CITATION: Mbaga-Katekyeza v. Katekyeza, 2025 ONSC 2886
COURT FILE NO.: FS-22-00029326
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEILA MBAGA-KATEKYEZA
Applicant
– and –
MUZOORA JEROME KATEKYEZA
Respondent
David Tobin, for the Applicant
Self-Represented Respondent
HEARD: December 05, 2024 (in person); February 11, 2025 (in writing)
VELLA J.
REASONS FOR UNCONTESTED TRIAL
1This matter proceeded by way of an uncontested trial in person and in writing on December 5, 2024, and February 11, 2025.
2The Applicant Mother (or the “Mother”) seeks an order for the following:
(a) A divorce;
(b) The Respondent Father (or the “Father”) pay table child support arrears for the period commencing June 5, 2017 to November 30, 2024, in the amount of $448,000;
(c) The Respondent Father pay s. 7 expenses arrears in the amount of $24,274.36;
(d) Commencing December 1, 2024, the Respondent Father pay table child support for the children in the amount of $4,841 based on an imputed income of $400,000;
(e) The Respondent Father pay retroactive spousal support in the amount of $479,493;
(f) The Respondent Father pay prospective lump sum spousal support in the amount of $121,000;
(g) The Respondent Father pay the Applicant an equalization payment in the sum of $503,411.86;
(h) A vesting order transferring title in the Matrimonial Home (municipally known as 137 Mercury Road, Etobicoke, Ontario M9W 3H7) from the Respondent Father to the Applicant Mother, absolutely, in satisfaction of the spousal support payments (retroactive and prospective) and the equalization payment required in subparagraphs (e), (f), and (g) above.
(i) The Land Registrar for Land Titles Division of Toronto shall accept and register the transfer conveying title to the Matrimonial Home;
(j) The Respondent’s signature on all transfer documents relating to the Matrimonial Home shall be dispensed with and the Applicant shall be permitted to sign any such documents to effect the transfer of title to the Matrimonial Home;
(k) Post-judgment interest;
(l) A Support Deduction Order (an “S.D.O.”) and
(m) Costs.
Background
3The parties began cohabiting in August 2003. They married in Toronto on May 30, 2009, and separated on June 5, 2017.
4There are three children of the marriage: Naila Nathihaika Katekyeza (“Naila”), born September 4, 2004 (20 years old, in full-time university), Mariama Kaana Katekyeza (“Mariama”), born July 26, 2006 (18 years old, in full-time university), and Jerome Kani Jr. Katekyeza (“Jerome Jr.”), born October 25, 2007 (17 years old, completing high school).
5Both parties were previously married and had children from their past marital relationships. Of particular note, the Father’s child from his previous marriage, Camara Muzoora, born 1996, lived with the parties until she became independent.
6The Mother deposed that the Father was abusive towards her. In February 2012, she went to a shelter to escape the abuse. The Father responded by commencing an application before the Ontario Court of Justice in 2012 seeking, inter alia, primary parenting responsibility for the children. The Mother obtained a temporary order placing the children in her care on June 19, 2012.
7The parties reconciled after the Father’s mother convinced the Applicant Mother to reconcile. As a result, the previous Ontario Court of Justice proceedings were withdrawn by order of Jones J. made on November 16, 2012.
8The marriage ultimately broke down when the Mother found out that the Father was engaged in extra-marital relations. She found out that the Father sponsored his girlfriend, JaneFrances Namutebi from Uganda. Ms. Namutebi arrived in Canada in October 2015 at the age of 24 years old. The Father ostensibly secured employment for Ms. Namutebi at his solely-owned company, Camara GTI, set her salary, and helped her get Permanent Residence status. In August 2017, the Father sent an email acknowledging their marital discord and separation.
Juridical History
9The juridical history of these proceedings is particularly relevant to the issues in this uncontested trial.
10The Mother commenced this Application on April 11, 2022. The Father was personally served and filed an Answer in or around September 2022 (having served the Answer on July 21, 2022).
11The Mother brought an urgent motion for exclusive possession of the Matrimonial Home on November 10, 2022. This motion was necessitated because on November 6, 2022, the Father removed her furniture, changed the locks, and locked the Mother and the children out of the home while they were out grocery shopping. The Mother and the children were forced to live with a neighbour pending the return of the motion.
12On November 10, 2022, Shore J. granted the Mother exclusive possession of the Matrimonial Home and issued a restraining order prohibiting the Father from attending within 500 metres of the Matrimonial Home.
13At a case conference held on January 11, 2023, on consent, Sugunasiri J. ordered the Father to pay child support in the amount of $2,249 each month, commencing November 2022. In addition, the Father was ordered to produce disclosure pertaining to his income.
14A subsequent case conference was held on February 6, 2023. Justice Sugunasiri ordered further disclosure from the Father and disclosure from the Mother within a fixed timeline. The Mother produced her disclosure, but the Husband only provided some of the disclosure ordered. This resulted in the Mother seeking an adjournment of the scheduled settlement conference. However, the Father and his lawyer did not respond to the request requiring an attendance in a timely manner.
15On April 17, 2023, Diamond J. ordered that the settlement conference be adjourned, with costs payable by the Father.
16On May 16, 2023, the Mother brought a motion to compel disclosure against the Father. Justice Kristjanson ordered the disclosure, stating, in part, that “the Respondent has been evasive and misleading in his disclosure to date,” that the Father’s “protests that he has fully disclosed ring hollow,” and that “his representations cannot be relied upon.”
17Justice Kristjanson held:
This is a motion brought by the Applicant mother to obtain financial disclosure. Much of the disclosure has already been ordered. Given the significant delay and the less than forthright disclosure to date, Mr. Katekyeza is given one last chance.” [Emphasis added.]
18On September 28, 2023, Kristjanson J. also issued an elevated costs award, finding that the Father had acted in bad faith in doing the following: (a) attempting to deceive and financially punish the Mother; (b) concealing financial information relevant to the issues; and (c) failing to comply with court orders for disclosure. These are significant findings and particularly relevant to the next step that occurred.
19After the Father failed to comply with Kristjanson J.’s disclosure order, the Mother brought a motion to strike the Father’s Answer with respect to the financial issues only. Justice Sharma struck the Father’s Answer relating to the financial issues only by order dated July 6, 2023, and granted leave to the Mother to amend her Application to seek a vesting order in relation to the Matrimonial Home. Justice Sharma also ordered costs payable forthwith.
20The Mother served and filed her Amended Application on October 17, 2023. The Father did not serve an Amended Answer.
21On October 27, 2023, a settlement conference was held before Faieta J. At that settlement conference, the parties settled all of the parenting issues on a full and final basis, leaving only the financial issues (child support, spousal support, equalization, and property). In particular, Faieta J. ordered on consent that there would be no order for decision-making or for parenting time for the three children of the marriage (given the respective ages of the children).
22The next step was a trial management conference. It was originally scheduled to occur on March 1, 2024; however, the Father hired a new lawyer who could not attend on that day. Accordingly, it was rescheduled to July 10, 2024, with the Mother’s costs of the adjournment reserved.
