Court File and Parties

Court File No.: D-22-23876 (formerly FS-22-23876)
Date: 2025-01-13
Ontario Superior Court of Justice

Between:
Joanne Polack, Applicant
– and –
Peter Denis Larabie, Respondent

Applicant Counsel: Trevor Kestle
Respondent Counsel: Jordan Duplessis (until January 2023), then self-represented

Heard: January 3, 2025

Reasons for Decision on Uncontested Trial
Justice S.K. Stothart

Overview

[1] The applicant, Joanne Polack, has brought this application pursuant to the Divorce Act, RSC 1985, c 3 (2nd Supp) and the Family Law Act, RSO 1990, c F.3, seeking equalization of net family properties and spousal support. This file began as file FS-22-14382 and was later converted to file D-23876-22 when the respondent filed an answer seeking a divorce. On June 29, 2023, the answer was struck.

[2] On August 14, 2024, Justice P. Boucher ordered that an uncontested trial be scheduled related to retroactive spousal support, equalization of net family properties, and costs. Justice Boucher ordered that the uncontested trial be scheduled in the absence of the respondent and that the respondent had no rights of participation in the hearing.

[3] In support of this uncontested trial, I have received a Form 23C Affidavit for Uncontested Trial dated December 23, 2024 and a Form 13.1 Financial Statement (Property and Support Claims) sworn December 23, 2024, from the applicant. I have also received a Form 14A Affidavit (General) from the respondent sworn September 20, 2024.

History of the Proceedings

[4] The application was commenced on April 1, 2022. The respondent filed an answer on June 29, 2022.

[5] On September 29, 2022, a case conference was held before Justice D. Cornell. At the time, the applicant was represented by Trevor Kestle and the respondent was represented by Jordan Duplessis. Justice Cornell granted leave for questioning, and motions once questioning was completed. Justice Cornell also severed the respondent’s request for a divorce from the claims for corollary relief.

[6] Questioning of the respondent took place on November 16, 2022. During questioning, the respondent gave several undertakings. Questioning of the applicant did not take place, despite the applicant attending on two occasions for this purpose.

[7] On January 31, 2023, the respondent served a notice of change in representation advising that he was now representing himself.

[8] On March 30, 2023, the applicant brought a motion seeking an order compelling the respondent to comply with his undertakings and an extension of time to respond to the respondent’s requests to admit. Justice Cullin granted the motion and ordered, amongst other things, that the respondent comply with the undertakings given during his questioning which were set out in a schedule “A” to her decision. Justice Cullin ordered that if the respondent failed to comply with the order, the applicant could bring a motion to strike the respondent’s Answer and related pleadings.

[9] On June 29, 2023, the applicant brought an application seeking an order striking the respondent’s answer for failure to comply with Justice Cullin’s order and an order releasing her 50% share of the net proceeds from the sale of the jointly owned matrimonial home. Justice Cornell struck the respondent’s answer, ordered that the funds be released to the applicant and ordered the respondent to pay costs in the amount of $2,500 to be taken from the respondent’s share of the net proceeds from the sale of the home which were being held in trust.

[10] In August 2023, the respondent filed two 14B motions without notice to the applicant, seeking to set aside Justice Cornell’s order. Justice P. Boucher reviewed the motions in chambers and ordered that the respondent serve the applicant if he wished to proceed with these motions.

[11] In September 2023, the respondent filed additional notices of motion seeking, amongst other things, the release of funds from the net proceeds held in trust; monetary compensation; and a restraining order. The various motions were adjourned from September 14, 2023 to October 5, 2023 for submissions.

[12] On October 5, 2023, Justice Cullin heard the various motions. On October 19, 2023, she released her reasons for decision and found that there were no grounds to set aside the order of Justice Cornell. However, Justice Cullin did grant the respondent the opportunity to participate as a party to the proceedings if the respondent demonstrated that he was prepared to complete his undertakings and file materials that appropriately address the issues in dispute. Justice Cullin also released $15,000 to the respondent from the net proceeds held in trust.

[13] In her October 19, 2023 endorsement, Justice Cullin set out the terms to be met by the respondent and ordered that the matter return before her to review the status of those conditions and for a further hearing on the nature and extent of the respondent’s participation in the proceeding going forward. The matter was adjourned to December 21, 2023 to address the outstanding issues.

