Smith v. Smith, 2025 ONSC 3262
Court File No.: FS-23-00037172
Date: 2025-06-04
Ontario Superior Court of Justice
Between:
Michelle Smith, Applicant
– and –
Kelburn Smith, Respondent
Heard: May 26, 2025
Judge: Shanthi Mathen
Introduction
[1] The parties had a one-day trial on the following issues:
a. How should the net family property be equalized and, in particular:
i. What is the net family property value of the two Jamaican properties held in the Respondent’s name?
ii. How should the contents in the above properties be valued?
b. What if any amount of equalization is owing?
c. How should the Respondent’s child support arrears be paid?
d. Should the Respondent take out additional life insurance to secure his child support obligations to the parties’ daughter?
e. Is the Applicant owed $2,000 for personal items left at one of the Jamaican properties?
f. Does either party owe costs to the other?
[2] The Applicant, Michelle, and the Respondent, Kelburn, married on October 18, 2003, and separated on October 27, 2020. They met in Canada when the Applicant did not yet have permanent resident status. They frequently travelled to Jamaica during the marriage. They have one daughter, K., who is now 18. She resides primarily with Michelle.
[3] Kelburn has five other children. He testified that he is paying $300 monthly child support for one child who has developmental disabilities. The child support is not paid pursuant to any court order.
[4] The parties’ 2024 income is $97,883.28 for Michelle and $67,737 for Kelburn.
[5] Prior to trial, the parties agreed that Kelburn shall pay ongoing table child support based on his 2024 income. The amount of that support is $631. The parties also agreed that Kelburn owes child support arrears of $14,035.
[6] At trial, the parties agreed that:
a. The date of separation value of Jamaican Property “A”, purchased prior to marriage, is $116,767.07. Note that Kelburn says this property ought not to be subject to equalization.
b. The date of separation value of Jamaican Property “B”, purchased after marriage is $14,030.52.
c. Kelburn, who has six children, has a life insurance policy worth $435,000. K. is currently entitled to receive 23% from this policy in the event of Kelburn’s death.
d. Section 7 expenses shall be shared as follows: 60% for the Applicant and 40% for the Respondent.
[7] The parties represented themselves.
Brief Conclusion
[8] Kelburn owes an equalization payment, which he shall have six months to pay. Michelle has not established, on a balance of probabilities, a date of separation value for the household contents. Kelburn’s child support arrears will be paid on a monthly basis. Kelburn need not purchase additional life insurance for their daughter, but he must ensure that K.’s designation as beneficiary is irrevocable. Michelle’s request for $2,000 for personal effects is dismissed. The parties shall bear their own costs.
[9] In addition to the above, orders shall issue for ongoing child support and contributions to K.’s section 7 expenses for so long as K. is a child of the marriage unable to withdraw from her parents’ support.
Analysis
[10] The following analysis contains my findings of fact.
[11] The parties each gave evidence in chief and cross-examined each other. Both tended to stray into areas that were not relevant. There was, for example, a lot of argument over how the parties met, when exactly Michelle obtained status in Canada, her work history at the beginning of the relationship, her contributions to the parties’ household finances, and both parties’ relationships with other people. Since spousal support is not an issue, the parties have agreed that Kelburn shall pay table child support, and neither party argued for unequal division of property, none of this information was necessary.
[12] All amounts in this decision are in Canadian dollars (CAD).
Issue One: Equalization
The Law
[13] Section 4(1) of the Family Law Act, RSO 1990, c F.3, provides the following about net family property:
“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage;
“property” means any interest, present or future, vested or contingent, in real or personal property[.]
[14] In this case, the valuation date is the date the parties separated with no reasonable prospect of reconciliation: FLA, s. 4(1).
[15] Net family property excludes:
- Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
- Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
- Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
- Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, RSO 1990, c I.8, that are payable on the death of the life insured.
- Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
- Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
- Unadjusted pensionable earnings under the Canada Pension Plan, RSC 1985, c C-8.
FLA, s.4(2).
[16] The person wishing to prove a deduction or exclusion from net family property bears the onus of proving that deduction or exclusion: FLA, s.4(3).
[17] Net family property is to be equalized, unless that would be “unconscionable” having regard to:
(a) a spouse’s failure to disclose to the other spouse’s debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
FLA, 4(6).
