Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARY JANE CIALINI Applicant
- and -
ENZO CIALINI Respondent
COUNSEL: N. Hussain and L. Natalizio, for the Applicant K. Larsen, for the Respondent
HEARD: January 9, 10, 13, 14, 15, 16, 17, March 17, April 2, May 22, June 18, 2025
REASONS FOR DECISION
Shaw J.
1. Introduction
1The parties were married for 26 years at the time of their separation in January 2018. They have two adult daughters who were 22 and 18 years of age at the time of separation and are now 30 and 27 years of age. Ms. Cialini was 48 years of age when the parties separated; she is now 56 years of age. Mr. Cialini was 49 at the time of separation; he is now 57 years of age.
2Sadly, this family has been embroiled in litigation for several years which has no doubt taken a toll emotionally, mentally and financially. Litigation that lingers for seven years after spouses separate causes more trauma to the family.
3The issues in dispute are the basis for entitlement to spousal support, quantum of spousal support and equalization of net family property. There are several other disputed issues that flow from these main issues which will be identified and addressed in these reasons.
4As this matter did not proceed to trial until seven years after the parties separated, there are also issues with respect to post-separation adjustments in connection with the support paid and support which ought to have been paid.
5Many of the issues in dispute are connected to the roles the parties assumed during the marriage and what, if any, agreement there was about Ms. Cialini not working throughout the marriage and her efforts to look for work both pre- and post-separation. Based on the length of the marriage, roles assumed during the marriage, and employment or lack thereof during the marriage, Ms. Cialini’s entitlement to spousal support is not an issue. There is, however, a dispute about whether Ms. Cialini is entitled to compensatory or non-compensatory support.
6Ms. Cialini works part-time as a clerk at a clothing store. Mr. Cialini argues that an income should be imputed to her. If I find that an income should be imputed to Ms. Cialini, her position is that it should be for full-time hours at minimum wage rates commencing in January 2023. Mr. Cialini argues a higher income in the range of $30,000 to $50,000 should be imputed to her commencing on the date of separation.
7There are several issues in dispute with respect to Mr. Cialini’s income and the quantum of spousal support. First, because there has been a significant increase in Mr. Cialini’s income post-separation, there is an issue about whether support should be based on his actual earnings or on an average of his earnings prior to the separation. Second, depending on my finding with respect to the first issue, there may be a dispute about whether the Spousal Support Advisory Guidelines (SSAG) should be used in determining the quantum of spousal support in the years Mr. Cialini earned more than $350,000. There are also issues about whether Restricted Stock Units (RSU’s) granted to Mr. Cialini should be included in his income and whether certain rental deductions he claimed should be included income.
8There are no parenting or ongoing child support issues as the children are adults who work full-time, although they both continue to live with Ms. Cialini.
9Ms. Cialini argues that both spousal and child support are to be determined retrospectively to the date of the October 2019 interim separation agreement. If an amount is owing, the parties cannot agree on to calculate the after-tax lump sum amount.
10Most of the property issues have been resolved as the parties have agreed on the value of their assets and debts. There are only two property issues in dispute. The first is whether their pensions should be divided at source or equalized through the net family property process. The second is whether both parties can deduct notional disposition costs in connection with a rental property they owned in Hamilton on the date of separation that was transferred to Mr. Cialini post-separation.
2. Background
11The parties were the only witnesses who testified during this trial.
12Ms. Cialini attended college for one year and graduated with a certificate in medical transcription in 1991. She was working in that field when she and Mr. Cialini married in June 1992. Her only other work experience was as a cashier at Walmart for five years.
13Ms. Cialini continued to work after the marriage as a medical transcriptionist until their first daughter, A, was born in 1995. Following A’s birth, the parties agreed that Ms. Cialini would stay home full-time to care for her. They also agreed that Ms. Cialini would continue to stay home after their second daughter, L, was born in 1998.
14Ms. Cialini worked for approximately one year following A’s birth on a part-time basis, in the evenings, doing contract medical transcription work for her former employer. The work ended as she found it too difficult to care for A and the home while working. She also applied for some jobs when the children were in high school but says she was not offered any employment at that time. Mr. Cialini recalls that she had a job offer in 2017 that she declined. Ms. Cialini does not recall this offer.
15The parties do not agree on whether it was a joint decision for Ms. Cialini to remain at home when the children were in school full-time. According to Ms. Cialini there was never any discussion about her returning to work whereas Mr. Cialini says there was and her failure to look for and find employment was a source of stress in their marriage.
16After graduating from university in 1991, Mr. Cialini was hired by IBM, and he has worked there since. He testified about the various positions he held at IBM both during and after the marriage. While his income increased throughout the marriage, there were more significant increases after the parties separated.
17Mr. Cialini was required to travel for his work. There is a dispute about the amount he travelled although the parties agree that the amount of travel increased during the marriage.
18The parties assumed what are considered to be traditional roles in the home during the marriage. Ms. Cialini did the daily work inside the home and cared for the children. Mr. Cialini did the exterior work, repairs, and took care of the family finances. Ms. Cialini testified that when Mr. Cialini was not at work, he was an involved and loving father who helped care for the children. For the most part, Mr. Cialini’s evidence about his role in the home is consistent with Ms. Cialini’s description of his role although he describes being somewhat more involved with the daily care of the children.
19Both children attended university. Their education was paid for with funds the parties saved during the marriage. Both children returned to live with Ms. Cialini when they completed their education and continue to live with her in the matrimonial home. While both work full-time, they do not pay for any of the expenses associated with the home. Ms. Cialini does not charge them rent and pays for all groceries. They now pay for their own cars, phones, credit cards and clothing, although there was a period post-separation where the parties continued to pay those expenses as they had pre-separation.
20In 2022, Ms. Cialini found part-time work in retail. Her earnings have been modest. There is a dispute about whether Ms. Cialini made any meaningful or timely efforts to become self-sufficient through retraining or finding employment both during the marriage and after the parties separated. Mr. Cialini argues that she should have used the COVID-19 period to upgrade her education and skills to achieve self-sufficiency. Ms. Cialini points to the numerous jobs that she has unsuccessfully applied for and the reality of the difficultly encountered by a woman of her age trying to find employment given her limited training, work history, and years out of the workforce.
21Post-separation, Mr. Cialini’s career has flourished, and his income has increased significantly from approximately $247,000 in 2017 to approximately $500,000 in 2025. According to Mr. Cialini, his position at IBM changed after the parties separated. His evidence is that his new role is a departure from his previous positions at IBM and he achieved this new role through his efforts and the training and education he pursued post-separation. He argues that his new role at IBM is in no way connected to his work at IBM during the marriage nor the result of any contribution made to his career by Ms. Cialini through her efforts in the home and caring for the children. He argues that she should therefore not share in the post-separation increases in his income.
22For approximately seven months after the parties separated, Mr. Cialini continued to deposit his pay cheque into their joint bank account and Ms. Cialini accessed those funds to support herself and the children, as she had during the marriage. The financial status quo continued and there was no separation of the intermingling of their financial relationship. In or around July 2018, Mr. Cialini changed the arrangement and separated their financial affairs. He ceased depositing his entire pay into the joint account and began to deposit varying amounts of his pay each month, according to Ms. Cialini, or 30 percent of his net pay according to his testimony. This arrangement continued until October 2019 when the parties entered an interim separation agreement, effective September 1, 2019, that dealt with the issues of interim child and spousal support and some property issues. (In my view, the parties would have reached a quicker and more cost-effective resolution had they continued negotiations leading to a final separation agreement rather than this mentally, emotionally and financially draining trial.)
23Mr. Cialini argues that he overpaid support between January 2018, the date of separation, and September 2019, the effective date of the interim separation agreement. He seeks a review and reconciliation of funds spent during those 20 months and a retroactive adjustment and credit for what he alleges was an overpayment of support.
24Based on the conflicting evidence I heard, this is a very difficult exercise to engage in seven years later when the parties do not agree on how much was spent, by whom, and for what. Essentially, the court is being asked to embark on a tracing exercise of funds deposited and withdrawn from their joint bank account. The evidentiary record to embark on this exercise is compromised as Ms. Cialini was first told of this claim at the trial management conference conducted in January 2023. I will have more to say about that later in these reasons. Due to the late notice of this claim, records were not maintained as they might have been had Ms. Cialini been aware at the time that Mr. Cialini was going to request an accounting and reconciliation of how funds were spent during the period in dispute.
25Ms. Cialini does not seek any child or spousal support between the date of separation and the interim separation agreement unless this reconciliation and analysis of their financial arrangement is undertaken.
26Pursuant to the interim separation agreement, Mr. Cialini agreed to pay interim spousal support of $7,000 per month to Ms. Cialini commencing September 1, 2019. He continues to pay that amount. The agreement does not set out the incomes used as the basis for that quantum of support.
27According to the agreement, Mr. Cialini was to pay 100 percent of L’s tuition and Ms. Cialini was to pay the balance of her post-secondary expenses including L’s books, tutor, if needed, and food and sundry items. The parties also agreed to share equally the children’s cell phone expenses, vehicle expenses, including insurance, and any other expenses that they agreed to in writing.
28Ms. Cialini testified that pursuant to the agreement, she spent $500 per month on food and other items for L. L would pay for her books and food on her credit card and Ms. Cialini would then pay the credit card bill.
29The interim separation contemplated that either party could seek an adjustment of the spousal and child support. Both parties therefore request that I determine the quantum of child and spousal support that ought to have been paid commencing September 1, 2019, to the date of trial and then going forward.
30According to the interim separation agreement, the parties agreed that Ms. Cialini would continue to live in the matrimonial home until April 30, 2020, at which time it was to be sold as that was when L would be done university. Ms. Cialini agreed to pay the utilities and regular maintenance expenses. The parties agreed to equally pay the property taxes, home insurance and major repair costs. Fortunately, the mortgage was paid in full during the marriage.
31The parties also agreed that Mr. Cialini would have an opportunity to purchase the matrimonial home for fair market value prior to April 30, 2020.
32In April 2020, due to the COVID-19 pandemic, the parties agreed that the house would not be put on the market.
33Although the parties have agreed to sell the matrimonial home, which has an estimated value of $1,600,000 to $1,800,000, it has not yet been listed for sale. They accuse each other as being responsible for the delay in listing the home for sale. There is a dispute about who wanted or did not want it sold and what if any efforts were made, or not made, to sell the home. There is also a dispute whether Mr. Cialini was denied access to his share of the equity in the home when Ms. Cialini denied his request to register a line of credit against the home, that he would pay, so that he could fund his purchase of Ms. Cialini’s share of a rental property they owned in Hamilton.