[14] On December 21, 2023, Justice Cullin received further submissions. On January 4, 2024, Justice Cullin released her reasons for decision dismissing the various motions and ordering that the applicant be permitted to set the matter down for an uncontested trial once she had completed certain enumerated steps related to disclosure. Justice Cullin ordered the respondent to pay costs in the amount of $4,500 to be taken from the respondent’s share of the net proceeds being held in trust.

[15] In her endorsement, Justice Cullin found that despite being given ample opportunity to comply with her earlier order, the respondent had not demonstrated that he was amenable to the orders and directions of the court. Justice Cullin found that if the respondent continued to participate in the litigation, he would participate in a manner that was inflammatory and abusive of the court’s process and that that would interfere with the court’s ability to address the matter justly within the meaning of the Family Law Rules.

[16] Justice Cullin ordered that the respondent not be permitted to file any further pleadings or bring any further motions without leave of the court. Her order was made without prejudice to the ability of the trial judge to grant leave to the respondent to call evidence or to make submissions at trial with respect to any issue that the trial judge deemed necessary and appropriate in order to ensure a just determination of the application.

[17] On August 14, 2024, a trial management conference was held before Justice P. Boucher. The applicant did not notify the respondent about the trial management conference because she believed that Justice Cullin’s order dispensed with the need for the respondent’s participation.

[18] Justice Boucher found that the respondent’s limited participation at the contested trial was not required. By now, the applicant had limited her claim to spousal support for a period in time during which the respondent’s income was known, and equalization. Justice Boucher concluded that the respondent had been given many opportunities to provide details regarding his assets and liabilities on the date of marriage and liabilities on the date of separation. Justice Boucher expressed his concern that the respondent’s participation in the uncontested hearing, even on these points alone, would unduly lengthen and complicate and increase the costs of the proceedings, given his prior behaviour.

[19] Justice Boucher held that the respondent would have one last opportunity to serve and file with the court an affidavit containing documentary evidence that set out his assets and liabilities on the date of marriage as well as his liabilities on the date of separation. This affidavit was restricted to 15 pages including the exhibits. Justice Boucher held that if the respondent did not provide this information, the trial would proceed without this information. Justice Boucher directed that the respondent be served with a copy of his endorsement.

[20] Justice Boucher ordered that an uncontested trial be scheduled, in the absence of the respondent and that the respondent would have no rights of participation in the hearing. Justice Boucher directed that the uncontested trial deal with retroactive spousal support, equalization of net family properties, and costs.

[21] On September 20, 2024, the respondent filed an affidavit, attaching some financial records including documents indicating his current income, balances on his current accounts, a statement from a TD Emerald Flex Rate Card that showed a balance on October 29, 2020 of $3,080.73, a statement from Northern Credit Union, showing a negative balance $20,818.56 as of October 31, 2020 but it is unclear what this account is, and a T4 slip from Vale from 2023 showing an income that year of $17,421.75.

Background Facts

[22] The applicant and the respondent were in a long-term relationship lasting 22 years. They began living together in January 1999, and were married on October 18, 2008. They separated on October 29, 2020. They have no children together.

[23] The respondent was employed with Falconbridge as a miner for just under one year prior to the date of marriage. He was laid off shortly after the marriage.

[24] According to the applicant, she encouraged the respondent to go back to school and upgrade his education. The respondent completed a two-year college course which allowed him to obtain employment as a Mining Engineering Technician. The respondent was able to obtain a grant to attend school and the parties used funds from their wedding gifts to cover their expenses. At the time the applicant worked as a Life Enrichment Worker at St. Gabriel Villa and was primarily responsible for the monthly expenses including rent, food, gas, and insurance while the respondent attended school.

[25] In 2012, the applicant obtained permanent, part-time employment with the City of Greater Sudbury as a Life Enrichment Worker at Pioneer Manor. That same year, the respondent obtained permanent full-time employment with Vale Canada Ltd. (“Vale”).

[26] In May 2014, the parties jointly purchased a home. The applicant states that she used her savings and was primarily responsible for making the down payment. She also paid for plumbing and electrical work and purchased furnishings for the home. The applicant states that she used money that she had set aside to upgrade her own education for this purchase. It had been her intention to return to school and obtain qualifications to work as a Registered Practical Nurse.

[27] The applicant states that the respondent’s income increased significantly when he secured employment with Vale. He went from earning $35,712 in 2011, to $82,998 in 2013. By 2021 the respondent was earning $127,627.