23At the trial management conference, Diamond J. granted the Mother leave to proceed with an uncontested trial with respect to the financial issues, as the parenting issues had been resolved by this time.
Preliminary Issue: Request for An Adjournment by the Respondent Father
24At the outset of the uncontested trial, the Father’s agent appeared and requested an adjournment. No motion seeking an adjournment nor any notice was provided to the court or to the Mother’s lawyer of this request.
25The Father was late, but the Father’s agent proceeded in his absence. The Father appeared later in the morning.
26According to the agent, the basis of the adjournment was that the Father had filed a 14B motion to set aside the order of Justice Sharma, which struck his Answer and denied him further participation in the proceedings under r. 1(8) of the Family Law Rules, O. Reg. 114/99, subject to the trial judge determining that she needed to hear evidence from him. The Father’s agent represented that the Father had now made some further financial disclosure through a 14B motion, but had not yet received a disposition of that motion. Hence, the adjournment was requested pending the disposition of his 14B motion. The agent did not bring a copy of the 14B motion to the trial.
27I denied the request for an adjournment and delivered brief oral reasons, reserving my right to provide further reasons. These are those further reasons.
28As noted above, Sharma J. made the order based on Kristjanson J.’s order and endorsement dated May 16, 2023, which, in turn, had provided the Father with a “last chance” to cure his breach of disclosure orders. Justice Sharma observed that the Respondent Father had failed to comply with disclosure orders made by Shore J. on November 10, 2022 and Sugunasiri J. on January 11 and February 6, 2023. The Respondent Father provided some disclosure and offered to sign authorizations to permit the Applicant to obtain disclosure from third party institutions, as a result of which the Applicant Mother had earlier withdrawn her original request to strike the Answer. However, Kristjanson J. made further compliance orders which the Respondent Father failed to comply with. Furthermore, in an email from the Respondent Father to the Applicant Mother’s lawyer sent on May 25, 2023, the Father had written: “As I intimated earlier, I am completely unable nor do I plan or wish to continue participating in this case.”
29In an endorsement dated July 6, 2023, Justice Sharma found the following:
The Respondent had been given plenty of opportunities to provide timely, fulsome and accurate disclosure, and that he simply refuses to do so. Notwithstanding the several indulgences provided to him, he refuses to comply with his disclosure obligations and court orders. He no longer wishes to be involved in this case. He has not filed responding motion material. Neither the court nor the Applicant should be put to further and unnecessary expense of time or resources”. .
30Justice Sharma ruled that “this remedy still permits the Respondent to provide the Applicant with disclosure as ordered.”
31At the trial, the Respondent Father did not provide the court with the further disclosure he may have made through his 14B motion. Indeed he did not provide any motion materials in support of his request for an adjournment.
32The Respondent Father did nothing to remedy this situation to either show good faith compliance or attempts to comply with the numerous outstanding disclosure obligations until he served and filed a 14B motion on November 27, 2024 (about one week prior to the commencement of trial).
33A 14B motion is not the proper procedure for “setting aside” or appealing Sharma J.’s order. Justice Sharma’s order was made on July 6, 2023 and stated in material part that the Respondent Father’s answer with respect to the financial issues “shall be struck pursuant to Rule 1(8)”. Furthermore, His Honour ordered that “Pursuant to Rule 1(8.4) of the Family Law Rules, the Respondent shall not be permitted to participate in the case as it relates to the financial issues, subject to the trial judge determining it is necessary”.
34Accordingly, the Respondent Father has not taken the requisite step to “set aside” the order of Sharma J., and the appeal period has long expired. Justice Sharma’s order stands.
35The Respondent Father technically has no standing to bring a motion for an adjournment. Justice Sharma made it clear that he has no right to participate in this proceeding any further, subject only to my discretion to receive evidence from him at this trial.
36Through his agent, the Respondent Father did not advise that he was prepared to give evidence at the trial.
37Furthermore, while I recognize that the threshold for granting an adjournment is low, there is prejudice for this last-minute request for an adjournment that cannot be compensated by costs, and it would not be in the interests of justice to grant an adjournment.
38First, there is prejudice to the rights of the children of the marriage. There is a claim for retroactive and ongoing child support. Child support is the entitlement of the children. There has already been a substantial delay occasioned by the Father’s conduct throughout this litigation and further delay is not justified.
39Second, there is prejudice is to the integrity of the justice system and the Mother’s right to a timely trial. An adjournment would result in a further chance, beyond the last chance given by Kristjanson J., to produce long outstanding financial disclosure. In my view, providing a further chance to comply at this late stage will unduly hold up the process, adding time and expense to the Mother, and frustrating the allocation of judicial resources. As has been oft stated, financial non-disclosure is the cancer of family law proceedings. No explanation was provided for why the Respondent Father did not attempt to make any efforts to comply with fundamental financial disclosure until 18 months after Justice Sharma’s decision, and after the trial management conference when this trial date was set, to the Father’s knowledge.
40Furthermore, court orders are not suggestions to be complied with when, if, and to the extent a party determines convenient.
41The record is replete with the Respondent Father’s conduct that has resulted in delays in this proceeding, to the prejudice of the Applicant Mother, who did not receive any child support until Shore J.’s order and has received no spousal support to date. There has been no division of property or equalization. She is entitled to her day in court, in a timely manner.
42The Respondent Father’s lack of respect for the court process was only reinforced by the appearance of counsel in person before me on December 5, 2024 with no notice to the court of the request for an adjournment, and no materials tendered in support of the request for an adjournment.
43The adjournment was denied, and we proceeded with the uncontested trial in person. The Respondent Father was at liberty to attend and observe.
44Subsequent to the hearing of the uncontested trial in person, the 14B motion filed by the Father was directed to my attention. I issued an endorsement on December 6, 2024. I noted, in part, that the 14B motion did not reference Sharma J.’s order, contrary to the Respondent Father’s agent’s representations. It only referenced Kristjanson J.’s order. Such documents as he produced were documents that could have been produced at the outset of the litigation, as were the signed authorizations to allow the Mother to make requests of his financial institutions. Many responses were effectively that the documents requested do not exist. As stated, the 14B motion was not the right venue for such a motion. It was not uncomplicated, procedural, or made on consent. In any event, the motion was moot by the time it was directed to my attention.
Issues
45The issues for the uncontested trial are the following:
(a) Should income be imputed to the Father for the purpose of calculating the quantum of child support, and if so, what is the appropriate income?
(b) Is it appropriate to order retroactive and post-application child support, and if so, in what amount?
(c) Is the Mother entitled to spousal support? If so, should retroactive and post-application spousal support be ordered, in what amount, and for what duration? Should lump sum spousal support be ordered for prospective spousal support?
(d) What is the equalization payment owing?
(e) Should a vesting order transferring title in the Matrimonial Home from the Father to the Mother, absolutely, be granted in satisfaction of any equalization payment and spousal support owing by the Father?