34Mr. Cialini is asserting a claim for occupation rent that Ms. Cialini opposes.
35Mr. Cialini has lived with his mother in Hamilton since the separation. Post-separation he purchased Ms. Cialini’s 50 percent interest in the Hamilton rental property. He has also purchased an interest in a property in San Francisco with co-workers and assisted his girlfriend with purchasing a home in Texas. Although he has a legal interest in that property, he argues that he holds it in trust for his girlfriend.
36Ms. Cialini is aware that she does not have a claim to either property purchased post-separation. She argues that Mr. Cialini’s ability to invest in other properties while she has encroached on her capital is relevant to the issue of their respective life-styles post-separation which is a factor in determining the appropriate quantum of ongoing spousal support.
37In January 2017, the parties purchased the Hamilton property for $600,000 and rented it to seven students. L also lived there when she attended university. Mr. Cialini took care of the finances for the property but they both managed it to some degree. Ms. Cialini testified that her managerial responsibilities increased after the parties separated as Mr. Cialini was often away travelling for work. She dealt with the tenants and various repair work that was needed.
38According to the interim separation agreement, the parties agreed to list the Hamilton property for sale in April 2020. They also agreed that Mr. Cialini could purchase Ms. Cialini’s interest in the property prior to April 2020. Pending its sale, they agreed that the rental income would be used to pay expenses, and they would be jointly responsible for any shortfall. They also agreed to equally pay for any major repairs or expenses provided that both parties consented in advance in writing.
39Following Ms. Cialini’s motion to sell the property in August 2021, Mr. Cialini purchased her 50 percent interest in it for $125,000 in December 2021. Ms. Cialini paid tax on that amount as it was a taxable capital gain for tax purposes. There is a dispute concerning the claim for the deduction of the notional disposition costs associated with each parties’ interest in that property.
40Both parties had employment pensions at the time of separation. Mr. Cialini’s pension was sizeable. After the matrimonial home, it was the asset with the highest value on the date of separation. Ms. Cialini has a small employment pension from the four years she worked. Mr. Cialini argues that the pensions should be divided at source whereas Ms. Cialini wants them equalized in the net family property process.
3. Issues to be Determined
41The following are the issues that I will address in these reasons:
i) The basis for Ms. Cialini’s entitlement to spousal support.
ii) Whether an income should be imputed to Ms. Cialini.
iii) A determination of the income to use for Mr. Cialini post-separation and whether spousal support should be paid based on his actual earnings or on some other amount that does not include the increases in his post-separation income.
iv) Whether the SSAG should be used to determine spousal support for the years that Mr. Cialini earned more than $350,000.
v) The quantum of ongoing spousal support.
vi) Whether there should be an adjustment for spousal and child support paid between the date of separation and the date of trial and if so, the quantum of support that ought to have been paid during that period.
vii) Whether any amount is owing for occupation rent.
viii) Whether the parties’ employment pensions should be divided at source or be equalized.
ix) Whether the parties can claim notional disposition costs in connection with the Hamilton rental property.
42As a roadmap to these reasons, I will review the evidence that is relevant to each issue and the applicable legal principals, followed by my analysis and findings.
1. Issue One – What is the Basis for Entitlement to Spousal Support?
i) Review of the Evidence
43I find that the parties had a traditional long-term marriage. Mr. Cialini does not agree with that description of the marriage for two reasons. First, he says that despite working full-time, he was an equal parent caring for the children and assuming responsibilities in the home. Second, he argues that Ms. Cialini did not suffer an economic disadvantage because of the marriage nor did she subordinate a career in favour of his. I reject both these arguments for reasons set out below.
44Other than a brief period of part-time work from the home when A was an infant, Ms. Cialini did not work outside the home throughout the marriage. On the date of separation, she had not been employed outside the home for approximately 23 years and had no computer skills. She testified that she was responsible for all work in the home including grocery shopping, cooking and cleaning. She was responsible for caring for the children full time. When they were in school, she drove them to and from school as they were not in the school bus jurisdiction. She drove them to their activities and medical appointments. She also volunteered at their school.
45Ms. Cialini does not dispute that in the evenings after work and on weekends Mr. Cialini was involved with the children and that he shared equally in their care when he was home. She testified that he was a good father. He helped bathe the children when they were younger, attended parent-teacher interviews and school functions, helped with their homework, and would go to their activities if scheduled in the evenings.
46Mr. Cialini agreed that there was a traditional division of labour in the home. According to Mr. Cialini, despite working fulltime, he shared the responsibility for caring for the children when he was not working. He also did the exterior work around the home and helped with some of the interior work such as cleaning.
47While there is little dispute about the roles assumed during the marriage with respect to childcare and work around the home, there is a dispute about whether it was a joint decision for Ms. Cialini not to work outside the home when the children were in school full-time.
48Mr. Cialini’s evidence was that the parties struggled financially and that once the children were in school full time, he wanted Ms. Cialini to return to work; he did not agree with her staying home. He testified that when Ms. Cialini worked briefly from home after A was born, he supported her by helping her to set up a home business and looked after A in the evening so she could work.
49He also helped Ms. Cialini prepare her CV in 2013 so she could look for a job. Ms. Cialini agreed that her CV was drafted in 2013, but she could not recall if she applied for any jobs. She assumes she did. She agreed with the suggestion that she did not make a sincere effort to find a job that year.
50Mr. Cialini also testified that had Ms. Cialini worked, they would have been in a better financial position as they could have paid off the mortgage sooner and invested more in their savings.
51According to Mr. Cialini, when he would raise the issue of Ms. Cialini returning to work, approximately every four to five months, she would agree but then not take any meaningful steps towards finding work. Mr. Cialini says this was a source of stress during their marriage. According to Mr. Cialini, he wanted Ms. Cialini to work so that she could interact with other people and “grow”.
52Mr. Cialini testified that Ms. Cialini applied for two jobs in 2017 and was offered one that she turned down. Ms. Cialini did not recall this. She recalled applying for two jobs but did not recall going for an interview or being offered a job. She agreed that it was reasonable that if she had been offered a job, the likely salary was approximately $30,000. According to Mr. Cialini, she also turned down a volunteer position at Credit Vally Hospital.
53The parties agree that there were issues in the marriage that started around 2015. They separated briefly in 2017 but do not agree on the length of that separation. Mr. Cialini left the home. Ms. Cialini said it was one week whereas Mr. Cialini said it was one to two months. Mr. Cialini argues that when they were having marital issues, Ms. Cialini ought to have re-focused her efforts on finding a job.
54Ms. Cialini has a different recollection of whether Mr. Cialini told her that he wanted her to work. Her evidence is that she and Mr. Cialini agreed that she would remain at home and there was never any discussion about her returning to work. She testified that they considered the cost of daycare as compared to her earnings. She also did not want anyone else raising their children. When the children were in school, they never discussed enrolling them in before and after daycare programs.
55She testified that Mr. Cialini was supportive of whatever decision she made – either staying home or looking for work. Ms. Cialini testified that there was never any discussion or argument about her returning to work, nor was it a source of stress in their marriage.
56Ms. Cialini testified that when the children were in school full-time, she thought about returning to work as a medical transcriptionist but did not pursue it as she was looking after the home and children full time. When their daughters were in high school, she applied for about five jobs but was not offered any interviews. Ms. Cialini also testified that she did not want to work in the evenings as that was their family time, and she wanted to be home.
57Given her years away from the medical field and unfamiliarity with changes to medical terminology, Ms. Cialini does not think she will be able to resume working as a medical transcriptionist. In my view, it is likely that her lack of computer skills will also be a barrier.
58Ms. Cialini does not agree with Mr. Cialini’s evidence that there were financial pressures that would have been relieved had she worked. According to Ms. Cialini, they enjoyed a comfortable lifestyle throughout the marriage.
59Mr. Cialini was required to travel for his job. Ms. Cialini testified that when their daughters were in elementary school, Mr. Cialini’s travelling increased as he began to travel more often and for longer periods. Some of his trips involved international travel and he could be gone for one to two weeks. Ms. Cialini testified that there were times near the end of the marriage that he would get home from one work trip and leave the following day for his next work trip. At one point, because he was away so much, someone was hired to do some of the outdoor work he used to do.
60Mr. Cialini testified that commencing in 1994, he began travelling for work. Between 1994 and 2015, he travelled a couple of days to one week every quarter. In 2015, his travel increased to, on average, six days per month due to his new role at work. At that time, A was in her third year of university and L was in grade 12. He agreed that he travelled internationally but said it was at most twice per year.
61Ms. Cialini testified that she always supported Mr. Cialini’s career and was proud of him. When he was writing a book, she would take the children out of the house so that it was quiet as he wrote. She testified that his job was demanding and he would work in the evenings after the children went to bed. She agreed that she resented the amount of travelling he did later in the marriage.
62According to Ms. Cialini, she was heartbroken and destroyed when their 25-year marriage ended. She saw a therapist to help her cope with the separation and for other health issues. She continues to see that therapist. No medical or other evidence was led that Ms. Cialini was or is unable to work due to any health issue.
63Ms. Cialini also testified that after the separation, she had to take care of the Hamilton rental property as Mr. Cialini was often away for work. She had to deal with various tenant and property issues connected with the property. This was the focus of her energy at the time, in addition to coming to terms with the separation.
64In 2019, Ms. Cialini applied for several jobs at retail stores and doctors’ offices. She had two interviews, but no job offers. Because of her unsuccessful efforts to find employment and her years out of the workforce, she decided to volunteer at a gift shop in a hospital to gain some experience.
65The COVID-19 pandemic in 2020 interrupted her volunteer work and job search. She also testified that working from home during that time was not an option as she did not have a computer or computer skills.
66In May 2022, Ms. Cialini found a job working at Home Sense. She worked there until September 2022 and then started to work at Zaks, another retail store, as a salesclerk. She generally works 15 hours per week but works additional hours when offered to her.
67Ms. Cialini testified that she continues to apply for fulltime work, primarily in retail and medical offices. She has applied for 348 jobs since the date of separation. She has had two interviews, but no job offers. Evidence was filed of her job search.
68Both A and L continue to live with Ms. Cialini in the matrimonial home. They both work full time. They have free room and board as they do not pay rent. Their post secondary education costs were paid for by the parties. A had graduated when the parties separated and was working and living at home. When L was in university, she lived in the rental property in Hamilton and came home on weekends and during the summer. She has lived with Ms. Cialini since she graduated in 2020.