[28] The parties separated on October 29, 2020. Following the parties’ separation, the matrimonial home was sold and the net proceeds from the sale were placed in trust at the firm Amanda Berloni. The net proceeds were $141,944.49.

[29] Both parties have had their pensions valued. The applicant’s pension with OMERS has a family law value of $44,641.69. The respondent’s pension with Sunlife has a family law value of $108,738.76.

[30] The applicant has disclosed her total income for the following years:

• 2017: $28,059
• 2018: $28,340
• 2019: $30,407.91
• 2020: $32,897.41
• 2021: $33,319.52
• 2022: $42,295
• 2023: $57,821
• 2024: the applicant provided a pay stub – she earns $4,797 per month from all sources.

[31] In these proceedings, the respondent has disclosed his income for the following years:

• 2011: $35,712
• 2012: $67,117
• 2013: $82,998
• 2014: $98,270
• 2015: $95,186
• 2016: $85,926
• 2017: $107,978
• 2018: $107,840
• 2019: $110,609
• 2020: $111,278.62
• 2021: $127,627.51

[32] The respondent has not disclosed his income for 2022, 2023 and 2024.

[33] By way of motion, the applicant received an order that the respondent’s income from Vale be disclosed directly to her from the company for the year 2022. The applicant received a print-out from 2022 that shows payments to the respondent totaling $107,365.11. The respondent has not, however, disclosed his entire income from this year by way of a notice of assessment, so it is unclear if this is his total amount for 2022 from all sources.

[34] With respect to 2024, the respondent states that he is currently in receipt of Ontario Works and has provided a statement indicating he receives $793 per month. The respondent states that he is currently disputing the issue of long-term disability with Vale.

[35] The jointly owned matrimonial home was sold and there were net proceeds in the amount of $141,944.49. Half of the net proceeds have been released to the applicant. $15,000 has been released to the respondent. The remaining funds, which should be around $55,000, are currently being held in trust by the firm of Amanda Berloni.

[36] It is difficult to determine the respondent’s total assets and debts on the date of marriage and on the date of separation because he refuses to provide adequate disclosure, despite prior court orders. He has failed and/or refused to disclose the following:

• His last pay stub from Vale;
• His OHIP decoded summary;
• His Manulife benefits booklet;
• Paperwork regarding his transition to or refusal of Manulife long-term disability benefits;
• A financial statement;
• The balance of his TD chequing account on the date of separation;
• A statement setting out the value of his RRSP on the date of separation;
• A statement confirming the date on which the BMO line of credit was incurred and its balance on the date of separation; and
• Confirmation of any and all debts on the date of marriage.

Legal Principles to Be Applied

Spousal Support

[37] The court's jurisdiction to order the payment of spousal support is found in s. 15.2(1) of the Divorce Act. That provision allows the court to order a spouse to pay periodic and/or lump sum amounts, as the court thinks reasonable for the support of the other spouse.

[38] Pursuant to ss. 15.2(1) and (d), spousal support may be made on a final or interim basis. Pursuant to s. 15.2(3) a spousal support order may be made for definite or indefinite periods or until a specified event occurs. The court may also impose "terms, conditions or restrictions in connection with the order as it thinks fit and just".

[39] Section 15.2(4) requires the court to "take into consideration the condition, means, needs and other circumstances of each spouse." The factors that the court must consider include:

• the length of time the spouses cohabited;
• the functions performed by each spouse during cohabitation; and
• any order, agreement or arrangement relating to support of either spouse.

[40] Pursuant to s. 15.2(4), an interim or final spousal support order should meet the following objectives:

• recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• 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;
• relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
• in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[41] In Moge v. Moge, [1992] 3 S.C.R. 813, the Supreme Court held that all four of the potentially overlapping objectives must be taken into account. None, including self-sufficiency, is paramount or should be given priority to the others. This approach recognizes the great diversity of marriages. It allows the court to take a case-by-case approach to the determination of spousal support.

[42] The goal of the application of these four objectives is to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. There is no guarantee that the spouses will share an equal standard of living after the marriage's dissolution. However, the longer the relationship and the closer the economic union, the greater will be a spouse's presumptive claim to equal standards of living upon dissolution.

[43] As L'Heureux-Dube J. wrote for the majority at pages 848-849 of Moge:

[T]he purpose of spousal support is to relieve economic hardship that results from "marriage or its breakdown". Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects.