[18] A “matrimonial home” is any property located in Ontario that at the time of separation was ordinarily occupied as a family residence: FLA, s.18(1), s. 28(1).
i. What is the net family property value of the two Jamaican properties held in the Respondent’s name?
[19] There are two Jamaican properties held in the Respondent’s name. One, Property “A”, was purchased shortly before marriage. The other, Property “B”, was purchased after marriage.
[20] The parties’ respective net family property statements show the same value for the properties: Property A $122,767.07 CAD; and Property B $14,030.52 CAD.
[21] Kelburn, however, believes that Property A should not be included at all because:
a. He purchased it before marriage;
b. The property was intended to be the parties’ retirement property, a plan that Michelle destroyed when she ended the marriage;
c. Michelle made no contributions to the property;
d. Michelle wrongly designated the property, which is located outside of Ontario, as a matrimonial home.
[22] Michelle disputes that she made no contributions to the property. She submitted into evidence several receipts sent to a contractor for renovations.
[23] I find that Kelburn’s arguments rest on a misunderstanding created, in part, because the NFP statements designate Property A as a “matrimonial home”. Kelburn is correct that because Property A is located outside Ontario it is not a matrimonial home.
[24] However, under the Family Law Act, Property A’s value must be equalized regardless of whether it is a matrimonial home. The key question is whether it was “property” owned by either party, or both of them, during the marriage. Kelburn did not offer any evidence that the property falls into one of the categories excluded under section 4(2). Thus, the property must be included.
[25] While Kelburn clearly feels aggrieved that Michelle could be entitled to half of the home’s increase in value, there is no legal basis to deprive her of that value.
[26] The parties agree that the property’s value on the date of marriage was $6,000. The increase in value over the marriage owes largely to the addition of a new house.
[27] Therefore, the value of Property A on the date of separation is $116,767.07.
ii. How should the contents in the above properties be valued?
[28] The parties disagree on the value of the contents of Property A. Michelle testified that she purchased most of its furnishings, including appliances. Kelburn disputes that, but he concedes that at least some furniture was shipped from Canada.
[29] The contents of a house can be net family property.
[30] The separation date value is the fair market value of the property on that date. It is irrelevant what the original purchase price was (except to the extent that might affect fair market value), or what it would cost to replace the furniture.
[31] Michelle offered receipts to show that she made some purchases for Property A. However, she did not provide an itemized list of the home’s contents. Nor did she provide evidence of their value on the date of separation.
[32] I am concerned about possibly double counting the appliances. It is unclear to me whether the appraised value of Property A includes them. There is no evidence before the Court about whether, as happens in Canada, residential real estate in Jamaica generally includes appliances.
[33] In her evidence in chief, Michelle acknowledged that she did not research how a sale of the furnishings might proceed. She did not obtain a professional appraisal of their current value. She said that the furnishings are of high quality and, because they were shipped from Canada, have increased value in Jamaica. Michelle did not depose to having the expertise to offer this opinion, nor did she have corroborating evidence for it.
[34] Kelburn has suggested that Michelle simply retrieve any of the contents she purchased. Michelle testified that, because Kelburn’s family and girlfriend have been living in the property, she does not want to do that. However, she has not even investigated the state of the contents. This weakens the reliability of her statements about their value.
[35] Michelle initially asked that the contents be valued at $13,000. At trial she lowered that to $10,000. While I am satisfied that she contributed to some of the furnishings in Property A, I find her date of separation valuation ad hoc and unsupported by the evidence.
[36] Michelle’s request is therefore dismissed.
Issue Two: What if any equalization is owing?
[37] The parties did not present comparative Net Family Property Statements. At trial, their statements show that Kelburn owes Michelle either $41,385.98 (his calculation) or $73,448.00 (her calculation).
[38] Kelburn states his debts are $57,558.13. Michelle claims this is inflated. She points to several receipts that, she says, show that several of the debts were incurred after the date of separation. Kelburn disputes this, except for one debt owing to Money Mart for $7,000. Kelburn acknowledges that this amount was wrongly included.
[39] The receipts Michelle offered were unclear and do not show that on the date of separation Kelburn did not have the other debts that he says he did.