69Both parties testified about their lifestyle during the marriage. They went on vacations twice per year and travelled on some weekends. They also travelled internationally. One year they travelled to Italy for two weeks. They travelled twice to Hawaii. Other trips included California, Arizona, New York and Florida for Disney. According to Ms. Cialini, they stayed at 5-star accommodations and cost was not a concern. Mr. Cialini does not dispute the trips but denies the extravagance of their accommodations.
70During the marriage, they paid off the mortgage on the home, purchased an investment property in Hamilton, invested in RRSPs, and saved to pay for both daughters’ post-secondary education expenses. They also made improvements to the home; for example, they installed an outdoor pool.
71In my view, they lived a comfortable but not extravagant lifestyle that was commensurate with Mr. Cialini’s increasing income over the years.
72Ms. Cialini says her lifestyle has suffered since the separation. She worries about her finances as she has had to encroach on her capital to meet her needs. Since the separation, she has been on one trip to the Bahamas with her daughter in 2018 and travelled once to Collingwood and once to Niagara Falls.
73When the matrimonial home sells, Ms. Cialini plans to use her share of the proceeds of sale to purchase a smaller home. She anticipates that her daughters will move out at that time.
ii) Legal Framework
74While there is no dispute that Ms. Cialini is entitled to spousal support, there is a dispute about whether she is entitled to compensatory or non-compensatory support.
75Pursuant to s. 15.2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the court may order a spouse to pay periodic and/or lump sum support to the other spouse. Section 15.2(4) sets out the following factors the court must consider in determining the condition, means, needs and other circumstances of each spouse when making an order for spousal support:
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.
76Section 15.2(6) sets out the following objectives of a spousal support order:
i. recognize any economic advantages or disadvantages to the spouses arriving from the marriage or its breakdown;
ii. 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;
iii. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
iv. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
77All four factors are to be considered with none to be given priority over the others: Moge v. Moge, [1992] 3 S.C.R. 813. Furthermore, the goal of considering these objectives is to achieve an equitable sharing of the economic consequences of the marriage or its breakdown. The longer the relationship and the closer the economic union, the stronger the claim for a presumptive equal standard of living upon dissolution: R.L. v. M.F., 2023 ONSC 2885, at paras. 249-50, aff’d 2025 ONCA 595.
78There are three grounds for entitlement to spousal support: 1) compensatory; 2) non-compensatory; and 3) contractual: Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 15.
79Compensatory support aims to address economic disadvantages incurred during the marriage that may arise from the roles assumed during the marriage. The roles assumed may confer an advantage to one such as through career advancement and may confer a disadvantage to the other such as impairing a career through a caregiving role. There does not need to be both an advantage to one and a disadvantage to another to establish entitlement based on compensatory grounds: Shaw v. Shaw, [2002] O.J. No. 2782 (S.C.), at para. 156.
80Non-compensatory support addresses needs arising from the breakdown of the marriage. The claim arises out of the relationship itself and the mutual financial interdependence arising from that relationship: R.L., at para. 257. It is based on need and ability to pay.
81A spouse can have both a compensatory and a non-compensatory claim for support.
82Although R.L. was released after this trial was heard, and the parties could therefore not refer to it in their submissions, I am going to spend some time reviewing it as the Court of Appeal provided a very helpful summary of the law of several issues in dispute in this matter. Many of the decisions referred to by the parties were considered and reviewed by the Court of Appeal in R.L. dealing with the issues of the basis for entitlement to support, post-separation increases in income and determining support when the payor’s income exceeds $350,000.
83The Court of Appeal upheld the trial judge’s findings in R.L. that the wife had a moderate compensatory and a non-compensatory entitlement to spousal support and that support should be based on the husband’s increased earnings post-separation. In upholding the trial decision, the Court of Appeal provided a comprehensive review of the legal framework for spousal support.
84In R.L., the parties had been married for 14.5 years and there were two teenaged daughters. While the parties were both high earners, the husband earned significantly more than the wife who worked part-time as a physician during the marriage as the parties agreed she would be primarily responsible for the home and children, as the husband was required to work long hours.
85Kurz J. imputed an income of $550,000 to the wife post-separation, finding that there was no longer any reason for her to only work part-time. The husband therefore argued that the wife had no entitlement to spousal support given this imputed income. The husband also argued that she should not share in the post-separation increase in his income that doubled from approximately $1,000,000 to $2,000,000 in the three years since the parties separated.
86Kurz J. found that the wife’s choice to work part-time during the marriage assisted the husband in his banking career as it freed him to work the long hours that were the prerequisite to his success. He found she was entitled to compensatory support but that her lack of disadvantage limited the extent of the compensatory aspect of her claim.
87Kurz J. found that based on the length of the parties’ marriage and the financial interdependence that arose during the marriage, the wife was entitled to non-compensatory support. He found her stronger claim, and the one that entitled her to share in any post-separation increases in the husband’s income, was on a compensatory basis.
88Kurz J. found that the wife was entitled to share in the post-separation increase in the husband’s income. He fixed spousal support below the lower end of the range using the husband’s actual income and ordered the husband to pay spousal support of $20,000 per month for 9.5 years. Kurz J. found that while this level of support was well above the wife’s needs, it fairly compensated her for the role she played during the marriage and the advantages that the husband accrued from that role. Considering the monthly child support of approximately $30,000 (inclusive of s. 7 expenses) and an equalization payment of $474,744 payable to the wife, Kurz J. found that monthly spousal support of $20,000 would fairly address the non-compensatory aspects of her support claim.
89At paras. 24-43, the Court of Appeal discussed why it upheld Kurz J.’s finding that the wife was entitled to spousal support despite her imputed high earnings. The court dismissed the husband’s argument that there could be no finding of a compensatory element to support where the wife suffered “zero” economic loss because of the roles assumed during the relationship. The court said that this submission ignored the objectives of spousal support found in s. 15.2(6) of the Divorce Act.
90In summary, the Court of Appeal affirmed the following spousal support principles:
Entitlement to spousal support is the threshold issue and pre-condition to spousal support: R.L., at para. 36.
There is no presumptive right to spousal support: R.L., at para. 36.
Income disparity alone does not determine entitlement to spousal support: R.L., at para. 36.
A trial judge must consider all factors in the Divorce Act and no one factor is paramount: R.L., at para. 26.
Spousal support is driven by both compensatory and non-compensatory or needs-based considerations: R.L., at para. 27.
Non-compensatory support entitlement centres on the needs of the spouses and their respective means: R.L., at para. 28.
Compensatory support recognizes an entitlement to support as compensation for the economic disadvantages to the recipient spouse or the economic advantages conferred on the payor spouse as a result of the roles assume during marriage: R.L., at para. 28.
Income imputation and the fact that a spouse has not suffered material career setbacks or prejudice do not preclude a spousal support claim as per s. 15.2(6)(a) and (b) of the Divorce Act as compensatory entitlement may arise where, as a result of the parties’ roles during the marriage, one spouse has conferred economic advantages on the other notwithstanding the absence of economic disadvantage: R.L., at para. 30.
The spouse who has shouldered the household and family responsibilities may be entitled to compensatory spousal support to share in the augmented earning capacity of the other spouse: R.L., at para. 30.
The doctrine of equitable sharing, founded on the concept of economic merger, is the overarching principle to be focused on by the court: R.L., at para. 32.
The merger of the parties’ economic lifestyles creates a joint standard of living which must be considered in the spousal support analysis: R.L., at para. 34.
Marriage is an economic unit which generates financial benefits and partners should expect and are entitled to share those financial benefits: R.L., at para. 34.
As marriage is a joint endeavour, the longer the relationship, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon dissolution: R.L., at para. 34.
91The Court of Appeal agreed with Kurz J.’s finding that the wife was entitled to spousal support in the context of a longer marriage involving children where she supported the husband’s career advancement even where the wife had a relatively high income. Even if the wife was not disadvantaged by the marriage as there was no loss of competitive advantage in the workforce, the wife may nevertheless have been disadvantaged by the marriage breakdown having lost the standard of living enjoyed during the marriage given the length of marriage and their lifestyle: R.L., at para. 37.
92The Court of Appeal also found that a recipient spouse is entitled to a degree of comfort beyond “basic needs”. At para. 42, the court found that the arrangement between the parties during the marriage required a consideration of the spousal support from the perspective of the standard of living that was still reasonably available to them.
iii) Analysis
93I find that Ms. Cialini has a claim for both compensatory and non-compensatory support. There is no dispute that other than for a brief period after A’s birth, she did not work throughout the marriage. While Mr. Cialini argues that he did not agree that she remain at home once the children were in school, I find that he nonetheless directly benefited from Ms. Cialini staying at home to care for the children and the home, particularly as his work required an increasing amount of travel during the marriage.
94Mr. Cialini argues that Ms. Cialini is not entitled to compensatory support as it was not a mutual decision that she stay home, other than when the children were young. He argues that it was Ms. Cialini’s unilateral decision not to work, and he did not support that decision. According to Mr. Cialini, Ms. Cialini had ample opportunity to retrain or return to work during the marriage. He relies on Firth v. Allerton, 2013 ONSC 2960, where the wife had a very successful career and the husband worked intermittently during the marriage. In Firth, the court found that a deliberate individual choice by one party not to pursue or develop career opportunities without the express or implied consent or acquiescence of the other party or against the wishes of the other party may not support a claim for compensatory support.
95Mr. Cialini argues that, as in Firth, he did not consent or acquiesce to Ms. Cialini’s decision not to work, and she chose not to work against his wishes. He argues that as Ms. Cialini made the unilateral decision not to work, the loss of any career or employment opportunities and the economic disadvantage flowing therefrom were the result of her own choices disentitling her to compensatory support.
96In my view, Firth only considered one side of the coin in assessing entitlement to compensatory support as it failed to give equal consideration to the economic advantages conferred on the working spouse. Similarly, Mr. Cialini’s argument fails to consider that even if he did not support Ms. Cialini’s decision not to work, he nonetheless benefitted from that decision through the work she assumed in caring for the children and the home while he focused on his career.
97Even when children are in school full-time, the at-home spouse plays an important role in the support and advancement of the other spouse’s career. The contributions do not have to be direct such as hosting work events but are far more subtle such as organizing and attending medical and other appointments for the family, co-ordinating school events, grocery shopping, making meals, and doing the laundry. The work done by a stay-at-home parent is often hidden, undervalued, unpaid, overlooked, and minimized.