This approach is consistent with both modern and traditional conceptions of marriage in as much as marriage is, among other things, an economic unit which generates financial benefits...

The [Divorce] Act reflects the fact that in today's marital relationships, partners should expect and are entitled to share those financial benefits.

[44] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, the Supreme Court of Canada recognized that there are three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory; and (3) contractual.

[45] Compensatory support is premised on the notion that some or all of a spouse's entitlement to support may arise out of his or her contributions to the other spouse during their relationship.

[46] One such contribution is that a spouse may make a financial contribution to the other's career (such as supporting the spouse through their schooling). In Thompson v. Thompson, 2013 ONSC 5500, Chappel J. wrote at para. 56 that:

a compensatory claim can also be founded on other forms of contribution to the other party's career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party's income." [Citations omitted.]

[47] Unlike the law of unjust enrichment, for a spouse to be entitled to compensatory spousal support, it is not necessary that their contribution to their spouse's economic advantage be matched by their corresponding disadvantage: Shaw v. Shaw, at para. 156.

[48] On the other hand, non-compensatory support is based on need and ability to pay. The claim to such support arises out of the relationship itself and the mutual financial interdependence arising from that relationship. A claim to spousal support can arise on this basis even if there is no agreement or claim to compensatory support. Where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support: Bracklow, at para. 49.

[49] A spouse may have both a compensatory and non-compensatory claim to spousal support, with one claim stronger than the other and their relative strength shifting over time: R.L. v. M.F., 2023 ONSC 2885 at para. 263.

Equalization of Net Family Property

[50] Section 5(7) of the Family Law Act provides that the equalization of net family property provisions set out in the Act recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in a marital relationship is an equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family property subject only to the equitable considerations set out in s. 5(6).

[51] In Ward v. Ward, 2012 ONCA 462, the Ontario Court of Appeal cautioned courts to avoid deviating from the scheme set out in the Family Law Act, which provides for a sharing of property upon marriage breakdown, even if the scheme produces an unfair result. The Family Law Act is intended to promote predictability and thereby discourage litigation.

[52] In determining the rights of spouses under Part I of the Family Law Act, the court must follow a step-by-step process. In Berdette v. Berdette, the court set out the steps as follows:

1. The court must establish the net family property of each spouse under s.4. This requires the court to determine what property each spouse owned on the valuation date and to value that property after making deductions and allowing for exemptions as provided in s. 4. The onus of establishing a deduction or exemption falls on the party claiming it.
2. The court must then determine whether one spouse’s net family property is less than that of the other. If so, the court determines what the one-half difference is between them.
3. The court then decides whether, because of considerations set out in s.5(6), it would be unconscionable to equalize the net family property. If so, the court may make an award that is more or less than half the difference between the net family properties. If not, the net family properties are equalized as set out in step 2.

[53] In determining a spouse’s net family property, the onus is on the party asserting the value of an asset that he or she controls to provide credible evidence as to its value.

[54] In Sheikh v. Sheikh, Justice Gordon set out the approach to be applied where the owner of an asset fails to provide a proper valuation as follows:

Section 8, Family Law Act, requires each party to serve and file a statement of property disclosing particulars of their property, debts and other liabilities as of the date of marriage and the valuation date. Rule 13(6), Family Law Rules, provides that a party must make full and frank disclosure in their financial statement, that is, disclose the existence of all assets and their true value.

The onus is on the party asserting a value to provide credible evidence in support: see, for example, Menage v. Hedges. This, in my view, obliges a party to provide a realistic value for each asset, not a guess or fictional amount. When a value cannot be readily ascertained, or there is serious dispute, an independent valuation may be required, such as for a pension or a business: see, for example, Pennock v. Pennock; Dearing v. Dearing; and Katz v. Katz. It necessarily follows, failure to provide credible evidence to support a value may result in a value being assigned which is less advantageous to the party claiming the asset.

[55] In Homsi v. Zaya, 2009 ONCA 322, at paras. 37-38, the Ontario Court of Appeal re-affirmed this onus and recognized that where there is a paucity of evidence as to value, a trial judge may only rely on the limited evidence available to him/her.

Analysis

Spousal Support

[56] The applicant seeks spousal support on both a compensatory and non-compensatory basis. She seeks a lump sum payment of spousal support from November 1, 2020, which was just following separation, until September 30, 2022 when she secured full time employment.