(f) Should a divorce be granted?
The Law and Analysis
46The Applicant Mother filed a trial affidavit dated November 12, 2024, a Form 23C Affidavit for Uncontested Trial dated November 25, 2024, a subsequent trial affidavit to address the line of credit issue dated February 11, 2025, and an affidavit from her expert appraiser, Jim Parthenis, dated November 26, 2024, regarding the value of the Matrimonial Home on various dates.
Child Support, s. 7 expenses, and Imputation of Income
47Section 15 of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”), provides that a payor’s annual income is to be determined in accordance with ss. 16-20. Section 16 provides that a payor’s annual income is their income set out under the heading “Total income” in the T1 General form on their income tax return, subject to ss. 17-20 and adjusted in accordance with Schedule III.
48Pursuant to s. 15.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the Father has an obligation to pay child support for the three children of the marriage. Per s. 15.1(3), any order for child support is to be made in accordance with the Guidelines.
49D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”) is the leading case with respect to retroactive child support.
50Retroactive child support orders are not extraordinary remedies, since they reflect a parent’s obligation to pay child support as an entitlement of the child: D.B.S., at para. 97.
51At para. 133 of D.B.S., the Court set out four factors that courts must consider in determining an award of retroactive child support (see also, Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 29):
(a) Whether the recipient has an understandable reason for the delay in seeking relief in the courts;
(b) The payor’s conduct;
(c) The children’s circumstances;
(d) Whether a retroactive award would result in hardship.
52With respect to retroactive child support, in Amirmoezi v. Motieenia, 2024 ONSC 6188, at paras 38-40, Kraft J. wrote:
In D.B.S. v S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”), at para. 38, the Supreme Court of Canada identified the core historical principles governing child support as follows:
These core principles animate the support obligations that parents have toward their children. They include child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide the children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.
More recently, the Supreme Court of Canada reiterated in Colucci v Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, “the long-established principles that support is the right of the child and that parents have a financial obligation to their children arising at birth and continuing after separation”: at para. 36.
Child support is determined in accordance with the CSG, which are legally binding.
53As also noted by Kraft J. in Amirmoezi, at para. 41, retroactive child support refers to monies claimed that should have been paid, whereas arrears for child support refers to the shortfall in payment of child support owing that has accumulated under an existing court order or agreement.
54In this case, the claim by the Mother is properly characterized as retroactive and post-application child support since the Father paid the amount ordered by Sugunasiri J. by way of a temporary consent order and from November 2022 and forward. However, that order was without prejudice to the court determining the proper amount of table child support to be paid by the Father over the entire period that child support is found to be owing.
55Section 19(1) of the Guidelines permits the court to impute income to a payor as it considers appropriate in the circumstances. The section sets out a list of circumstances where the court may impute income, which includes when a spouse is intentionally unemployed or underemployed, is living in a country with different effective tax rates than Canada or fails to provide income information when under a legal obligation to do so.
56While the Court has discretion under s. 19(1) to impute income, it must do so based on the evidence. The Court cannot select an arbitrary figure: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at paras. 44, 52.
57Of particular note to this analysis, s. 18(2) of the Guidelines states:
In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
58Due to the Father’s failure to produce complete financial disclosure, the Mother had to undertake her own inquiries, hire a professional income valuator, and resort to financial documents that were at the Matrimonial Home, in addition to the financial documents that the Father did produce. She asks the court to draw an adverse inference against the Father.
59In Manchanda v. Thethi, 2019 ONSC 1749, at para. 25, Monahan J. stated that “there is broad discretion for a court to draw reasonable inferences for the purpose of resolving property issues or imputing income” where there has been a lack of financial disclosure.
60Furthermore, in Manchanda, Monahan J., quoted from Meade v. Meade (2002), 2002 CanLII 2806 (ON SC), 31 R.F.L. (5th) 88 (Ont. S.C.J.), at para. 81 (per Kiteley J.):
Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who was confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary.
61This is one such case. The Father’s financial disclosure has already been adjudged to be so lacking and unhelpful that his Answer was struck with respect to all financial issues. I will draw an adverse inference against the Father in favour of the Mother for the purpose of imputing income to him.
The Mother’s Evidence
62The Father is a senior geomatic engineer. He is both employed at a company and self-employed. He works on large scale projects such as the engineering of airport runways.
63In 2011, the Father worked with OHL Construction Canada as a senior engineer. Since approximately 2013, the Father has been employed as a senior engineer with an Irish engineering company, Ward & Burke Construction Ltd. It operates as Ward & Burke Microtunnelling Ltd. (“Ward & Burke”) in Canada.
64The Mother deposed that the Father’s income from Ward & Burke included being paid as a consultant, in addition to his reported salary. This had the effect of lowering his employment income for tax purposes. He also receives approximately $3,000 per month as expenses for using his car and a per diem of $100 for when he travels outside of Toronto. He has routinely travelled to the U.S.A. and across Canada for Ward & Burke.
65The Father also owns and operates his own company, Camara Geomatics Technologies Inc. (“Camara GTI”). This company specializes in geomatic engineering, surveying, and mapping services.
66Since 1994, the Father has had a business relationship with his friend, Mr. Sani. Mr. Sani operates Sani International Technology Advisors Inc. (“Sani International”) and specializes in mapping. Together, the two businesses have had contracts with the Toronto Pearson International Airport for maintaining, monitoring, and measuring runways. The Mother deposed that the Father earns about $80,000 each year through Camara GTI’s association with Sani International.
67In addition, Camara GTI had a contract with the Government of The Bahamas to survey the island. The Mother deposed that in 2019, the Father earned approximately $250,000 USD as a result of this work.
68The Mother deposed that the Father has at least two steady sources of income. His corporate income from his company called Camara GTI, and his personal employment and unreported income from Ward & Burke. The Mother estimates that the Father earns about $400,000 a year from all sources, based on the financial records she obtained.
69The Mother retained an expert, Edward Nagel, to review the Father’s income. Between January and April 2023, Mr. Nagel made requests for specific financial documentation from the Father. The Father provided some disclosure in May 2023, but these disclosures were not sufficient to enable Mr. Nagel to complete his income valuation report. Nonetheless, Mr. Nagel made some observations that informed the Mother’s evidence.
70The Mother made requests for information from the TD Bank for the Father’s bank accounts and Camara GTI’s bank accounts that were fulfilled. The bank accounts are in U.S. Dollars. The TD Bank also provided some information as reflected in the Mother’s affidavit and exhibits.
71The Mother provided detailed calculations in her affidavit, derived from the statements from the various bank accounts and corporate and personal income tax statements she accessed relating to the Father and to Camara GTI. For example, with Mr. Nagel’s assistance, she demonstrated that nine deposits, totalling $474,580 USD (or approximately $660,000 CAD), were deposited into the Father’s USD Business Chequing account, ending in *1857 (the “TD Business Account”) and that these deposits were made between March 2019 and October 2020. Furthermore, one of these deposits was related to a cheque deposit slip issued by Sani International, which she was able to locate.