98In my view, while there is no dispute that Mr. Cialini was a good father who participated in caring for the children when he was home, he underestimates the role that Ms. Cialini played by suggesting that his role was equal to hers. He worked full-time. He travelled to some degree for work. He even wrote a book. Ms. Cialini, on the other hand, was home 24/7. It was simply not physically possible for Mr. Cialini to have played an equal role in caring for the home and children. To be clear – that is not to suggest he was not a committed and loving father. The reality is, however, that Ms. Cialini played a more significant role in the home and in caring for the children. This conferred advantages on Mr. Cialini as he could focus on his work and career without worrying about the often mundane details of everyday life in the home as those were taken care of by Ms. Cialini.
99Mr. Cialini’s career trajectory at IBM and his increasing income over the years is evidence of the benefit conferred upon him by Ms. Cialini’s role in the home during the marriage. He was able to focus on his work knowing that the day-to-day work in the home and in caring for the children, even after they were in school, was Ms. Cialini’s responsibility and focus.
100The role Ms. Cialini assumed during the marriage also resulted in an economic disadvantage to her. Her difficulty finding employment after so many years out of the workforce is evidence of that disadvantage. Having said that, in my view, the stronger claim to compensatory support is connected to the advantages conferred on Mr. Cialini by Ms. Cialini not working outside the home.
101There was a clear pattern of economic dependency that developed during the marriage because of the roles they each assumed. Mr. Cialini financially supported the family and oversaw their finances. Ms. Cialini did not even have her own bank account or credit card when the parties separated which reflects her complete economic dependence on Mr. Cialini.
102I found both parties to be generally credible and reliable although they clearly do not trust each other. As is often the case where family law disputes proceed to trial, they also both appeared to have unresolved pain and resentment towards the other over various issues including why the marriage ended.
103If they are equally credible and reliable witnesses, the issue is how to reconcile their conflicting evidence about whether it was a mutual decision for Ms. Cialini to stay home during the marriage. While I do not have to resolve this dispute given my findings about her entitlement to compensatory support, I will explain why their conflicting evidence does not suggest a concern with their veracity.
104Each marriage is unique and the interpersonal relationship between spouses can be complex and nuanced, and shift over time. When testifying about a long-term marriage, each party may recall the subtleties and complexities of the relationship differently. Their recollections may also be clouded by the emotions that naturally arise when a long-term relationship ends and why it ended. Thus, in my view, both parties were not being untruthful when they testified about what they recall about what was discussed, or not, or agreed upon, or not, regarding Ms. Cialini not working. I accept that both parties were being truthful and accurate to the best of their ability about what they recall. I accept that there were likely times that Mr. Cialini encouraged Ms. Cialini to work, as he described, but that he also told her he supported her decision, as Ms. Cialini described. The discussions they had were likely a combination of encouragement to work and support for a decision not to work. The focus of those discussions may also have changed over time with more discussions about Ms. Cialini working near the end of the relationship.
105Even if I accept Mr. Cialini’s evidence that he communicated his desire that Ms. Cialini works and that it was solely Ms. Cialini’s decision not to do so, there were several years before the children were in school full-time that it was a joint decision that she stays at home. On its own, that would ground a claim for compensatory support.
106Mr. Cialini argues that had Ms. Cialini worked, she would have been able to contribute to the family financially and this would have improved the family’s financial situation. This argument minimizes the non-financial contributions a stay-at-home parent makes to the family unit. While a stay-at-home spouse’s work is not measured in dollars, it has a significant value that is too-often unappreciated and undervalued.
107Based on the totality of the evidence, I am satisfied that Ms. Cialini has a strong claim for compensatory spousal support. By remaining at home and assuming primary childcare and home responsibilities, Ms. Cialini contributed to the overall welfare of the family. Her role cannot be diminished.
108Ms. Cialini also has a claim for non-compensatory support based on her need which arose when the marriage ended. Need is defined by both the marital standard of living and the other spouse’s post-separation standard of living. Ms. Cialini was out of the workforce for 23 years when the marriage ended. She had no income and was completely dependent on Mr. Cialini for her support. She had an inability to meet her basic needs when the marriage ended because of the economic interdependency that developed during the marriage. Ms. Cialini’s economic circumstances were clearly diminished when the marriage ended.
109Conversely, Mr. Cialini’s income increased significantly post-separation as his career at IBM advanced. He was also able to accumulate assets, such as an interest in property in San Francisco, and assisting his girlfriend with the purchase of a home in Texas.
2. Issue Two – Should an Income be Imputed to Ms. Cialini?
110Determining quantum of spousal support involves a consideration of many factors. The first issue is whether an income should be imputed to Ms. Cialini and if so, how much and commencing when. I start with considering that one of the objectives of spousal support in s. 15.2(6) of the Divorce Act is to promote economic self-sufficiency.
111The Child Support Guidelines, SOR/97-175 (CSG) are considered when determining income for spousal support purposes. Pursuant to s. 19(1), the court may impute income as it considers appropriate in all the circumstances where the spouse is intentionally under-employed.
112Since the parties separated, Ms. Cialini’s declared income from all sources has been as follows:
| Employment | Investment income | Capital gains | Rental Hamilton | Total income | |
|---|---|---|---|---|---|
| 2018 | $3,478.22 | $3,478.22 | |||
| 2019 | $366.36 | $1,636.33 | $2,002.69 | ||
| 2020 | $99.77 | $5,820.88 | $5,920.65 | ||
| 2021 | $32,048.60 | $9,042.36 | $41,090.96 | ||
| 2022 | $6,068.35 | $512.72 | $6,581.07 | ||
| 2023 | $14,261.99 | $1,240.72 | $15,502.71 | ||
| 2024 | $18,240.19 | $18,240.19 | |||
| 2025 | $18,240.19 | $18,240.19 |
113Ms. Cialini testified that the ending of the marriage was a very difficult period for her. She did not start to look for work until March 2019 – just over one year after the parties separated. Ms. Cialini testified that she initially was dealing with the emotional consequences of the end of the marriage and spending time looking after the Hamilton property.
114Ms. Cialini testified about the number of jobs she applied for and about finding work in the retail industry where she has only been offered part-time hours.
115Mr. Cialini argues that knowing of marital issues, as evidenced by the prior separation in 2017, Ms. Cialini ought to have commenced her job search sooner. He also argues that she was offered a job in 2017 which she turned down. Ms. Cialini does not recall this, but Mr. Cialini says it is evidence that she could have been working when the parties separated.
116I find that as a 48-year-old woman who had been out of the workforce for 23 years, Ms. Cialini would not be a potential employee in demand by employers. Her extensive unsuccessful job search reflects the challenges she faces. Her skills as a medical transcriptionist are likely out of date. She has no computer skills which also limits her employment options. The work she found, in retail, was likely the best employment opportunity for her given her age, limited work history and training.
117Having said that, Ms. Cialini has an obligation to work towards self-sufficiency. I agree with Mr. Cialini that the COVID-19 pandemic was a good opportunity for her to upgrade her education or training. At the very least, training in some basic computer skills would likely have assisted her job search or broadened the types of jobs she could apply for.
118Mr. Cialini’s position is that an income in the range of $30,000 to $50,000 should be imputed to Ms. Cialini from the date of separation. He argues that she has had ample time to retrain and upgrade her education and find full-time employment.
119There is no evidence of any medical issues that prevent Ms. Cialini from working. When the marriage ended, however, there would have been a period of adjustment for Ms. Cialini in coming to terms with the end of a long-term relationship and her new reality. My impression was that while Mr. Cialini was ready to move on with the next chapter in his life, Ms. Cialini, whose identity was connected to being a spouse and mother, faced a far more difficult transition. In all the circumstances, I do not find her delay of just over one year in launching her job search to be unreasonable. I accept that the initial year post-separation would have been a significant adjustment for her.
120I also find that working in retail earning minimum wage is commensurate with Ms. Cialini’s lack of training, her age, and work history. It is the type of employment best suited to her in all the circumstances. Imputing an income to her at minimum wage rates is fair and reasonable. Given the impact of COVID-19, in my view, the imputation of income should commence in January 2022 which allowed for a three-year period post separation for Ms. Cialini to have adjusted to her new reality, seek some upgrading or training to make herself more marketable, and then obtain full-time employment. That is not something that can be done overnight.
121Accordingly, for the purposes of determining spousal support, I accept that Ms. Cialini had no income for 2018-2021. Using minimum wage rates, I impute the following income to her from 2022 and then on an ongoing basis:
2022 $31,460 ($15.00 per hour then $15.50 in October) 2023 $32,786 ($15.50 then $16.55 in October) 2024 $34,762 ($16.55 to $17.20 in October)
3. Issue Three – What is Mr. Cialini’s Income for Support Purposes?
a) Should Ms. Cialini Share in the Increase in Mr. Cialini’s Income Post-Separation?
i) Legal Framework
122There are several issues that must be addressed in determining Mr. Cialini’s income for support purposes. I will address the increases in his income post-separation and whether spousal support should be based on those actual earnings or using an average of his income pre-separation as Mr. Cialini proposes. There are also issues with respect to deductions he claimed in connection with the Hamilton and San Francisco property and whether the RSUs are to be included in his income.
123Ms. Cialini’s position is that Mr. Cialini’s actual income should be used to determine spousal support. Her position is that she is entitled to share in the increases in Mr. Cialini’s income post-separation as there is a connection between the benefits conferred on Mr. Cialini through her work in the home that assisted in his career advancement at IBM and his increased earnings.
124Mr. Cialini argues that a three-year average of his pre-separation earnings should be used as that more accurately reflects their lifestyle during the marriage as that is the lifestyle to which Ms. Cialini is entitled. It is also his position that Ms. Cialini did not contribute to his success post-separation and therefore should not share in his increased income post-separation.
125Before reviewing the evidence, I will start with an overview of the legal framework for the treatment of post-separation increases in income in the context of spousal support claims. Both parties relied on the principles set out in Thompson v Thompson, 2013 ONSC 5500. Those principles were considered by the Court of Appeal in R.L. The following is a summary of the principles summarized in R.L.:
There is no automatic entitlement to increased spousal support based on post-separation increases in income: R.L., at para. 64.
The broad test for sharing of post-separation increases in income is whether there is a “link” or “connection” between the marriage and the increased income. The link will more likely be found where the claim is compensatory: R.L., at para. 65. The basis for this is that “compensatory support is based on the principle that a payee spouse is entitled to compensation for the economic advantages conferred on the payor spouse and to share in the related increase to the fruits of the marital parentship to which the payee spouse contributed and which would have occurred had the spouses continued to cohabitate”: R.L., at para. 66.