[57] With respect to compensatory support, the applicant submits that she has suffered a degree of economic loss or disadvantage as a result of roles adopted during the marriage. She paid for the respondent to go back to school and supported him during his education. Her financial contributions allowed the respondent to go back to school and to then earn a substantially higher income. Further, when the parties wished to purchase a home, she depleted the funds she had put aside to return to school and upgrade her education and applied them towards a downpayment on the family home.

[58] With respect to non-compensatory support, the applicant submits that she suffered a significant decline in her standard of living following separation after a 22-year relationship. She submits that during the lengthy relationship and marriage, the parties developed economic interdependency. Since separation, the applicant has not received any form of support and has had to draw on her savings and incur debt in order to meet her monthly expenses.

[59] Following the parties’ separation, the respondent continued to earn a substantially higher income (almost four times the applicant’s income) and removed the applicant from his health benefits which left the applicant with out-of-pocket medical expenses. The applicant has not received any form of support from the respondent. Following separation, she lives a much more modest lifestyle than that enjoyed during the marriage.

[60] The mere fact that there is disparity in income does not in and of itself lead to entitlement to support based on need. Marriage does not create a lifelong guarantee of income solely on the basis that the one spouse earns a larger salary: Berger v. Berger, 2016 ONCA 884 at para. 53.

[61] The court must look at the ability of the recipient spouse to support themselves, look at their income, and their reasonable expenses and liabilities. Ultimately, whether support should be awarded ultimately depends on what is just and fair in the circumstances: Bracklow, at para. 48.

[62] Having regard to the evidence presented at this trial, including the respondent’s most recent affidavit, I am satisfied that the applicant has established a basis for both compensatory and non-compensatory spousal support. The applicant reasonably limits her claim to the period immediately following separation, until the time she was able to obtain full time employment. I find that the applicant suffered an economic disadvantage during the marriage as a result of her support of the respondent during his schooling and the decision by the parties to use her savings, that she had put aside to become a registered nurse, to purchase a home. The respondent has received an advantage from these sacrifices. He was able to earn substantially more following his education. Further, he benefited from the applicant using her savings to assist in the purchase of the family home.

[63] With respect to non-compensatory support, I am satisfied that given the length of the relationship and the marriage, and the roles played by the parties, that there was economic interdependency between the two. Following the separation, the applicant had to take on a significantly reduced lifestyle and incur debt to maintain her expenses. During the period claimed, the respondent continued to earn a much higher income and was able to take trips out of the country with his new partner and purchase expensive tattoos.

[64] I find that it is reasonable, having considered the Spousal Support Guidelines, that the applicant receive mid-level support, by way of lump sum in the amount of $59,770. This is based on the respondent’s claimed income between November 1, 2020 and December 2022. I have considered that later in 2022, the respondent began to claim short term sickness income. However, given the respondent’s repeated refusal to provide his notice of assessment for total income earned for the year 2022, I have calculated the amount owing for that year as best I can, estimating his income for that year.

[65] The respondent has produced some evidence that more recently he has been in receipt of social assistance. He has provided evidence of Ontario Works payments from 2024. The respondent states in his most recent affidavit that his current financial circumstances have changed. He claims to be destitute and living with his father. He is currently disputing the refusal of long-term disability benefits. He states that he has significant debt and is considering declaring bankruptcy.

[66] Unfortunately, the respondent’s behaviour throughout the application and refusal to disclose financial information related to his income, make it difficult for the court to make any specific findings of fact. For example, it may be that the respondent will receive money if successful in his long-term disability claim.

[67] The spousal support claimed is for the period of November 2020 and September 2022, a period during which the respondent had, based on the evidence provided by both parties, a high income and significant assets. The applicant does not seek spousal support after December 2022, and accepts that there is evidence that the respondent was on some type of disability in 2023 and some type of social assistance in 2024.

[68] Based on the materials provided, I am satisfied that it is appropriate to order the respondent to pay lump sum spousal support in the amount of $59,770, and I so order. I also order that the respondent pay pre-judgment interest on the amount owing at a rate of 5% in accordance with the rate provided on the Courts of Justice Act, RSO 1990, c C.43 for January 2025.

Equalization of Net Family Property

[69] The applicant has provided documentary evidence supporting her value of assets on the valuation date and value of debts on valuation date. She does not claim any assets or debts on the date of marriage and does not claim to have any excluded property. During the trial, counsel took the court to each exhibit supporting the applicant’s claim. I accept her claim as accurate.