72As well, a total of $131,437.85 USD was transferred from the TD Business Account into Camara GTI’s main TD business account, ending in *334437 (the “Camara GTI Account). Mr. Nagel was able to trace each transfer, totalling this amount into the equivalent CAD account.
73In addition, there were four outgoing transfers totalling $286,550.47 USD from the TD Business Account into an unidentified “beneficiary” account. The Father did not produce the latter account statements. Finally, through Mr. Nagel, the Mother was able to trace certain payments totalling $16,000 USD to credit card payments, which appear to be a payment to Camara GTI’s credit card and the Father’s personal credit card.
74The Mother deposed that Mr. Nagel reviewed the disclosure from the TD Bank and noted the following:
(a) The transactions in the TD Business Account do not appear to be reflected in Camara GTI’s general ledger or trial balance as revenue; to the extent the “deposits” are revealed, this would suggest that the Father is not fully reporting his income in his financial statements, and by extension, not fully reporting all of his income to the CRA for tax purposes; and
(b) The transfers from the TD Business Account to the unknown beneficiary account could suggest another previously undisclosed bank account held by the Father and/or Camara GTI.
75The Father declined to have an income valuation report prepared.
76The Father did disclose his personal income tax returns and notices of assessment which disclosed the following Line 15000 income:
(a) 2017: $140,793.69;
(b) 2018: $140,642;
(c) 2019: $145,259;
(d) 2020: $145,699;
(e) 2021: $147,226.06;
(f) 2022: $73,199.
77The Father has not produced his notice of assessment or personal income tax return for 2023. He also has not produced corporate tax returns for Camara GTI for certain years.
78The Mother deposed that the Father’s reported income does not include the corporate (non-employment) income he earns from Camara GTI or the cash income he receives from Ward & Burke as a consultant or as benefits.
79To each of the respective years’ Line 15000 income derived from the notices of assessment, the Mother has added deposits reflected in the Camara GTI Account (*334437) and came up with the following income figures (reflecting conservative estimates based on the financial documents obtained) that she requests be imputed to the Father:
(a) 2017: $363,611 CAD comprised, in part, of the Line 15000 reported income, plus $74,625.20 of deposits into the Camara GTI Account, plus $100,000 of imputed income back to Camara GTI relating to the employment income paid to Ms. Namutebi (each year). As noted by the Mother, Camara GTI’s T2 Short corporate tax return for 2017-2018 showed no corporate income.
(b) 2018: $285,000 comprised, in part, of the Line 15000 reported income, plus deposits into the Camara GTI Account (the only corporate account the Mother obtained disclosure for) of $71,477, and imputed income of $100,000 to Camara GTI;
(c) 2019: $500,000 comprised, in part, of the Line 15000 reported income, plus Camara GTI’s revenue as recorded on its 2019-2020 T2 corporate tax return of $90,151, deposits totalling $411,540 USD (approximately $546,072 CAD) into one of its TD accounts and deposits of $102,066 into the Camara GTI Account (*334437);1
(d) 2020: $428,778 comprised, in part, of the Line 15000 reported income, plus Camara GTI’s 2020-2021 T2 corporate tax return revenue of $95,578, plus deposits between May and October 2020 of $79,040 USD into its TD account (which was closed in October 2020). In addition to this, there were deposits totaling $124,953.56 into the Camara GTI Business account;
(e) 2021: $313,447 comprised, in part, of the Line 15000 reported income, and Camara GTI’s revenue of $401,427 with a net income of $58,944, as per its T2 corporate tax return and imputed income to Camara of $100,000.
(f) 2022: $350,339 comprised, in part, of the Line 15000 reported income and Camara GTI’s revenue of $904,382 and a net income of $277,140.
80The Mother deposed that the above amounts are the minimum annual earnings of the Father, based on the fact that he did not produce complete banking records nor financial documents for each year, and particularly if $100,000 is also imputed to Camara GTI for each fiscal year as employment income to Ms. Namutebi and therefore as available income to the Father.
81With respect to the last point, the Mother deposed that the Father has effectively been diverting his income to Ms. Namutebi ostensibly as employment income, even though Ms. Namutebi has no such work experience in Canada, in order to avoid child support obligations. She produced Ms. Namutebi’s 2018 Notice of Assessment showing that Camara GTI paid her $100,648 in 2018. As well, the Mother produced a 2022 T4 slip for Ms. Namutebi issued by Camara GTI in the amount of $92,499.97. These documents were sent to the Matrimonial Home, whose address was reflected on the Notice of Assessment and T4.
82The Mother has presented evidence that demonstrates that Ms. Namutebi is the Father’s girlfriend. Accordingly, the Mother has demonstrated that the annual payments to Ms. Namutebi of $100,000 is not an arm’s length transaction within the meaning of s. 18(2) of the Guidelines.
83Furthermore, there is no suggestion that prior to Ms. Namutebi, Camara GTI had any employees other than the Father; rather, the evidence is that the Father is the sole officer, director, and shareholder. The Father has not established that these payments were reasonable in the circumstances. It is not plausible that Camara GTI would pay Ms. Namutebi annual amounts that approach the amounts that the Father ostensibly earns from the company as a geomatic engineer and as sole officer, director, and shareholder. Accordingly, I am prepared to impute the approximate amount of $100,000 per year back to Camara GTI as revenue available to the Father to take as income. This alone adds approximately $100,000 a year to the Father’s income since the date of separation, demonstrating that the Mother’s imputed income figures are plausible.
84I note that Camara GTI is effectively a professional services corporation through which the Father receives his consultant and other professional fees. It does not appear to carry on any business other than through the Father’s professional services as a geomatic engineer.
85I am satisfied based on the financial records produced, along with the Mother’s written testimony and the adverse inference drawn by the Father’s failure to produce the requisite financial disclosure ordered in relation to his personal employment income, his income from Camara GTI, and Camara GTI’s financial records, that the Father earned at least the amounts the Mother has requested be imputed to him between 2017 and 2022. For the purposes of child support, the Father’s income is therefore imputed as follows:
(a) 2017: $363,611;
(b) 2018: $285,000;
(c) 2019: $500,000;
(d) 2020: $428,778;
(e) 2021: $313,447;
(f) 2022: $350,339.
86The Mother has no financial disclosure from the Father for 2023 and 2024, including personal income tax returns, notices of assessments, or corporate tax returns. She has proposed that the court impute income to the Father for these two years based on an average of the imputed incomes from 2017 to 2022 and requests that income be imputed to the Father of $400,000 for each of these years.
87The court will engage in this type of exercise to impute income in these circumstances. Taking the average income over the past six years makes sense. Accordingly, I am prepared to impute income to the Father in the sum of $400,000 for 2023, 2024, and on an ongoing basis.
88The Father shall disclose his up-to-date personal income tax returns, notices of assessments, and corporate tax returns (together with all schedules and supporting documents) each year that child support is to be paid by July 1 of each year.