[40] Kelburn acknowledged that he owns a truck in Jamaica, which he did not include in his household goods table. In her cross-examination of him, Michelle did not ask for a value for it. She has provided values for three vehicles that Kelburn owns. Kelburn did not provide any values for any vehicles. I find that it is appropriate to draw a negative inference from his failure to list any personal property in his statement. I am persuaded that it is appropriate to use Michelle’s value for Kelburn’s personal property which, excluding the contents of Property A, is $14,196.00.
[41] In consequence, the parties’ net family property is calculated as follows. Where neither party disputed the other’s amounts, I have used them.
| Category | Michelle | Kelburn |
|---|---|---|
| 4a: Land | $0 | $122,767.07 (Ppty A) + $14,030.52 (Ppty B) = $136,797.59 |
| 4b: Household Items and Vehicles | $10,252.00 | $14,196.00 |
| 4c: Bank Accounts etc. | $111,070.07 | $105,240.33 |
| Total Property | $121,322.07 | $256,233.23 |
| 5: Debts | $27,295.63 | $50,588.13 (7K for Money Mart removed) |
| 6. Property owned on DOM | $0 | $6,000 (Ppty A) |
| 7. Excluded Property | $0 | $0 |
| Total Debts, etc | $27,295.63 | $56,588.13 |
| NFP | $94,026.44 | $199,645.10 |
| Owing from | $0 | $52,809.33 |
[42] I am satisfied that the bulk of Kelburn’s current savings is an RRSP. He shall have until December 1, 2025, to make the equalization payment.
Issue Three: How should the Respondent’s child support arrears be paid?
[43] The parties agree that Kelburn owes $14,035 in child support arrears. They disagree on how it should be paid.
[44] Michelle requests that the money be paid in two installments. She did not testify to any current financial hardship. That said, she has been carrying the lion’s share of child support for years.
[45] Kelburn requests that the money be added to his monthly support obligation.
[46] An order shall issue that Kelburn pay the arrears in monthly installments of $250.
Issue Four: Should the Respondent take out additional life insurance to secure his child support obligations to K.?
The Law
[47] Section 34 of the Family Law Act permits a court to require that a spouse who has a policy of life insurance as defined under the Insurance Act, R.S.O., 1990 c. I.8, designate the other spouse or a child as the beneficiary irrevocably.
Evidence and Findings
[48] Michelle wants Kelburn to have sufficient life insurance to cover K.’s ongoing child support and post-secondary education expenses.
[49] Kelburn currently has a life insurance policy for his six children. K. is entitled to 23% of the payout. Given Kelburn’s evidence, which Michelle did not dispute, I am satisfied on a balance of probabilities that in the event of his death, K. would receive at least $100,000.
[50] K. is 18 years old and in her final year of high school. Michelle testified that K. is set to begin a four-year degree in fashion at Toronto Metropolitan University. Her tuition is expected to be around $18,000 per year.
[51] In her request, Michelle did not account for the fact that she and Kelburn are to share in section 7 expenses proportionate to their incomes.
[52] Kelburn asks, reasonably, why Michelle has no life insurance policy for K.
[53] Michelle did not offer the court a precise figure for the requested insurance. She simply wants “enough to cover the expenses fully.”
[54] Kelburn says he is willing to pay an additional $50 per month towards life insurance for K. However, it was for Michelle to present evidence about what range of premiums would be required, which in turn would depend on making an argument about the specific amount and duration of the policy. The court cannot simply pick an amount.
[55] I am not persuaded that K. requires additional insurance. There is no evidence that her child support and post-secondary contributions from Kelburn is likely to exceed $100,000.
[56] K. is 18 and there is no evidence that she is not competent to manage her own affairs. I find it unnecessary to require that Kelburn take out life insurance payable to Michelle rather than K.
[57] However, it appears that Kelburn’s existing insurance policy is revocable. Kelburn must designate K. as an irrevocable beneficiary for so long as K. is entitled to receive support as a child of the marriage.
[58] Should it not be possible to amend the existing policy of insurance so that K. is designated an irrevocable beneficiary, that will constitute a material change entitling Michelle to seek a variation of this order.
Issue Five: Is the Applicant owed $2,000 for personal items she left at one of the Jamaican properties?