[70] With respect to the respondent’s net family property, the applicant has provided documentary evidence to support her claims, as best as she is able. The respondent’s refusal to provide proper financial disclosure impacts her ability to put forth a fully accurate picture of the respondent’s net assets. I find her claims with respect to the respondent’s net family value to be reasonable and accept them.

[71] Based on the evidence provided, which I accept, I have calculated the parties’ net family properties as follows:

	Applicant	Respondent
Value of Assets on Valuation Date	$70,972 (house) $30,000 (vehicle) $44,641 (pension) $11,964.64 (bank accounts) Total: $157,578.33	$70,972 (house) $3,000 (vehicle) $108,738.76 (pension) $11,685.96 (bank accounts) Total: $194,396.72
Value of Debts on Valuation Date	$81,143.60 (including 15% contingent tax liability)	$40,352.47 (including 15% contingent tax liability)
Net Value of Property owned at marriage	$0	$0
Excluded Property	$0	$0
NFP = (total assets - total debts)	$76,434.73	$154,044.25
Equalization Payment	$38,804.76 (owed to the applicant)

[72] I have considered whether it would be unconscionable to equalize the net family property, by way of a payment by the respondent to the applicant in the amount of $38,804.76, in light of the provisions in s. 5(6) of the Family Law Act. I conclude that it would not be unconscionable.

[73] The applicant seeks prejudgment interest to the date of trial at the rate set out in the Courts of Justice Act for the first quarter of 2025, at 5%. The applicant calculates prejudgment to be $6,462.50 to the date of the trial.

[74] When one adds prejudgment interest to the equalization payment, it totals $45,267.26 owed to the applicant. As such, I am satisfied that it is appropriate to order the respondent to pay an equalization payment to the applicant in the amount of $45,267.26, and so order.

How Payment Should Be Made

[75] How payment of the support order, equalization order, and any costs order, should be made is difficult to determine in this matter given the respondent’s repeated refusal to provide financial disclosure, even in the face of court orders to do so.

[76] The applicant seeks that payment of any equalization owed to her and any costs ordered in this matter should be taken from the respondent’s proceeds from the sale of the house. At this point in time, there is approximately $55,000 held in trust.

[77] The applicant seeks that spousal support be paid out of any LIRA held by the respondent. This assumes that the respondent has cashed out his pension after leaving his employment with Vale and has placed some of the proceeds in a LIRA. Again, this is difficult to assess due to the respondent’s failure to provide financial disclosure.

[78] If the respondent has not cashed out his pension, the court could order that the respondent unlock up to half of his pension to pay an equalization order. There is no corresponding provision that allows an order that the pension be unlocked to pay spousal support.

[79] The respondent has told the applicant from the commencement of these proceedings that he will (a) share her family application with all of their friends and on social media to show how greedy she is; and (b) that if she continued with the application, he would ensure she was left with nothing. This is enclosed in a lengthy text received from the respondent that states “I don’t want to have to defend myself and you to be viewed as a greedy and cruel person while losing everything and ending up with absolutely nothing”.

[80] Based on the affidavit filed by the respondent, he appears to have taken on substantial debt post-separation and has threatened to claim bankruptcy. He has gone from a net family value of at least $154,044.25 on the date of separation and having earned $111,278 in 2020, $127,627 in 2021, and at least $107,365 in 2022, to now claiming to have no money and substantial debts. Based on the materials before me, there is no explanation for why the respondent would be in this position.

[81] Given the respondent’s refusal to provide financial disclosure, it remains unclear whether he is on an unpaid leave from Vale while disputing the issue of long-term disability, whether he voluntarily left his employment at Vale, or whether he was fired. It may be, if successful in his challenge to the decision to deny him long-term benefits, that the respondent may be entitled to a significant amount of money by way of a retroactive disability award.

[82] Given the respondent’s refusal to provide financial disclosure, it is unclear if the respondent has left his pension in place or has cashed it out and placed some of it into a LIRA. It is clear from the respondent’s text messages that he feels very strongly that the applicant should not be entitled to any amount of his pension.

[83] Given the actions of the respondent, and his refusal to provide financial disclosure, I am prepared to make an order that the respondent’s proceeds from the sale of the house, that are currently held in trust, be released to the applicant to satisfy any equalization order and costs order. If the proceeds do not fully cover the amounts owing, the respondent will be required to pay the remaining amounts.