89The Mother provided DivorceMate calculations which reflect in the latter years the fact that the eldest and second eldest children are in full-time university but spend some months each year living with her. The youngest child, Jerome Jr., still lives full-time with the Mother as he completes grade 12 this year and is anticipated to start full-time university in September 2025. At that point, the child support will have to be reviewed and adjusted accordingly.
90Based on the Father’s income, and the living arrangements for the children of the marriage, each of whom is a dependent and eligible for child support, the table child support owing by the Father is:
(a) 2017 (6 months): $34,902 (at $5,817 per month);
(b) 2018: $56,196 ($4,683 per month);
(c) 2019: $93,696 ($7,808 per month);
(d) 2020: $81,216 ($6,768 per month);
(e) 2021: $61,008 ($5,048 per month);
(f) 2022 (from January 1 to September 1, children lived full-time with the Mother, and from September 1 to December 31, Mariama and Jerome lived full-time with the Mother while Naila lived in residence at university in Kingston): $58,344 ($4,864 per month) less $4,498 paid by the Father (pursuant to court order) for a remaining balance of $53,846;
(g) 2023 (from January 1 to December 31, Mariama and Jerome lived full-time with the Mother, while Naila lived with the Mother from May 1 to August 31): $66,012 ($5,501 per month) less $26,968 paid by the Father, for a remaining balance of $39,024; and
(h) 2024 (for 11 months, Jerome lived full-time with the Mother, Mariama lived with the Mother from January 1 to August 31, and then moved to Montreal to attend Concordia University; Naila lived with the Mother from May 1 to August 31, and due to her rotation at university lived 2 of 4 weeks with the Mother): $53,251 ($4,841 per month) less $24,739 paid by the Father for a remaining balance of $28,512 to November 30, 2024.
Total owing: $448,400
91I must next determine whether retroactive child support ought to be paid by the Father, applying the four factors from D.B.S.
92The Mother did not start this Application until 2022. At least some of that delay is explained by the fact that she underwent neurosurgery in February 2017 and needed over one year to recover. The surgery was for her diagnosis of Cervical Spinal (Intra) Dural Arteriovenous Fistula. The Mother then returned to full-time work as a registered nurse in November 2018. There is no indication in the evidence as to why she delayed commencing these proceedings for approximately three plus years (from November 2018), other than the important observation that she had to raise and provide for the three children (and the Father’s biological child from another marriage) on her own, which required her to work full-time and devote her energies to the children and keeping the family afloat.
93The Father’s conduct has been less than desirable. He essentially abandoned the family, having started a new relationship with Ms. Namutebi, and did not make any effort to pay child support, contribute to s. 7 expenses, or make any other financial contributions to the benefit of the children until he was ordered to do so, albeit on consent, in November 2022. His conduct in failing to make full and fair financial disclosure, in the face of court orders, has also caused the progress of this matter to be delayed. The Father should not have declined to pay child support until November 2022, given that it is his positive obligation and the children’s entitlement.
94However, the children have been looked after well by the Mother, with the eldest two now attending full-time university, and the youngest poised to do so in the fall.
95The total amount of outstanding child support is substantial. The Father is 65 years old. However, there is no indication that he is about to retire from his lucrative profession and business. Based on the evidence before me, which, if anything, suggests that the Father’s income has been somewhat underestimated, I find that there will not be a financial hardship to the Father if he is ordered to pay the outstanding child support. A further consideration, as will be discussed later in these reasons, is the fact that he will not owe any further monies, other than costs, in light of my decision to vest the title of the Matrimonial Home in the Mother absolutely in satisfaction of the equalization payment and spousal support payment he would otherwise have had to pay out of pocket for.
96On balance, having regard to the factors in D.B.S. and the principles underlying child support, I find it appropriate and just that the Father pay retroactive and post-application child support. He has had the benefit of the funds that ought to have been paid since the date of separation and should not be rewarded for having abandoned the children.
97Accordingly, the Father owes child support in the sum of $448,400 from the date of separation to November 30, 2024. An S.D.O. shall issue.
98The Father shall also pay ongoing child support from December 1, 2024, based on an imputed income of $400,000 in accordance with the Guidelines. The child support shall be payable for each child so long as each is eligible for child support. If the child attends full-time post-secondary school, then the obligation will end for each child at the conclusion of the child’s first full-time post-secondary degree program.
99The Mother also seeks retroactive s. 7 expenses for the period of 2022 to 2024. The Father has made no contribution whatsoever to any s. 7 expenses since the date of separation.
100In 2022, the Father’s imputed income was $350,339 and the Mother’s Line 15000 income was $71,803. She is seeking a proportionate contribution from the Father, being 71.3 percent, for the following items:
(a) $525 for Naila’s tuition for Queen’s University;
(b) $391 for Jerome Jr.’s prescription eyeglasses; and
(c) $8,230 for Mariama’s orthodontic treatment after a jaw injury she suffered following an accident.
101The total contribution sought from the Father is $6,521.10.
102These expenses have been proven by way of invoices and the payment history for Naila from the Queen’s University portal. These qualify as s. 7 expenses. The Father has been totally absent from the children’s lives and cannot have reasonably been expected to be consulted about these expenses.
103The Mother seeks retroactive s. 7 expenses for 2023 based on their respective incomes, which translates to a 68.3 percent contribution from the Father.
104The s. 7 expenses claimed are:
(a) $7,343.46 towards Naila’s tuition; and
(b) $2,138.94 towards Naila’s meal expenses and school supplies.
105The Mother seeks a total of $6,476.48 as the Father’s proportionate share of these s. 7 expenses.
106The Mother notes that Naila has contributed to her university education by way of OSAP, bursaries, and various scholarships she has received.
107In 2024, the Mother seeks contribution for the following s. 7 expenses with 68 per cent payable by the Father:
(a) $1,693.87 and $508.50 for Jerome Jr.’s driving lessons and test;
(b) $574.96 for Jerome Jr.’s prescription contact lenses;
(c) $7,281.17 for Mariama’s university residence; and
(d) $6,525 for Mariama’s mandatory meal plan at university.
108Again, the Mother notes that Mariama has contributed to her university education, including tuition, by way of through OSAP, the Canada Student Grant for Students with Disabilities, and other grants.
109I am satisfied that the amounts claimed are s. 7 expenses, and that the Mother incurred them. She is entitled to a contribution to these expenses as requested in the sum of $24,274.36.
110On a prospective basis, the Mother seeks a contribution to future s. 7 expenses proportionate to their respective incomes (based on her imputed income of $120,000 and $400,000 imputed to the Father); namely, a contribution of 68% of s. 7 expenses.
111The Mother deposed her estimates as to the anticipated future s. 7 expenses, which will be primarily in the form of university tuition and related expenses for the academic school year 2025-26 and forward. However, these expenses are somewhat speculative and have not been incurred.