The support recipient must demonstrate an either direct or indirect contribution. It is not tied to a ‘causal connection” test: R.L., at para. 67.
The determination if there should be a sharing and the extent of such sharing must consider the general support factors and objectives in s. 15.2(4) and (6) of the Divorce Act: R.L., at para. 68.
The analysis must consider the length of the marriage, the extent of the recipient’s contributions both pre- and post-separation and the duration of time where the efforts and sacrifices were made: R.L., at para. 69.
Important considerations are whether the recipient’s efforts and contributions contributed to the payor’s financial advancement pre- and post-separation. These include the expertise the payor acquired during the relationship and the extent to which the payor found himself in favourable circumstances as a result of the joint enterprise of the marriage: R.L., at para. 70.
Evidence that the recipient’s sacrifices and contributions during the relationship supported the payor’s financial progression post-separation will support a sharing of the post-separation income and a higher amount of such sharing. The various means a recipient can contribute and support vary and include assuming primary responsibility for home-management matters, taking primary childcare responsibility during and/or after the relationship, assisting in the establishment and operation of the payor’s business or subordinating their career to that of the payor so that the payor can focus on the development of their skills and career: R.L., at para. 71.
Evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income post-separation were acquired during the relationship is a factor that will favour sharing the increased income. The closer the temporal link between the separation and the increase in income, the more likely it is the court will find that the recipient’s efforts supported the other party’s post-separation financial success: R.L., at para. 72.
The court should consider if there were any changes to the payor’s career post-separation that explain the increased income such as a new job, position or business reorganization. The court must still consider if the change in position was attributable to the knowledge, skills and experience the payor acquired during the relationship with the support of the recipient’s efforts: R.L., at para. 73.
A long traditional marriage with children will justify full or substantial sharing of post-separation increases in income. Where there is an integration of personal and financial affairs during the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings post-separation: R.L., at para. 74.
The sharing in post-separation increases in income is not an all or nothing proposition. Partial sharing can be accomplished by use of the location in the spousal support range.
126The Court of Appeal found that Kurz J. followed these principles when he found that the husband’s actual income would be used to determine spousal support. Kurz J. fixed support at below the lower end of the SSAG range which the Court of Appeal found had the appropriate effect of reducing the wife’s degree of sharing in the post-separation increased income.
ii) Review of the Evidence
127The following is Mr. Cialini’s income between 2018 and 2025, not including any of the losses claimed in connection with his rental income:
| Year | Employment | Stock Options/ RSUs | Investment income | Total Income |
|---|---|---|---|---|
| 2015 | $215,628 | $215,628 | ||
| 2016 | $225,299 | $225,299 | ||
| 2017 | $247,013 | $247,013 | ||
| 2018 | $272,341 | $147 | $272,488 | |
| 2019 | $259,866 | $174 | $260,040 | |
| 2020 | $241,222 | $63 | $241,285 | |
| 2021 | $284,617 | $284,617 | ||
| 2022 | $272,499 | $93,061 | $132.61 | $372,692 (T4 $365,561) |
| 2023 | $298,746 | $55 | $298,801 | |
| 2024 | $304,502 | $238,886 | $543,388 |
128Based on the evidence, Mr. Cialini’s income was increasing prior to the separation and, in fact, in 2017 he earned more than he did in 2020, two years after the separation.
129While there has not been a significant increase in his base income between 2018 and 2024 ($272,000 to $304,502), the significant increase is associated with the RSUs which are part of his compensation package. Mr. Cialini participated in the stock option program prior to separation and owned several shares in IBM on the date of separation which are included in his net family property.
130The RSUs only became part of Mr. Cialini’s compensation package post-separation. There is therefore no issue with respect to double recovery as they are not an asset to be valued on the date of separation. The issue is whether they should be included in Mr. Cialini’s income to determine spousal support, as they are not part of his base income. If the RSUs are not included, Mr. Cialini’s income does not exceed $350,000.
131Mr. Cialini argues that the increases in his income were the result of changes in his position at IBM that he achieved through his efforts post-separation. He testified about his career trajectory at IBM both pre- and post-separation as well as the various courses he took while at IBM. He is to be commended for his career achievements.
132Mr. Cialini has worked full-time at IBM since he graduated from university in 1991. He initially worked in technical support for several years before becoming a manager in quality assurance between 1998 and 2004/2005. In 2015, after initially being offered a severance package, he began to work in tech sales and was paid on a commission basis. This work involved creating educational materials for various IBM products. He also led workshops for the sales team to teach them about the products.
133Mr. Cialini testified that he was paid a base salary when he started with IBM. In 1998, he also began to receive a bonus based on corporate performance. His pay steadily increased but there was a large jump when he took on the tech sales role in 2015. He also received stock options in some years. He testified that since 2019, the increases to his base salary have been larger and more frequent than they were before the separation.
134According to Mr. Cialini, during the marriage he received outstanding technical achievements.
135After the parties separated, Mr. Cialini began to work as a software developer at IBM. His next position was as an enterprise architect before becoming a technical consultant. He testified that this work was unlike anything he did during the marriage. It involved cybersecurity, which he was never involved with in any position he held during the marriage. He had to train and learn new skills for that work as he worked with the security division at IBM.
136In September 2018, he was asked to join the finance division of IBM which was involved with the overall operations of the company. He was dealing with financial issues that he had never dealt with in his previous roles. He had to engage in self-education and training to learn new skills.
137In 2021, he was paid a retention bonus of $20,999 to stay with IBM for another two years. If he left before the end of those two years, he would have to reimburse IBM for that retention bonus.
138According to Mr. Cialini, in 2023 he was awarded the position of Distinguished Engineer by the CEO of IBM. He explained that the designation was granted to him based on the contributions he made to the company in the previous three years, which involved his efforts and work post-separation.
139Mr. Cialini produced a copy of the description of a Distinguished Engineer from IBM. The opening sentence is that Distinguished Engineers are “corporate employees who possess either very broad competencies across multiple technical areas or a very deep technical knowledge in a specific technical discipline.” When cross-examined, he agreed that he had broad expertise that he did not acquire in just five years at IBM. His evidence was that he acquired a breadth of technical abilities in the six years after the separation whereas during the marriage, he acquired skills in only one area, being support.
140A document was filed that listed all the courses he has taken at IBM post-separation. The list was quite extensive. Some courses were mandatory and others he chose to take. According to Mr. Cialini, while he took courses before the separation, they were focused on a particular product. His evidence was that the amount of training he has done since the separation is exponentially greater than what he did pre-separation. Because he moved into a new role with the company, he had much to learn to establish himself.
141The courses Mr. Cialini took were self-directed studies offered by IBM. There is no evidence that he attended any sort of program. When he was cross-examined, Mr. Cialini was asked about some of these courses he took that were completed in a day. For example, on June 29, 2024, he completed 20 courses that day. On September 12, 2021, he did 39 courses that day in 34 minutes. This evidence suggests that the courses he took and the self-study he engaged in may not have been quite as significant as he claimed.
142In 2023, Mr. Cialini became the Chief Technical Officer at IBM. His work involves setting the direction for the company rather than just focusing on a single product as he did prior to the separation. He is paid a base pay. There is also an incentive program based on various factors, and the granting of RSUs. Based on his income tax information, post-separation, the significant increase in his income in 2022 and 2024 was because of these RSUs.
143Mr. Cialini explained that an RSU is a stock benefit that the company grants as an award over time. It encourages employees to remain with the company as if the employee leaves before the RSUs are released, they are cancelled. According to Mr. Cialini, RSUs are awarded based on current and future performance of the company. He testified that the RSUs declared on his 2022 income tax return that vested that year were awarded to him in 2000. The balance from the award granted in 2000, vested in 2024. He has not yet sold the shares although he was taxed on the value of the RSUs when they vested in 2022 and 2024.
144Mr. Cialini testified that he received another award of RSUs in 2023 that he said were granted as an incentive for him to remain with IBM. His evidence is that a portion of those RSUs will vest annually for four years, between 2024 and 2028.
145Counsel for Ms. Cialini said that the information about the RSUs was not disclosed in a timely fashion. According to Mr. Cialini, he attached a pay stub for the period ending November 26, 2022, to his 2022 financial statement. There was a category for noncash taxable benefits. The year-to-date amount was $92,988.75, which was in addition to his income to date of $261,925. According to Mr. Cialini, the $92,988 was the value of RSUs that vested in 2022.
146Although this pay slip was produced, no follow-up questions or requests were made by Ms. Cialini at that time for further information about the noncash taxable benefits disclosed on this pay stub. While I find that there was no deliberate non-disclosure by Mr. Cialini, he ought to have provided the information about the RSUs to Ms. Cialini even though she had not requested it if he intended to rely on the evidence at trial, as he did.
ii) Analysis
147Mr. Cialini’s position is that in determining the appropriate level of spousal support, Ms. Cialini would be entitled to the standard of living they enjoyed during their marriage. Therefore, his earnings during the marriage should be used to determine support, and not the increases in his income post-separation. Essentially, while his standard of living may have increased due to his increased earnings, Ms. Cialini should not benefit from those increased earnings; her standard of living should be frozen in time to their lifestyle during the marriage and nothing more.
148That argument would be more persuasive if this was a short-term marriage or one where Ms. Cialini worked throughout and was only entitled to non-compensatory support based on need. I reject Mr. Cialini’s argument given the long-term traditional nature of their marriage and the years that Ms. Cialini was out of the workforce resulting in a strong compensatory support claim. Her lifestyle is not frozen in time. Rather, the court can consider the standard of living that is still reasonably available to them.
149Mr. Cialini also argues that Ms. Cialini did not support his career throughout the marriage. Ms. Cialini agreed that she complained about the amount he travelled, but said that was later in their marriage. She did not agree that they argued about his work and travel between 2015 and 2017. Her evidence was that she was disappointed as his attention was on his work even when he was home.
150Mr. Cialini argues that his post-separation promotions at work and increased income were solely the result of his efforts post-separation. In my view, this ignores the value of what Ms. Cialini contributed to his career during the marriage when the foundations were being laid for his later success in his career. Those contributions do not have to be direct, such as hosting events for client development or networking. Significant contributions can be made in more subtle and indirect ways.