[84] With respect to spousal support, I am prepared to order that the respondent provide financial disclosure to the applicant with respect to (a) whether he continues to have a pension at Vale; (b) whether he cashed out the pension; (c) if he cashed out his pension, what did he do with the proceeds; and (d) whether he has any registered retirement account, including any LIRA account with any financial institution. He is to provide this disclosure within 30 days of my order. If the respondent fails to provide this financial disclosure within 30 days of this order, the applicant will be permitted to bring a motion seeking to have the respondent found in contempt.

[85] Given that the issue of entitlement to long-term disability is being challenged by the respondent, I also order that the respondent disclose to the applicant, any orders or decisions made with respect to the respondent’s entitlement to long-term disability from Manulife, in relation to his employment at Vale that pre-date my decision, and any orders or decisions made following this trial.

[86] If the respondent possesses any LIRA, I order that spousal support be paid from the LIRA accounts.

[87] Otherwise, the respondent is required to, and must pay, the amounts ordered in this decision.

Costs

[88] The applicant submits that pursuant to r. 24 of the Family Law Rules, O Reg 114/99, as the successful party she is entitled to the costs of the case.

[89] The applicant relies on r. 24(4) and r. 24(8) of the Family Law Rules and seeks costs on a full recovery basis and that they be paid immediately.

[90] The applicant submits that the unreasonable actions of the respondent drove up the costs in what should have been a fairly simple matter. Ultimately, she has had to pay $34,568.34 in legal costs, in order to obtain an equalization award of approximately $38,000 and a lump sum spousal support order. Further, she has been prejudiced in her claim due to the failure of the respondent to make proper financial disclosure. It may be that she would have been entitled to a higher equalization payment.

[91] The applicant points to the texts sent by the respondent stating that if she pursued this application, he would ensure she was left with “nothing”. She submits that the respondent should not be rewarded for his unreasonable behaviour in this case that was designed to accomplish exactly what he threatened her with early in these proceedings.

[92] The applicant also points to the findings of Justice Cullin in her endorsement dated January 4, 2024 where she found that the respondent did not want the applicant or the court to have an accurate picture of his post-separation income for the purposes of determining spousal support; that he was not prepared to complete his undertakings and file materials appropriately to address the issues in dispute; that he was not amenable to court orders; that he continued to make unsupported allegations of misconduct against counsel; and that if given the opportunity to have an active involvement in this litigation, he was going to participate in a manner that was inflammatory and abusive of the court’s process and would interfere with the court’s ability to address this matter justly within the meaning of the Family Law Rules.

[93] The applicant submits that given the unreasonable actions of the respondent she should be awarded costs on a full recovery basis in the amount of $34,568.34.

[94] In the alternative, the applicant seeks costs on a full indemnity basis of 80%, which would amount to $29,383.

[95] I have received a detailed costs outline from counsel for the applicant. I am satisfied with this evidence. Counsel for the applicant has properly removed the costs associated with the motions where costs awards were made. I am satisfied that the current remaining legal fees are $34,568.34. I am also satisfied that the fees are reasonable both in the hourly rate charged and for the work conducted on the file.

[96] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party of a motion, case or appeal: Berta v. Berta, 2015 ONCA 918 at para. 94.

[97] While r. 24(1) creates a presumption, it does not require that a successful party is always entitled to costs. Where a successful party has behaved “unreasonably” they can be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs. Further, if the court concludes that a party acted in bad faith, r. 24(8) directs that the court shall decide costs on a full recovery basis and order the party to pay them immediately.

[98] In Mattina v. Mattina, 2018 ONCA 867 at para. 10, the Ontario Court of Appeal held that the Family Law Rules on costs are designed to foster three fundamental purposes:

1. to partially indemnify successful litigants;
2. to encourage settlement; and
3. to discourage and sanction inappropriate behaviour by litigants.

[99] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs: Beaver v. Hill, 2018 ONCA 840.

[100] Rule 24(12) requires that in setting the amount of costs, the court shall consider the reasonableness and proportionality of a number of specific factors that relate to the importance and complexity of the issues, as well as any other relevant matter. Those factors are:

• each party’s behaviour,
• the time spent by each party,
• any written offers to settle, including offers that do not meet the requirements of rule 18,
• any legal fees, including the number of lawyers and their rates,
• any expert witness fees, including the number of experts and their rates, and
• any other expenses properly paid or payable.