112Therefore, I decline to make a ruling with respect to the prospective s. 7 expenses. However, the Father shall be provided with advance notice of the prospective s. 7 expenses by the Mother prior to them being incurred. The Father will be responsible for his share of s. 7 expenses on an ongoing basis in an amount proportionate to the parties’ respective incomes.
113An S.D.O. shall issue.
Spousal Support
114The parties were married for about 8 years but cohabited for about 14 years. They have three children together. During the marriage, the Father was the primary earner, and the Mother was the secondary earner.
115In making a spousal support order under s. 15.2(4) of the Divorce Act, 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.
116The objectives of a spousal support order under s. 15.2(6) of the Divorce Act are as follows:
(a) recognize any economic advantages and 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 hardships of the spouses arising from the breakdown of the marriage; and
(d) in so far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
117There are three conceptual bases for entitlement to spousal support, as outlined in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 15:
(a) Compensatory: this is grounded in the factors and objectives in s. 15.2(6)(a) and (b) of the Divorce Act. In considering the means, needs, and circumstances of the spouses, the court must recognize that a spouse’s inability to support him or herself may relate to foregoing career opportunities during the marriage to care for home and family;
(b) Contractual: this is grounded in s. 15.2(4)(c) whereby the parties may have made an agreement before or during the relationship, which creates or negates a support obligation; and
(c) Non-compensatory: this is a needs-based claim, which is grounded in the objectives in s. 15.2(6)(c) and (d) of the Divorce Act.
118The court shall not consider any alleged misconduct of a spouse in relation to the marriage: Divorce Act, at s. 15.2(5).
119As stated by Petersen J. in K.K. v. M.M., 2021 ONSC 7522, at para. 46, the trial judge must “determine a quantum (amount and duration) that is reasonable for the support of the other spouse and that equitably alleviates the adverse consequences of the marriage breakdown,” citing Bracklow, at para. 36; Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 65.
120The parties’ relationship was one in which the Mother had the primary role in caring for the children and looking after the home while the Father successfully developed his career. The Mother was and is a registered nurse. I do not have evidence as to the degree to which the Mother worked as a registered nurse before separation. However, I infer from the evidence that the Mother did work as a registered nurse and that the Father was always the primary earner, and she was the secondary earner. The Father admitted in his Answer that the Applicant took time off from work following the birth of the children. Furthermore, the Mother deposed that the Father regularly travelled for work for long periods, making the Mother’s work commitments subordinate to the Father’s. I find as a fact that the Mother was economically disadvantaged by her role in the marriage as the primary caregiver and looking after the home, while the Father was conversely economically advantaged by the marriage, as he was able to travel extensively and develop his business during the marriage.
121Furthermore, upon the breakdown of the marriage, the Mother was further economically disadvantaged as the Father declined to pay child support until November 2022 pursuant to a court order and paid no spousal support whatsoever. Tangible evidence of this disadvantage is the low level of savings accumulated by the Mother as at the date of separation in the approximate amount of $16,000. I have also considered the disparity between the ages of the spouses, with the Father arguably approaching retirement, though I have no evidence as to his present intentions.
122The Mother has established that she is entitled to spousal support on a compensatory and needs basis.
123After separation, and upon the Mother’s lengthy recovery from her surgery, she immediately resumed working as a registered nurse, and continues to do so as at the date of the trial.
124The Mother seeks an order for “retroactive” spousal support in the sum of $479,493 from the date of separation until November 20242. She also seeks a lump sum spousal support order for ongoing support in the sum of $121,000 on the basis that it will provide her with certainty and will remove the possibility of the Father bringing a motion to change and engaging in bad faith litigation tactics, such as chronic non-compliance with court orders, which he has been found to do in the past.
125I note that in MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (Ont. C.A.) the Court of Appeal stated that post-application support is not retroactive support. Therefore, the Mother’s claim for retroactive support is really for the period from July 2017 to April 2022 (commencement of the Application). Therefore, she is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. There is no evidence that suggests that the Mother requested spousal support prior to serving her Notice of Application.
126In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 207-212, and Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, at para. 114(c), the Supreme Court of Canada set out the principles for retroactive spousal support.
127As stated in Bremer v. Bremer (2005), 2005 CanLII 3938 (ON CA), 13 R.F.L. (6th) 89 (Ont. C.A.), at para. 9:
The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established need [including any requirement to encroach on capital] and the payor’s ability to pay; ii) the underlying basis for the ongoing support obligation; (iii) the requirement that there be a reason for awarding a retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or a fact a redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support in negotiations to that end; vii) delay in proceeding in any explanation for the delay; and viii) the appropriateness of a retroactive order predating the date on which the application for divorce was issued.
128The Mother is presumptively entitled to spousal support commencing May 1, 2022. There is no reason to displace this presumption.
129In my view, the Mother is also entitled to retroactive spousal support from the date of separation to the Notice of Application, considering the factors outlined in Bremer and the principles underlying spousal support as stated in Kerr and in Colucci.
130In particular, the Mother had no financial support whatsoever from the Father as at the date of separation. She was required to carry all of the expenses relating to the children, the home, and herself. Furthermore, the Father did not provide the requisite financial disclosure, including that disclosure that was ordered by the court, leading to the striking of his Answer on financial issues. As well, the Father had the means to pay her support as a high-income earner during the material years.
131Finally, any hardship that may be imposed on the Father as a result of an order of retroactive spousal support will be mitigated by the vesting order I will be making regarding the Matrimonial Home. This vesting order will wholly offset the spousal support payment (and equalization payment) owed by him.
132The Mother submits that since their respective incomes fluctuated each year, the parties’ annual incomes should be used to determine the quantum of spousal support: K.K. v M.M., at para. 15.
133In her trial affidavit, the Mother outlines her employment positions since November 2018. Since that time, she has been either working full-time or in combined part-time positions as a registered nurse. Since May 2024, she has been working full-time as a registered nurse at the Canada Boarder Services though Calian Group Ltd. at the Toronto Immigration Detention Centre.
134Her annual Line 15000 incomes are as follows:
(a) 2017 (six months) (she had surgery and worked only part of the year): $13,522;
(b) 2018 (worked less than 2 months due to ongoing recovery from surgery): $985;
(c) 2019: $48,115;
(d) 2020: $50,616;
(e) 2021: $57,691;
(f) 2022: $71,803;
(g) 2023: $131,611; and
(h) 2024 (May to October): $58,111.25 (paystubs submitted).
135The Mother submits that her income should be fixed at $120,000 per year from 2024 and forward, as reflected by her current employment Line 15000 and paystubs. I agree.
136As stated, no spousal support has been paid since the date of separation.
137The Spousal Support Advisory Guidelines (the “SSAG”) are a guide, which the court will only review as a measure against which to determine what level of spousal support will meet the objectives of the Divorce Act: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 95.
138Section 15.3 of the Divorce Act provides that where a court is considering an application for both child and spousal support, it must give priority to child support.
139I have found the DivorceMate calculations submitted by the Mother, using the respective incomes for each party, to be appropriate. The Mother requests a mid-range amount.