151A stay-at-home spouse contributes indirectly to the employed spouse’s career by taking care of the children so that the employed spouse does not have to worry about the everyday details of raising a family such as making sure meals are made, the children have clothes, birthday parties are organized, gifts are purchased for various events and holidays, volunteer work is done at school, someone is home when the child is sick, activities are signed up for, organized, and scheduled, medical and dental appointments are arranged and so on. There is significant value to the employed spouse knowing that all childcare issues and daily home maintenance will be dealt with by the at-home parent so that the employed spouse can concentrate on their job in the moment and their career in the longer term.
152When both parents are employed outside the home, there is often an ongoing negotiation about such things as who will take time off work to stay home with a sick child, or who can leave work for a school event, or medical or other appointment. With an at-home parent, the employed spouse does not have to worry about juggling parenting duties with work duties which is a direct contribution to their career path.
153Generally, my impression was that Mr. Cialini was trying to downplay or minimize the importance of the years he spent at IBM during the marriage in contributing to his ongoing success with the company. I do not accept that his years at IBM prior to the separation did not play a role in his success post-separation. Those early years, at the very least, laid the foundation for his later success.
154I am mindful that there is no automatic entitlement to increased spousal support when a spouse’s post-separation income increases. Entitlement must be assessed using a contextual approach. Using that approach, where there has been a long-term marriage with a complete integration of the parties’ personal and economic lives, there is more likely to be an entitlement to share in a post-separation increase: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.
155I find that there is a link between the marriage and the post-separation increases in Mr. Cialini’s income despite the changes to his role at IBM. The years he spent at IBM during the marriage would have been a factor in his career development. Furthermore, Ms. Cialini’s work in the home conferred economic advantages on Mr. Cialini entitling her to share in the related increases to the fruits of the marital partnership to which she contributed, as she would have shared had they not separated.
156The length of their marriage is an important consideration in finding that Ms. Cialini is entitled to share in the fruits of the marital partnership which includes the increases in Mr. Cialini’s income. While I accept Mr. Cialini’s evidence of the changing nature of his work and the self-study courses he engaged in post-separation, I have balanced that with the 25 years that Ms. Cialini was at home enabling him to focus his energy on establishing himself at IBM. While I accept that Mr. Cialini has acquired new roles at IBM, his many years with the company pre-separation were no doubt foundational and played a role in his post-separation success.
157I therefore find that Mr. Cialini’s actual earnings are to be used to be used to determine spousal support.
Should the RSUs be included in Mr. Cialini’s Income?
158Pursuant to s. 17(1) of the CSG, if the court is concerned that a determination of a payor’s income under s. 16 may not be the fairest determination of that income, “the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of non-recurring amount during those years.”
159Mr. Cialini’s position is that the RSUs are not a recurring feature of his compensation package and should therefore not be included in his income for support purposes. He did not, however, produce any evidence from IBM about the specific nature of his compensation package. That would have been helpful. Based on his evidence, he will continue to receive compensation through the last grant of RSUs as they will vest annually over a period of four years.
160At one point, the law was unsettled about whether RSUs should be treated as property or income if they existed on the date of separation. That is not an issue, however as the RSUs did not exist on the date of separation. RSUs granted after the date of separation can be treated as income for support purposes: Brennan v. Lander, 2020 ONSC 1696.
161The central issue is whether it would be fair and reasonable to include the RSUs granted to Mr. Cialini if they are non-recurring. The court has discretion to average a support payor’s income where their income is skewed by a non-recurring event. In this matter, there is a basis to find that the RSUs granted to Mr. Cialini are non-recurring as they were only granted twice.
162While the granting of RSUs has only occurred twice, based on his evidence, Mr. Cialini will be receiving a benefit over the four years that the last grant will vest.
163The granting of the RSUs was not a one-time exceptional event nor can it be considered a regular or recurring event. A balance must therefore be found in how to fairly treat the RSUs. In my view, the balance is achieved by including the RSUs as income but then fixing spousal support for the years that the RSUs vest at the low end of the range for spousal support.
Should Travel Expenses be Deducted as a Reasonable Rental Expenses?
164I heard extensive evidence from Mr. Cialini about the expenses he has claimed for both the Hamilton and San Francisco rental property. In her closing submissions, Ms. Cialini only contested the amounts Mr. Cialini deducted for travel expenses – primarily travelling to and from Hamilton and San Francisco, and one write-off claimed in 2023 associated with a BMO line of credit. I am therefore perplexed why so much evidence was led on the issue. Surely, with proper disclosure, the parties could have narrowed the issues prior to trial as that would have saved time at trial.
165Pursuant to s. 19(1)(g) of the CSG, the court may impute income where a spouse unreasonably deducts expenses from income.
166Relying on Evans v. Evans, 2023 ONSC 2919, Ms. Cialini argues that Mr. Cialini did not discharge his onus to establish that the travel expenses he incurred are “reasonable” and therefore entitled to be deducted against the rental income he earned. She argues that the expenses are to be included back into his income.
167Mr. Cialini testified that he lives in Hamilton with his mother. Nonetheless, he has deducted travel expenses to Hamilton as a rental expense. According to Mr. Cialini, he now travels a great deal for work and there are times he must return to Hamilton to deal with issues arising from the rental property. He also claimed travel expenses twice to San Francisco when he initially purchased the property and a second time to paint it.
168His travel expenses to Hamilton involved international flights and even Lyft or Uber receipts from the airport. He also claimed car rental expenses in Hamilton that he wrote off as an expense when he did not have a car.
169I agree that these travel expenses to Hamilton are unreasonable. He lives in Hamilton. Surely any issues arising from the Hamilton property could be addressed when he is home from work. He also testified that he had a sister who lived in Hamilton who assisted him from time to time. I heard no evidence about why he urgently had to fly back to Hamilton to deal with the rental property on occasions other than when he would have normally been home. My impression was that Mr. Cialini was able to use some of his regular trips back to Hamilton as tax write-offs, claiming the travel expense was associated with the rental property.
170It is unclear to me why, other than perhaps for an emergency, he would have to fly home to Hamilton at times other than when he was returning home in the normal course. When back in Hamilton, he could have dealt with various rental property issues or he could have paid his sister or some other person to assist, if necessary. For example, one of the documents filed as evidence was an email from October 2022 as a note to himself that he was incurring a flight expense to fix a smoke detector. In my view, there was likely a far more cost-effective way to address that issue than a flight home.
171While these travel expense claims may be permitted by as appropriate rental expenses for tax purposes, in my view, they should be added back to his income for the purposes of determining Mr. Cialini’s income for support purposes. I consider the expenses to be unreasonable.
172While I agree that it seems unnecessary to travel to San Francisco to paint, I accept that, as Mr. Cialini does not live in San Francisco, there are travel expenses that will be incurred to travel to that property from time to time. Those expenses as deductions are reasonable.
173Ms. Cialini also takes issue with a BMO line of credit expense of approximately $5,300 that Mr. Cialini claimed as a rental expense for the Hamilton property in 2023. According to Mr. Cialini, it should have also been claimed in 2021 and 2022, but he failed to include it in his income tax return. He is not seeking that deduction.
174Mr. Cialini testified that when he purchased Ms. Cialini’s interest in the Hamilton property, as she would not permit him to secure a home equity line of credit (HELOC) on the matrimonial home, he had to use his BMO line of credit as a form of down-payment before he could obtain mortgage financing to pay her out. He used $25,000 from this line of credit for this purpose in 2021. It is the interest on this advance on his line of credit that he wrote off against the Hamilton property.
175Mr. Cialini did not disclose the BMO line of credit in either his March or December 2022 financial statements. It was first disclosed in his January 2025 financial statement.
176Mr. Cialini was cross-examined about a series of transactions in 2023 on his BMO line of credit. He testified that on March 23, 2023, he took out a cash advance of $25,000 on his BMO line of credit. The following day, he paid $25,000 towards the same line of credit. On April 6, 2023, he took out another cash advance of $25,000. One week later, his girlfriend’s purchase of the property in Texas closed. Mr. Cialini testified that he helped her with the purchase by giving her $12,000 USD which he initially said was a personal loan and then changed his evidence to say was a gift. In his financial statement sworn in December 2024, he gave conflicting evidence as he swore that he made no contributions to the Texas property.
177In 2023, for the first time, he claimed an expense of $5,347 for the interest on the BMO line of credit against the Hamilton property, which was in addition to the interest and bank charges of approximately $30,000 he wrote-off for the TD mortgage registered on title to the property.
178Mr. Cialini’s evidence is that the 2023 transactions on the BMO line of credit are not connected to the interest he is writing off that was related to his purchase of Ms. Cialini’s share of the Hamilton property in 2021.
179No evidence was led, however, of the BMO advance such as a statement from 2021 showing this advance. I am therefore left with an evidentiary gap. That, combined with the BMO line of credit not being disclosed in Mr. Cialini’s financial statements until 2025 and not being declared as an expense in 2021 or 2022, leads me to the conclusion that Mr. Cialini has not met his burden to prove that the BMO interest expense was incurred for the Hamilton property and that it is a reasonable deduction. I therefore find that the amount claimed should not be deducted.
180The following amounts are to be deducted form the rental expenses claimed by Mr. Cialini and his income adjusted accordingly:
| Hamilton Rental Property Travel Expenses | Hamilton Rental Property (BMO credit line interest) | Adjustments to Respondent’s Income | |
|---|---|---|---|
| 2019 | $5,449.82 | $5,449.82 | |
| 2020 | $2,001.12 | $2,001.12 | |
| 2021 | $2,340.97 | $2,340.97 | |
| 2022 | $3,381.60 | $3,381.60 | |
| 2023 | $8,457.01 | $5,347.02 | $13,804.01 |
181With these adjustments, I find that Mr. Cialini’s income is as follows:
| Employment | Stock Awards, RSU. Etc. | Investment Income | Net rental Hamilton | Net rental San Francisco | Adjustment to Rental income | Total | |
|---|---|---|---|---|---|---|---|
| 2019 | $259,866 | $174.14 | ($5,664.61) | ($7,570.81) | $5,449.82 | $252,254 | |
| 2020 | $241,222 | $63.91 | $2,426.22 | ($7,135.13) | $2,001.12 | $238,579. | |
| 2021 | $284,617 | ($198.89) | ($18,046.25) | $2,340.97 | $268,713 | ||
| 2022 | $272,499. | $93,061. | $132.61 | $2,406.43 | ($3,968.56) | $3,381.60 | $367,513 |
| 2023 | $298,746. | $55.30 | ($23,641.66) | ($4,906.11) | $13,804.01 | $284,058. | |
| 2024 | $304,502 | $238,886 | ($23,641.66) | ($4,906.11) | $13,804.01 | $528,644. |
4. Issue Four– Income over $350,000
i) Legal Framework
182The next issue is the use of the SSAG when a support payor earns over $350,000. This was also an issue in R.L. where the court found at para. 54 that the SSAG cannot be applied mechanically or automatically when the support payor’s income is above $350,000.