[101] Rule 24(5) provides that in deciding whether a party has acted reasonably or unreasonably, the court shall examine:

• The party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
• The reasonableness of any offer the party made; and
• Any offer the party withdrew or failed to accept.

[102] Ultimately, the court must arrive at a costs award that is fair and reasonable, that takes into account the expectations of the parties concerning the quantum of the costs award: Lyons v. Tuffner, 2007 CarswellOnt 4917 (ONSC) at para. 25.

[103] I find that as the successful party, the applicant is entitled to her costs.

[104] During the time that the respondent had counsel, which appears to be between March 2022 and February 2023, the matter appeared to proceed appropriately. Some disclosure was provided, and the respondent attended for questioning. However, once the respondent chose to discharge counsel and represent himself, his behaviour became unreasonable and obstructionist up until shortly before this trial. I note that in his September 2024 affidavit, the respondent continued to refuse to provide the disclosure he had been ordered to provide and the disclosure that had been suggested by Justice Boucher when he provided the respondent one last chance to provide this information.

[105] I am not satisfied that full and complete costs should be ordered in this matter. As I have noted, there was a period of time of almost a year where, when represented by counsel, the matter appears to have been proceeding in a normal fashion. Some financial disclosure was made, and the respondent attended for questioning.

[106] However, I am satisfied that costs should be awarded on a full indemnity basis. This reflects the respondent’s behavior following the discharge of counsel, which I find to have been deliberate and obstructionist. I find that the respondent’s behaviour was designed to fulfill his threat to the applicant that she would be left with “nothing” if she pursued this application. I strongly suspect that following my decision, the respondent will continue to try to fulfill this threat.

[107] One of the respondent’s threats was to publicly shame the applicant by sharing the details of her application with all of her friends and family, and to publish it widely on social media. It is important for this court to note that the applicant’s claims in this application were appropriate, measured and reasonable. The evidence clearly establishes her legal entitlement to the orders granted. There is nothing unreasonable, shameful, or greedy about pursuing legitimate entitlement in accordance with the law.

Conclusion

[108] For the reasons set out above, I make the following orders:

a. Peter Denis Larabie shall pay Joanne Polack $45,267.26 which reflects equalization of the parties’ net family properties, within 30 days of this order;

b. Peter Denis Larabie shall pay Joanne Polack $59,770, which reflects a lump sum spousal support for the period of November 1, 2020 and September 30, 2022, within 30 days of this order;

c. Peter Denis Larabie shall pay Joanne Polack costs of this matter, on a full indemnity basis, in the amount of $29,383, within 30 days of this order;

d. Post-judgement interest shall apply to the equalization order; the spousal support order; and the costs order, in accordance with the Courts of Justice Act, at a rate of 5%;

e. All of the remaining money currently held in trust from the sale of the matrimonial home, will be released to Joanne Polack to be applied towards the payment of the equalization award and the costs award. Peter Denis Larabie shall be required to pay any further amounts owing within 30 days of this order;

f. Peter Denis Larabie shall provide financial disclosure to the applicant with respect to (a) whether he continues to have a pension at Vale; (b) whether he cashed out the pension; (c) if he cashed out his pension, what did he do with the proceeds; and (d) whether he has any registered retirement account, including any LIRA account with any financial institution. He is to provide this disclosure by way of written confirmation from Vale, Manulife, and by way of bank statements, within 30 days of my order. If the respondent fails to provide this financial disclosure within 30 days of this order, the applicant will be permitted to bring a motion seeking to have the respondent found in contempt;

g. Peter Denis Larabie shall disclose to the applicant, any orders or decisions made with respect to any claim for long-term disability with Vale or Manulife either before or following this decision. If he fails to provide this disclosure, the applicant will be permitted to bring a motion seeking to have the respondent found in contempt; and

h. If Peter Denis Larabie possesses a LIRA account, he shall pay the spousal support order from the proceeds of that account. If the LIRA is insufficient to pay the entire amount, he remains obligated to pay the full amount of spousal support ordered.

[109] Given that this was an uncontested trial, I order that the applicant serve the respondent with a copy of these reasons and any order taken out with respect to these reasons. Service may be confirmed by sending the materials to the respondent’s last known e-mail address.

Released: January 13, 2025

Justice S.K. Stothart