140The monthly spousal support ranges on the “With Child Support” formula in DivorceMate are as follows:
(a) 2017: $5,825 for six months = $34,950;
(b) 2018: $4,421 x 12 = $53,052;
(c) 2019: $8,384 x 12 = $100,608;
(d) 2020: $5,974 x 12 = $71,688;
(e) 2021: $4,107 x 12 = $49,284;
(f) 2022: $5,128 x 12 = $61,536;
(g) 2023: $4,348 x 12 = $52,176; and
(h) 2024: $5,109 x 11 (to November 30) = $56,199.
Total: 479,367 (retroactive and post-application)
141In addition, the Mother submits that she should receive $121,000 for an additional three years of spousal support using the 2024 calculations, payable by way of lump sum, and then terminating the obligation to pay spousal support at the end of 2027. Under the Mother’s submission, she would receive a total of ten and a half years.
142Generally, the relevant time for determining the respective incomes of the spouses under the SSAG is the date of trial: SSAG, at s. 6.7. However, in K.K. v. M.M., at para. 15, Petersen J. held:
However, where (as in this case) a significant amount of time has elapsed between the date of separation and the date of trial, and where the payor spouse has experienced a material increase in income in the interim, adjustments may be appropriate: SSAG, s. 14.3. In some circumstances, it will not be reasonable or equitable for the recipient spouse to share in the post separation increase in the payor spouse’s income. In those cases, it may be more appropriate to use the parties’ income at the date of separation to generate a perspective spousal support range.
143In this case, it is fair and equitable to depart from the general approach and instead use the parties’ actual (or imputed) incomes on a year-by-year basis to determine the appropriate level of retroactive and post-application spousal support.
144The DivorceMate calculations generated a recommendation that the duration of the spousal support be for 7 to 14 years.
145I have the discretion to decide whether to apply the SSAG with respect to both the amount and duration of spousal support. This discretion includes the discretion to award support at the low, mid, or high range of amounts suggested by the SSAG, or in exceptional cases, to depart from the ranges: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 110.
146It is also noteworthy that the Father is a high-income earner. He has previously exceeded, and currently exceeds, the ceiling set for the SSAG of $350,000.
147The parties were engaged in a lengthy cohabitation. The Mother was 39 years old and the Father was 58 years old at the date of separation. The Mother is currently 47 years old, and the Father is 65 years old. At the date of separation, the Mother was a registered nurse. Currently, the Father is a high-income earner, and the Mother, while earning less, is fully employed as a registered nurse and has been since at least 2018.
148In my view, these factors favour a relatively short duration for spousal support and a mid-range quantum. I fix the duration of the spousal support at 8.5 years. The Mother is fully employed as a registered nurse, two of the children are nearing the end of their first undergraduate degree, and Jerome Jr. will be embarking on his first undergraduate degree next year. The Mother is much younger than the Father and has many more income earning years ahead of her. The Father will retire much sooner and is arguably approaching his retirement years. This means that the spousal support obligation will end on December 31, 2025.
149I agree with the Mother that it makes sense to fix the prospective spousal support at a lump sum figure. Based on the SSAG calculations using the mid-range figure and fixing the Mother’s income at $120,000 and the Father’s income at $400,000, the Father will owe 5,109 x 13 months (December 1, 2024 to December 31 2025 inclusive) for a total of $66,417.
Equalization of Net Family Property
150The Mother seeks an equalization payment in the sum of “at least” $503,000. She filed her net family property statement (the “NFP statement”). She notes that she did not have the benefit of full financial disclosure. Accordingly, she asks the court to draw an adverse inference against the Father and accept her NFP statement as accurate. The Father did not file a net family property statement. For the reasons stated above, I am prepared to draw the adverse inference against the Father.
151Furthermore, the Mother’s NFP statement is supported by the evidence.
152The main family asset is the Matrimonial Home. The Matrimonial Home is in the Father’s name, alone. It is valued at $840,000 as at the date of separation. I accept this valuation based on the expert evidence and appraisal of Mr. Parthenis of Carrington Appraisal, whose affidavit and report was filed. Mr. Parthenis is a professional appraiser, a candidate member with the Appraisal Institute of Canada, and is licensed. Against this asset, the Mother listed the Home Equity Line of Credit held by TD Bank in the sum of $214,733 as the Father’s liability.
153The other main asset is the Father’s business. Unfortunately, Camara GTI could not be properly valued, since the Father did not cooperate. As stated, the Mother retained Mr. Nagel, who reviewed the financial documents he had access to, including some banking records and some corporate tax returns. The Mother valued the business as being worth $400,000.
154In the Father’s financial statement, sworn July 21, 2022, he claimed that the business was worth $100,000 on the date of marriage (May 30, 2009), but he did not attribute a value as at the date of separation. The Mother observed that the Father grew his business into a successful enterprise over the course of the marriage. She noted that it earned revenues of about $900,000 in 2022.
155In the Father’s financial statement, sworn January 5, 2023, he confirmed that he is self-employed through Camara GTI. He again claimed that the business was worth $100,000 on the date of marriage but did not attribute a value as of the date of separation. He estimates that his net property value is about $759,000, but he has valued the Matrimonial Home higher than the Mother and assigned no value to Camara GTI.
156The remaining assets and liabilities attributed to the Father in the Mother’s NFP Statement are minor.
157The Mother’s assets consist only of modest bank account balances and no liabilities.
158The Mother listed the Father’s NFP at $1,123,379, comprised mainly of the Matrimonial Home and Camara GTI. She listed her NFP at $16,556.14. At trial, she corrected her NFP by adding in the Father’s value of Camara GTI of $100,000 as a date of marriage deduction. This results in an equalization payment owing by the Father to the Mother of $503,411.86.
Vesting Order
159The Mother seeks a vesting order transferring title in the Matrimonial Home held solely in the name of the Father to her, absolutely. She also seeks an order dispensing with the Father’s consent to sign documents effecting the transfer of title and ancillary orders.
160The Mother also proposes that in exchange for receiving sole title to the Matrimonial Home, the Father’s spousal support and equalization payment obligations will be fully satisfied. Furthermore, she will be responsible for the existing line of credit secured by the Matrimonial Home, which was the Father’s responsibility. The balance of the funds owed – being the child support, s. 7 expenses, and costs – would then remain outstanding and enforceable by way of a Support Deduction Order.
161In respect of the latter point, I adjourned the trial in order to permit the Mother to file a further affidavit reflecting the position of the TD Bank regarding its line of credit, should a vesting order be granted. The Mother filed a supplementary affidavit dated February 11, 2025, and attached to it an email confirmation by the TD Bank that it would not oppose a vesting order transferring title from the Father to the Mother absolutely.
162The court’s jurisdiction to order a vesting order derives from s. 100 of the Courts of Justice Act:
A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.
163Whether or not to issue a vesting order is within the discretion of the court: Lynch v. Segal, (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (Ont. C.A.), at para. 27; see also, Jamieson v. Jamieson, 2020 ONSC 6935, 50 R.F.L. (8th) 94.
