrated that there has been an economic consequence to her as a result of the marriage breakdown. She is entitled to spousal support on both a compensatory and non- compensatory basis.

Date for Spousal Support to Commence

[126] Retroactive spousal support is discretionary and should not be ordered where it causes hardship: see Bremer v. Bremer , (2005) , 13 R.F.L. (6th) 89 (Ont. C.A.) .

[127] In Diamond v. Berman , 2020 ONSC 1566 aff’d 2021 ONCA 653 , the court did not award support during a period when the spouses were living separate in the same home. This was because the evidence, while not entirely clear, suggested an intertwining of finances and it was not until the house closing that the parties were clearly financially separated and the need for spousal support crystallized.

[128] This court specifically asked about the wife’s claim for retroactive spousal support during the period where the parties continued to reside in the same home. In closing, counsel only commented that entitlement did not change with her residing in the home because she was still doing all the housework and the husband was still pursuing his career. This, however, only addresses the compensatory factor. Analysis of the other factors at the time must also be conducted.

[129] There was very little evidence offered as to the financial arrangements of the parties during the period when they were separated in the same home. When they purchased the matrimonial home, they agreed the husband would pay the mortgage and insurance and the wife would pay the hydro, gas, and groceries. This appears to have continued post separation until the wife moved out. The post separation messages between the husband and wife regarding the wife’s vehicle purchase also suggest that the parties were jointly discussing financial issues after separation.

[130] The evidence at trial suggests that the finances remained “intertwined” until the wife left the home. As such, the spousal support order shall commence on August 1, 2022, the first of the month following the wife’s departure from the matrimonial home.

Quantum and Duration

[131] These issues must also be determined in accordance with the objectives and factors listed in the Divorce Act . The SSAGs provide assistance to the court when determining quantum and duration of spousal support once entitlement is established.

[132] Commencing at para. 358 of McBennett , Chappel J. sets out considerations that are relevant to the SSAGs and to determining the quantum and duration of spousal support. These considerations are summarized below:

(a) The SSAGs are not binding on the court. However, in original applications they are the appropriate starting point for determining quantum and duration. While they should not be departed from lightly, they must be applied keeping in mind the unique circumstances of each case. If the court departs from the SSAGs , reasons must be provided.
(b) The SSAG ranges allow for the court to acknowledge each relationship’s unique circumstances. The mid-range is not the default. The court must still analyze the factors to come to the appropriate quantum and duration.
(c) It is critical to use the correct formula, i.e. the without child support formula and the with child support formula.
(d) The court must determine the appropriate timing for the income determination analysis for the purposes of assessing quantum and duration. The SSAGs suggest that the relevant time for determining incomes of the parties should generally be the date of the hearing. However, also note that relevant factors may be the SSAG formula that applies, the length of time between the time of separation and the hearing, and whether there have been significant changes in income since the separation.

[133] The parties made no submissions on the range of spousal support this court should use nor the timing of income determination. Looking to the wife’s draft order, it appears that she seeks an ongoing order in the mid-range based on the parties 2023 incomes, and a retroactive order based on the parties’ incomes at the time.

[134] Although the wife’s contributions enabled the husband to build his real estate business, the husband testified, and it is accepted, that currently, he has less time to devote to this business. He and the wife share equal parenting time, and the husband no longer has the wife providing childcare to the extent that she did when they were cohabiting. On the other side of the same coin, the wife is now only responsible for childcare half of the time, although this court is mindful that the evidence suggests she remains the manager of the children’s schedules.

[135] The equalization payment that the wife will receive is not particularly substantial and will not greatly impact her day-to-day financial situation.

[136] Given the ages of the children, it is in their interests to ensure that the “with child support” spousal support award results in each household having similar net disposable incomes. This will ensure that the standard of living for the children will not differ substantially between their parents’ homes.

[137] Weighing the above factors, mid-range spousal support is ordered. It acknowledges the wife’s own earning capacity while recognizing her contributions to the husband’s career; it ensures the standard of living in both homes remains the same for the children as each party’s net disposable income at the mid-range is similar.

[138] This is not an appropriate case for a time-limited order. This was a relationship lasting 18 years and the children are young.