183In R.L., the Court of Appeal summarized the following approach to follow when dealing with a support payor whose income is above $350,000:
The SSAG can be used as a tool to assist in the individualized, fact-specific analysis in determining the appropriate quantum of spousal support. The analysis must also involve a consideration of the effects of any equalization payment and any child support: R.L., at para. 54.
“Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine location within that range”: R.L., at para. 54, citing Halliwell v. Halliwell, 2017 ONCA 349, at para. 116.
No technical formulae apply above the $350,000 ceiling and the same factors that go to entitlement have an impact on quantum which includes both amount and duration: R.L., at para. 54.
Discretion and case specific determinations are required: R.L., at para. 55.
The full amount of the payor’s income can be inputted as the appropriate amount or at a mid-way point between the $350,000 and the payor’s actual income: R.L., at para. 55.
$350,000 is not a hard ceiling or cap. Rather, it is an income level above which the court can exercise discretion to apply the exact results generated by the SSAG formula or determine the appropriate amount and duration of support with, above or below the ranges produced: R.L., at para. 55.
The basis for entitlement is important because it determines location with the formula ranges or justifies a departure form the ranges: R.L., at para. 56.
184In R.L., Kurz J. found that because the wife did not have a strong compensatory support claim and as there was also a non-compensatory basis for support, it was appropriate to consider the wife’s need as expressed in the budget of her financial statement in determining quantum of support when the husband earned substantially more than $350,000. The approach taken by Kurz J., which was upheld by the Court of Appeal, was to include all the husband’s income in his calculation but then set support using a figure below the low end of the range.
ii) Review of the Evidence and Analysis
185In 2022, Mr. Cialini’s income totaled $367,513. As it was only marginally higher than $350,000, in my view, his actual earnings for that year should be used to determine spousal support. It is only for 2024 that the issue must be considered.
186I attach as Appendix A the Divorcemate calculations I have prepared based on the income findings I have made as set out herein. If there are any errors in these calculations, the parties may schedule an attendance before me, in person, to make submissions on the issue.
187Based on the chart above, in 2024, Mr. Cialini’s income from all sources, was $528,644. According to the SSAG, based on that income and the income I have imputed to Ms. Cialini of $34,762, the range of spousal support in the low, mid and high range is $15,434, $18,006 and $20,438. (See attached Divorcemate calculations.)
188Ms. Cialini argues that given the length of their marriage, her strong compensatory spousal support claim, a relatively modest equalization payment of approximately $155,000, to be addressed below, her decreased standard of living as compared to Mr. Cialini’s standard of living post-separation, Mr. Cialini’s actual income should be used, and support be awarded at the mid-range of $18,006 per month.
189Ms. Cialini prepared a proposed budget as part of her financial statement sworn in January 2025 in which she claimed monthly expenses of $18,355, more than double what she had claimed as her actual expenses. This includes an amount of $4,000 per month for rent that Ms. Cialini testified she might incur if she decides to rent rather than purchase a home. However, she also testified that she intended to use her share of the proceeds of sale from the matrimonial home to purchase a new home.
190Assuming she purchases a home and has a very small mortgage, as she may have difficulty qualifying for a sizeable mortgage, that would reduce her monthly expenses as it is unlikely she will have a mortgage payment of $4,000 per month.
191In Mr. Cialini’s December 2024 financial statement, his proposed monthly expenses were $22,041, slightly more than Ms. Cialini’s proposed budget. His actual expenses were $18,908.
192Other than Ms. Cialini’s monthly food expense of $1,000 which I found to be high, I did not consider any of the proposed expenses claimed by either party to be unreasonable. I have considered both these proposed budgets when determining the appropriate level of support for 2024.
193The court can exercise its discretion when determining spousal support when the payor’s income exceeds $350,000: R.L. at para. 55. The basis for Ms. Cialini’s entitlement to support is important. When I consider Ms. Cialini’s need, as set out in her proposed budget in her January 2025 financial statement, the strong compensatory nature of her claim for spousal support, the financial positions of both parties post-separation, her imputed income, I find that spousal support in 2024 should be fixed at $12,000 per month.
194In fixing the amount at below the low end of the range, I have also considered the temporal gap between the date of separation and the date of the increased income. Specifically, the increased income was earned by Mr. Cialini six years after the parties separated. I have also considered that a sizeable portion of his income was from the vesting of his RSU, which was not a regularly recurring benefit. Lastly, I have also considered the objectives of spousal support as set out in the Divorce Act.
5. Issue Five – Quantum of Spousal Support
195Commencing January 1, 2024 and thereafter on the first day of each month, Mr. Cialini shall pay spousal support to Ms. Cialini of $12,000 per month based on his income of $528,644 and her income of $34,762.
196Based on my findings herein regarding the parties’ incomes, the quantum of spousal support is to be adjusted retrospectively commencing in September 2019.
197I find that the mid-range from the SSAG is to be used for spousal support in 2019, 2020, 2021 and 2023. In 2022, because of the portion of Mr. Cialini’s income generated by the vesting of his RSUs, I fix spousal support in the low end of the range for the reasons set out above. Based on the attached Divorcemate calculations, I find that the quantum of spousal support owing from September 2019 is as follows:
Year Monthly Support (gross) 2019 $ 9,124 2020 $ 8,482 2021 $ 8,299 2022 $10,502 2023 $ 9,161 2024 $12,000
198The lump sum amount owing for the prior years will have to be calculated based on after-tax figures for the years that Mr. Cialini has lost the tax deductibility of spousal support. In their closing submissions, the parties disagreed on how to calculate the after-tax amount. If they cannot agree on the after-tax amount, based on my findings herein, they may schedule a further attendance before me, in person, to address the issue. Preferably, they should jointly consult with an accountant to calculate the net after-tax amount owing.
199The retrospective support owing by Mr. Cialini shall be paid in a lump sum from his share of the proceeds of sale of the matrimonial home.
200Mr. Cialini will receive a credit for the spousal support he has paid to date.
201Mr. Cialini testified that he planned to retire prior to age 65 for several reasons including his ability to retire given his years of service at IBM and his father’s experience who had too few years to enjoy his retirement before he passed away. When cross-examined, Ms. Cialini agreed that she was aware that Mr. Cialini wanted to retire early and agreed that she heard him discuss retiring at the age of 58.
202While I heard no evidence of the impact of Mr. Cialini’s increased earnings on his retirement plans, it is reasonable to infer he might delay retirement until, at the very least, the current grant of RSUs fully vest.
203Mr. Cialini’s retirement will constitute a material change in circumstances, and the quantum of spousal support shall be subject to review at that time. Given Mr. Cialini’s intention to retire at a young age, it is foreseeable that he may choose to do some other work, such as consulting, even on a part-time basis. To be clear, no evidence was led of any post-retirement plans to work. Accordingly, spousal support will be subject to review when Mr. Cialini retires. The quantum of his ongoing support obligation at that time will depend upon decisions he makes upon his retirement and the sources of his income at that time.
204If they are not yet divorced, Mr. Cialini must maintain Ms. Cialini on his extended benefits for health and dental coverage through his employment for so long as she qualifies for such coverage and such benefits are available to him.
205Mr. Cialini shall name Ms. Cialini as the irrevocable beneficiary of life insurance on his life to secure his spousal support obligations to her. He currently has two life insurance polices but only one was disclosed on his financial statement. He is to name Ms. Cialini irrevocable beneficiary of that policy which has a face value of $100,000. He also testified that he has a second policy with a face value of $750,000. His two adult children are the named beneficiaries of that policy.
206If the parties cannot agree that the life insurance policy of $100,000 is sufficient to secure Mr. Cialini’s spousal support obligations, as I heard no evidence on this issue, if required, they may appear before me, in person, to address that issue.
207Mr. Cialini is to provide Ms. Cialini with a copy of the insurance policy to confirm that she is irrevocably designated as the beneficiary of the policy with a face value of $100,000.
6. Issue Six–Retrospective Support and Claim for Adjustments
208When the parties separated, Mr. Cialini continued to deposit his pay cheque into their joint RBC bank account #7552. Ms. Cialini had access to those funds. They had a separate RBC joint bank account #9646 into which they would transfer funds to pay various expenses. All housing expenses including home and car insurance, and car payments including for their daughters, was paid from the joint account.
209Although they were physically separated, the financial status quo continued for the initial six months after they separated as they did not separate their financial affairs.
210According to Ms. Cialini, she did not seek any support from Mr. Cialini during this time as all expenses continued to be paid from their joint bank account.
211Mr. Cialini testified that in July 2018, he decided to end this arrangement and he began to deposit 30 per cent of his net pay into the joint account thus separating their financial relationship for the first time. That arrangement continued until the parties signed the interim separation agreement in October 2019.
212Although Mr. Cialini did not plead that he was seeking a retroactive adjustment of support, seven years later, he now seeks an examination of each financial transaction from January 2018 to September 2019 to determine whether he overpaid child and spousal support and then a credit if he did.
213For several reasons, I am not prepared to engage in this forensic accounting process.
214A great deal of time was spent at trial hearing evidence about various transactions recorded in the parties’ joint bank account and conflicting evidence about who withdrew what amount and what expenses were paid. This time-consuming process was made more difficult because the disclosure for this claim was produced for the first time shortly before the trial. This included an initial chart prepared by Mr. Cialini based on his own examination of the financial records followed by a second detailed chart produced the day before trial.
215I am troubled that the first time Mr. Cialini advised that he intended to seek a review, reconciliation and adjustment for what he considerers to be an overpayment of support was when the parties attended a trial management conference on January 3, 2023, 3.5 years after this application was commenced.
216The application was commenced in April 2019 by Ms. Cialini. In her Application, Ms. Cialini sought support, equalization of net family property, exclusive possession of the matrimonial home and sale of family property.
217Mr. Cialini filed an Answer in August 2019. In his Answer, Mr. Cialini pleaded that Ms. Cialini had full access to the joint account funds and was receiving support regularly. He also pleaded that he had been paying support since he left the home. At para. 17, he pleaded that up until August 2018, he deposited his paycheque and commission payments to the joint account that they both used freely. He also pleaded that he also paid for half of the car insurance for Ms. Cialini and their two children and half of the taxes and insurance on the home.