164Pursuant to s. 9(1)(d) of the Family Law Act, R.S.O. 1990, c. F.3, the court can vest property in a spouse in satisfaction of an equalization payment:
(a) That if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life, or for a term of years
165Furthermore, the Family Law Act provides that the court may make, inter alia, a final order dealing with support by “requiring that property be transferred to or in trust for or vested in the dependent, whether absolutely, for life or for a term of years”: at s. 34(1)(c).
166In Lynch, at paras. 31-33, the Court of Appeal stated:
The rationale for the vesting power, therefore, is to permit the court to direct the parties to deal with property in accordance with the judgment of the court. The jurisdiction is quite elastic. Nothing in the language of either section 100 of the Courts or Justice Act or section 34(1)(c) of the Family Law Act operates to constrain the flexible discretionary nature of the power.
The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case..... [T]he onus is on the person seeking such an order to establish that it is appropriate. As a vesting order – in the family law context, at least – is in the nature of an enforcement order, the court will need to be satisfied…that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions ([citations omitted]. Thus the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.
In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order.
167The Mother submits that the Father owes her a total of $1,502,100, comprised of the equalization payment, child support, s. 7 expenses, and spousal support.
168According to the expert evidence of Mr. Parthenis, the fair market value of the Matrimonial Home as of August 2023 was $1,180,000. He then conducted a further appraisal and opined that the fair market value of the Matrimonial Home as at November 11, 2024 was $1,130,000, which is slightly lower than a few months earlier. As stated, there is an encumbrance against the Matrimonial Home in the form of the TD Line of Credit in the sum of $230,000 (including accrued interest). Therefore, the approximate equity remaining in the matrimonial home is about $900,000.
169The Mother adduced an extract of title for the Matrimonial Home into evidence.
170The equalization payment ($503,411.86), retroactive and post-application spousal support ($479,367), and lump sum spousal support ($66,417) owing by the Father totals $1,049,195.86, which exceeds the approximate equity remaining in the matrimonial home. In addition, the Mother agreed that she would be assuming the line of credit debt of about $230,000.
171The Mother’s proposal will account for any frailty in the evidence regarding the valuation of Camara GTI and a lack of evidence regarding the Father’s current debts and liabilities, all of which are attributed to the Father’s failure to comply with the financial disclosure orders. This is a fair and equitable result which gives priority to the child support obligations owed by the Father under this judgment.
172As well, the Mother and children have lived in the Matrimonial Home since the order granting her exclusive possession.
173The Mother has persuaded me that a vesting order is appropriate in the circumstances of this case for the following reasons:
(a) There is a payment liability on the part of the Father, and the amount has been quantified;
(b) The vesting order is necessary to ensure compliance with the monetary obligations set out in these Reasons, given the Father’s past litigation conduct (including his breach of court orders resulting in his Answer being struck) and leads me to find that the payment order will not likely be complied with without a vesting order; and
(c) There is a reasonable relationship between the value of the Matrimonial Home and the amount of the Father’s liability, and the TD Bank has advised that it will not oppose a vesting order.
174In addition, a vesting order transferring title in the Matrimonial Home from the Father to the Mother, absolutely, will enhance the likelihood of the child support being paid.
175Accordingly, I am granting a vesting order as requested and along with the ancillary orders necessary to effect the transfer of title in the Matrimonial Home from the Father to the Mother, absolutely.
The Divorce
176All of the requirements in the Divorce Act have been met. A divorce is granted.
Disposition and Costs
177The Application is granted.
178The following orders are made:
A divorce is granted;
The Respondent Father shall pay retroactive and post-application table child support for the period commencing June 5, 2017 to November 30, 2024 in the amount of $448,000;
The Respondent Father shall pay s. 7 expenses in the amount of $24,274.36;
Commencing December 1, 2024, the Respondent Father shall pay table child support for the children in the amount of $4,841 based on an imputed income of $400,000 to be reviewed when Jerome Jr. enters university;
Commencing December 1, 2024, the Respondent shall pay a share of the s. 7 expenses on a basis that is proportionate to his and the Applicant’s respective income, which is currently fixed at 68%;
A Support Deduction Order shall issue;
For as long as child support is to be paid, the Respondent payor must provide updated income disclosure to the Applicant each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Guidelines;
Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director;
The Respondent Father shall pay retroactive and post-application spousal support in the amount of $479,367;
The Respondent Father shall pay prospective lump sum spousal support in the amount of $66,417;
The Respondent Father shall pay the Applicant an equalization payment in the sum of $503,411.86;
A vesting order shall issue, transferring title in the Matrimonial Home (municipally known as 137 Mercury Road, Etobicoke, Ontario M9W 3H7) from the Respondent Father to the Applicant Mother, absolutely, in satisfaction of the spousal support payments (retroactive and prospective) and the equalization payment required in subparagraphs 9, 10, and 11 above;
The Land Registrar for Land Titles Division of Toronto shall accept and register the transfer conveying title to the Matrimonial Home; and
The Respondent Father’s signature on all transfer documents relating to the Matrimonial Home shall be dispensed with and the Applicant shall be permitted to sign any such documents to effect the transfer of title to the Matrimonial Home.
179The Applicant Mother seeks costs on a full recovery basis in the sum of $25,000.
180Costs on a full recovery basis is appropriate in this proceeding. The Respondent Father’s conduct in failing to provide full financial disclosure, in breach of court orders, prolonged this matter and increased the costs incurred by the Applicant. The Respondent’s conduct reaches the high threshold of bad faith.,
181I have examined the bill of costs and considered the factors set out in r. 24(12) of the Family Law Rules. The time incurred and hourly rates of counsel are fair and reasonable. The costs incurred are proportionate to the issues raised in this proceeding. While the issues were not particularly complex, there were a multitude of issues to be resolved.
182I am fixing costs as requested in the sum of $25,000. This amount is fair and reasonable in the circumstances of this proceeding.
183This costs order shall be enforced as support by way of the S.D.O.
184This Order bears interest at the rate of 5% per year on any payment or payments in respect of which there is a default from the date of default.
185A copy of these Reasons shall be served on the Respondent Father by way of regular mail to his last known residence and email.
Justice S. Vella
Released: May 14, 2025
CITATION: Mbaga-Katekyeza v. Katekyeza, 2025 ONSC 2886
COURT FILE NO.: FS-22-00029326
DATE: 20250514
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEILA MBAGA-KATEKYEZA
Applicant
– and –
MUZOORA JEROME KATEKYEZA
Respondent
REASONS FOR DECISION
Vella J.
Released: May 14, 2025
Footnotes
- In her affidavit, the Applicant deposed that over $1,000,000 should be imputed to the Respondent for this year. However, in submissions the Applicant took the position that $500,000 should be imputed and her accompanying DivorceMate calculations reflected this amount.
- There was a typo in this calculation from the Applicant. I have fixed the calculation in my findings from $479,493 to $479,367 at para. 140.