[139] Neither party made any submissions regarding the tax implications of a retroactive spousal support order. In Barn v. Dhillon , 2023 ONCA 654 , at paras. 3-4 , the Ontario Court of Appeal held that judges are not required to make tax adjustments for retroactive spousal support awards. However, the husband cannot deduct the retroactive support for tax purposes and the wife will not claim the retroactive support for tax purposes. This court will calculate retroactive support based on the midpoint of the after-tax benefit/cost. The calculations are attached to this decision as Appendix B.

[140] For the year 2022, the midpoint of mid-range of after tax spousal support is $873. Arrears for the period August 1, 2022 to December 31, 2022 are fixed at (5 x $873) $4,365.

[141] For the year 2023, the midpoint of mid-range of after tax spousal support is $360. Arrears from January 1, 2023 to October 31, 2024 are fixed at (22 x $360) $7,920.

[142] Commencing November 1, 2024 and the first of each month thereafter, the husband shall pay to the wife spousal support in the amount of $516.

6. PRE-JUDGMENT INTEREST

[143] The wife makes a claim for prejudgment interest in her application and there is a provision for it in the draft order submitted. Pre-judgment interest is a discretionary order. No submissions were made by either party as to the entitlement to prejudgment interest, nor does the draft order indicate what sums the interest is to be paid on. It is therefore impossible for this court to determine whether it should be ordered or on what sums it is to be paid. This claim is dismissed.

7. DIVORCE

[144] A divorce is granted as the parties separated on September 7, 2020, and there is no reasonable prospect of reconciliation.

8. COSTS

[145] The parties shall have meaningful discussions to resolve the issue of costs. If they are unable to resolve the parties shall each serve and file submissions, in accordance with the Family Law Rules , O. Reg. 114/99, r. 24(19). Submissions shall be filed through the online portal as well as emailed to Kitchener.SCJJA@ontario.ca noting the portal confirmation number. Extensions will not be granted. If submissions are not received, it will be presumed that costs have been resolved.

9. ORDER

[1] The parties shall be divorced.

[2] The husband shall pay the full cost of the chartered business valuator income valuation report completed by Ron Martindale and the full cost of Ron Martindale’s attendance at trial.

[3] The husband shall pay to the Respondent an equalization payment of $101,185.36.

[4] Commencing August 1, 2022 and the first of each month thereafter, pursuant to the Federal Child Support Guidelines, the husband shall pay to the wife child support for the support of Sierra Sundberg born April 5, 2013 and Henrik Sundberg born July 17, 2016 (collectively “the children”), set-off child support in the amount of $1,187 based on the husband’s income of $130,869 ($1,848 child support monthly), and the wife’s income of $44,283 ($661 child support monthly).

[5] Commencing January 1, 2023 and the first of each month thereafter, pursuant to the Federal Child Support Guidelines , the husband shall pay to the wife set-off child support for the children in the amount of $787 based on the husband’s income of $103,000 ($1,508 child support monthly), and the wife’s income of $47,762 ($721 child support monthly).

[6] Commencing October 5, 2024, the parties shall share section 7 expenses in a manner proportionate to their incomes, currently $103,000 for the husband and $47,762 for the wife. These expenses shall include:

(a) Childcare and summer camp expenses incurred as a result of employment
(b) Horseback riding for Sierra
(c) Gymnastics for both children
(d) Tumbling for both children
(e) Girl Guides/Scouts for both children
(f) Soccer for Henrik
(g) Acting for Sierra
(h) Expenses for school trips
(i) Any other expense agreed upon by the parties on consent, which consent shall not be unreasonably withheld.

[7] Section 7 arrears owing by the husband to the wife as of October 4, 2024 are fixed at

$14,085.

[8] The husband shall pay to the wife lump sum arrears of spousal support in the amount of

$12,285.

[9] Commencing November 1, 2024 and the first of each month thereafter the husband shall pay the wife spousal support in the amount of $516.

[10] For as long as child or spousal support is to be paid the wife and husband shall provide each other with updated income disclosure no later than June 30 each year. Ongoing income for the Respondent shall be determined annually by way of adding back into the Respondent’s line

150 income 50% of advertising and promotion, meals and entertainment, travel, and parking, and 60% of vehicle expenses relating to the husband’s real estate and rental property businesses, as set out in his personal and income tax returns, subject to a material change in circumstances.

[11] Support Deduction Order to issue.

[12] All other claims are dismissed.

[13] If any of the calculations in this order are incorrect, the parties may obtain a date from the trial coordinator to appear before me.

M. Tweedie. J.

Date: April 7, 2025