[59] Michelle testified that her personal effects, like clothing and beauty tools, remain at Property A in Jamaica. Kelburn says he has offered for Michelle to retrieve these items. Michelle confirmed that she has declined. I believe that she is discomfited by the fact that Kelburn’s girlfriend may have used the items. Kelburn testified that the two women are not the same size, that very few of Michelle’s things remain at the house, and that those things are untouched.
[60] Michelle did not have an itemized list of her things. She has no receipts or other evidence to show their value. She claims they are worth $2,000. It is unclear whether that amount is a date of separation value or a replacement value.
[61] In response to questions from the court, Michelle was unable to point to a provision in the Family Law Act or other legislation entitling her to cash compensation for things she left in a property the couple used to occupy while married. Michelle did not testify that Kelburn wrongly kept the items from her. Michelle did not allege that Kelburn committed a civil wrong entitling her to damages.
[62] Michelle has not established on a balance of probabilities that Kelburn owes her $2,000. Therefore, the claim is dismissed.
Issue Six: Does either party owe costs to the other?
[63] The parties were self-represented at trial and enjoyed divided success. They did not follow court instructions, such as preparing draft orders prior to trial. They shall bear their own costs.
Order
[64] In conclusion, I make the following order:
a. Commencing June 15, 2025, and continuing on the 15th day of each month that follows, Kelburn Smith shall pay child support to Michelle Smith for K. Smith, born on January 22, 2007, in the amount of $637 in accordance with the Tables under the child support guidelines based on Kelburn Smith’s annual income of $67,737.
b. As of June 1, 2025, the support arrears owed to Michelle Smith by Kelburn Smith are fixed in the amount of $14,035. Kelburn Smith shall pay $250 per month to Michelle Smith on account of those arrears commencing June 15, 2025, and continuing on the 15th day of each month that follows until the arrears are paid in full.
c. A support deduction order shall issue for the ongoing table child support and for the ongoing payments on account of child support arrears.
d. Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
e. For so long as K. is entitled to child support, the parties shall share in extraordinary and special expenses in the following proportions: Michelle (60%); Kelburn (40%). The anticipated section 7 expenses are post-secondary education, for which any existing Registered Education Savings Plan shall be used first.
f. Beginning in 2026, for every year that K. is entitled to child support, the parties shall exchange notices of assessment no later than July 1st so that any ongoing child support may be adjusted in accordance with the Child Support Guidelines.
g. There shall be a review of ongoing child support, including special and extraordinary expenses, no later than August 1, 2031. This date will allow K. to finish her university degree.
h. By December 1, 2025, the Respondent Kelburn Smith shall pay a lump sum equalization payment to the Applicant Michelle Smith of $52,809.33. The payment terms in this clause may be altered on the written consent of both parties.
i. For clarity, the Applicant’s claim to include for the purposes of equalization the property located in Jamaica, which the Respondent purchased before marriage and is known as Property A, is granted subject to the court’s adjustment of the date of separation value as set out in the reasons for this decision.
j. For clarity, the Applicant’s claim that the value of the household contents in Property A be included in the Respondent’s property subject to equalization is dismissed.
k. The Applicant’s claim that the Respondent, Kelburn, take out life insurance for K. is granted in part:
i. The Applicant’s request that Kelburn take out additional life insurance is dismissed.
ii. For so long as Kelburn is obligated to pay child support to Michelle in accordance with this Order, he shall:
- keep the policy with the number 10*80001987 (“the policy”) in force;
- not borrow against the policy and ensure that the policy remains unencumbered; and
- irrevocably designate and maintain K. as the beneficiary of 23% of the proceeds of the policy.
iii. Within 60 days, Kelburn shall provide Michelle with a copy of the policy that conforms to this Order.
iv. Should it not be possible to amend the existing policy of insurance so that K. is designated an irrevocable beneficiary, that will constitute a material change entitling either party to seek a variation of this provision.
l. The Applicant’s claim that the Respondent pay her $2,000 on account of any personal effects belonging to the Applicant that remain at Property A is dismissed.
m. Neither party owes costs to the other.
n. Either party may submit for my signature a draft Order that contains the above provisions (a) through (m).
Shanthi Mathen
Released: June 04, 2025