218At para. 20 he pleaded that since November 2018 he had been paying roughly $5,000 per month and they had agreed that this would not be taxable for 2018. At para. 21, he pleaded that since May 2019 he had been paying close to $6,000 per month in addition to the other payments he had been making for the matrimonial home and children which were about $1,200 per month.
219Mr. Cialini also filed a Claim in August 2019 seeking equalization of net family property. In the claim he pleaded, at para. 2 that he continued to deposit his income, bonuses and commissions into the family joint account from which all matrimonial home expenses were paid. He also pleaded that Ms. Cialini had full use of the funds in that account without restriction. At para. 3, he pleaded that he stopped depositing his income to the joint account in November 2018 and commenced paying spousal and child support and other expenses for the home.
220At para. 5, he pleaded as follows: “the parties agreed not to address spousal support for 2018 and agreed that any additional support amounts would commence January 2019.”
221I am therefore at a loss to understand how Mr. Cialini can now seek to examine how the funds in the joint account were used when he never raised it as an issue anywhere in his pleadings and he pleaded that the parties agreed not to address spousal support for 2018 and that any additional amounts would commence in 2019. There were no amendments to this pleading.
222Mr. Cialini specifically addressed the financial arrangements that were in place after the parties separated in his pleadings. When he drafted his pleadings, therefore, he would have been fully aware of the transactions in and out of the joint account that he and Ms. Cialini accessed. If he was of the view there was an overpayment for which he was seeking a credit, he could have and should have raised it in his pleading. He did not.
223Fast forward 3.5 years to the trial management conference (TMC) conducted on January 3, 2023. In the Trial Scheduling Endorsement Form he filed for that conference, Mr Cialini said, for the first time, that one of the issues for trial was “post separation adjustments”. At the TMC, no information was provided by Mr. Cialini of the amount he was seeking.
224Prior to the TMC the parties had attended both a case conference and a settlement conference, where Mr. Cialini did not raise an issue of an adjustment for support paid prior to the 2019 interim separation agreement.
225Following the TMC, the first time Mr. Cialini produced any disclosure in connection with this new claim was when he served his Exhibit Book for trial. The Exhibit Book included a chart Mr. Cialini prepared providing a monthly summary between January 2018 and September 2019 of his analysis of various transactions from the RBC joint account statements and what he said was paid and what in his view was an overpayment.
226The night before the trial commenced, Mr. Cialini’s lawyer emailed Ms. Cialini’s lawyer an updated chart showing the specific amounts he was claiming.
227These charts were colour-coded and have various headings such as account number, date, deposit, a listing of joint expenses and a determination of what he said was the parties’ proportionate share of the joint expenses, amounts that were his own expenses and then a colour-coded comment section. This second chart was different and more detailed than the first chart. It was clear that Mr. Cialini spend a considerable amount of time preparing these detailed charts.
228In my view, it would have been impossible to decipher that chart overnight prior to trial.
229Let me be clear. This is not the way to conduct family law litigation. A party cannot produce details or particulars of their claim on the eve of trial and by eve, I mean the month or two prior to the trial particularly when litigation has been ongoing for seven years.
230Mr. Cialini had the opportunity to amend his pleadings. He did not. Mr. Cialini had the opportunity to raise the issue at the case conference or settlement conference. He did not. In fact, by the time a settlement conference is conducted, parties are to have completed the exchange of all disclosure so that they can engage in fulsome settlement discussions to try and resolve or narrow issues prior to trial. By the time of the settlement conference, all claims should be on the table and all disclosure exchanged in support of those claims so that they can be fully canvassed at the settlement conference.
231A TMC is to discuss trial management issues such as what issues are settled and those that are proceeding to trial, the witnesses to be called, etc. and to identify any evidentiary issues. A TMC is not when a party ought to be raising a significant new issue, 3.5 years after the litigation commenced, for the first time that differs from the position taken in their pleading. This flies in the face of the purpose of the Family Law Rules which is to provide a fair and efficient procedural framework of how family law cases are conducted. The rules aim to ensure that cases are handled with fairness and proportionality. A central purpose is to require full, timely and ongoing financial and other documentary disclosure. This is done to promote settlement and timely resolution.
232In my view, advancing this significant claim at the TMC for the first time was fundamentally unfair to Ms. Cialini for several reasons and was compounded by the lack of any disclosure from Mr. Cialini regarding the specifics of the claim and the overpayment he was seeking for almost another two years after he first raised the issue.
233The first reason why it was fundamentally unfair to Ms. Cialini is that Mr. Cialini was to have provided his complete disclosure by the time the settlement conference was conducted. Disclosure is not to be produced for the first time in an Exhibit book prepared for trial.
234Second, Ms. Cialini should not have been ambushed with a new claim first advanced at the TMC where the parties were to discuss trial management issues. Pleadings frame the litigation. Ms. Cialini was entitled to rely on the pleadings and specifically Mr. Cialini’s pleading that they agreed not to address spousal support for 2018 and any additional support amounts would commence in 2019.
235As the Court of Appeal has affirmed, the most basic obligation in family law is the duty to disclose financial information and that duty is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11. Mr. Cialini failed his most basic obligation by firstly not disclosing his claim for a retroactive adjustment until the TMC and then not providing any disclosure regarding the specifics of that claim until the eve of trial.
236The charts and summaries Mr. Cialini prepared ought to have been produced at the latest at the TMC when he first informed Ms. Cialini of this new claim. Ms. Cialini ought to have had the opportunity to review and perhaps question Mr. Cialini, in advance of trial, to determine how he arrived at his assessment of what amounts were spent, and how he calculated the sharing of various expenses. Quite frankly, she may have required an accounting expert to assist with this forensic examination.
237Another area of unfairness is, had Ms. Cialini been aware that there was going to be this sort of forensic examination of the funds withdrawn and expenses paid from the joint account, she could have maintained records and a log at the time for later use. Relying on the pleadings and the lack of any discussion of the issue prior to the TMC, she had no reason to either keep receipts or records of how funds were used from that account. Furthermore, it is difficult to be asked questions about each transaction from a bank account that occurred years earlier. Had Ms. Cialini known of Mr. Cialini’s intention to advance this claim, she could have maintained appropriate records so that she could fairly address the claim.
238In addition to the procedural unfairness to Ms. Cialini, there is another reason why I consider this claim to be unfair. Ms. Cialini organized her financial affairs to the date of the interim separation agreement on the basis that there were no financial issues regarding support prior to that date. In my view, the separation agreement is clear that either party could seek a higher or lower amount of support, to be adjusted retroactively but that is with respect to the agreement and not what transpired prior to the agreement. If their intention was that support was to be adjusted retroactively to the date of separation, that ought to have been stated clearly in the interim separation agreement. It did not. The agreement did not address anything that was paid, or not paid, prior to September 2019.
239Mr. Cialini argues that his request to add a new claim is similar to the change in Ms. Cialini’s position on the eve of trial to request that the employment pensions be divided through the equalization process and not at source. I do not agree. That is a change in a legal position. It does not require new disclosure. While I agree that a party should know in advance of trial the opposing party’s legal position on all issues, this does not compare to the fundamental unfairness caused by adding a new claim years after pleadings have been exchanged and a settlement conference completed and then the production of disclosure on the eve of trial.
240I also note that in his own Answer, Mr. Cialini pleaded that the parties will either divide the pensions at source or deal with them in the equalization calculation. He was aware, therefore, that this was an issue to be addressed. Ms. Cialini was given no such notice of his claim seeking a retroactive adjustment in his pleading.
241For all these reasons, I dismiss Mr. Cialini’s claim to seek an adjustment of any support paid prior to September 2019.
242I am also not prepared to consider a review of any child support owing from September 2019 until L. completed university in April 2020. The parties agreed that Mr. Cialini would pay her tuition and Ms. Cialini would be responsible for other expenses. I heard no evidence of what L’s expenses were when she attended university and whether she worked during the summer and therefore had savings to assist supporting herself at school. I am therefore not prepared to consider any review of support for that eight-month period.
7. Issue Seven – Occupation Rent and Sale of the Matrimonial Home
243Mr. Cialini seeks occupation rent from Ms. Cialini. The period for which he seeks it was a bit of a moving target at trial. When he was questioned in chief, he initially said he was seeking it from January 2019 then changed his position to a period commencing in April 2020 as they agreed not to sell the home before that date. In his closing submissions, his position was that Ms. Cialini should pay him occupation rent commencing in December 2021 as that is when she denied his request to use his equity in the home to secure financing through a HELOC to be registered on title to the home. In the alternative, he claims occupation rent from May 2023, as that is the date the court ordered, on consent, that it be sold.
244Mr. Cialini argues that his share of the equity in the home is sizeable – approximately $800,000 to $850,000, depending upon its sale price. He argues that he wanted to access his equity to finance the purchase of other property by way of a HELOC registered on title that he would have been responsible to pay. In a text exchange in March 2021, Ms. Cialini did not consent to his request to register a HELOC on title. He therefore seeks occupation rent as Ms. Cialini has had the benefit of his equity in the home for many years.
245Ms. Cialini argues that she wanted to sell the home, but the parties initially agreed not to sell it until L finished university in April 2020, and then until after the COVID-19 pandemic. There was then an order made on consent at the January 2023 TMC that it be sold in May 2023 if Mr. Cialini did not first seek to purchase Ms. Cialini’s interest in the home.
246Ms. Cialini argues that it has been Mr. Cialini who has not wanted to sell the home and then not cooperated with its sale and therefore there is no basis to order occupation rent. She also seeks an order to dispense with his participation in the listing and sale process.
i) Review of the Evidence
247Given the allegations about who did or did not want the home sold, I will review the evidence about the discussions regarding the sale and steps taken, or lack thereof, for the sale.
248Both parties have enjoyed modest shelter costs since they separated. Ms. Cialini has been living in the mortgage-free matrimonial home and Mr. Cialini resides with his mother in Hamilton. He does not pay her any rent but testified he helps with expenses. Pursuant to the October 2019 interim separation agreement, the parties have each been paying 50 percent of the property taxes, insurance, and major repairs for the matrimonial home. Ms. Cialini pays for utilities and regular maintenance expenses.
249According to Ms. Cialini, before the parties entered into the October 2019 interim separation agreement, she wanted to list the house for sale. Mr. Cialini agreed that Ms. Cialini requested the home be sold in August 2019. Ms. Cialini testified that at that time, due to the inconsistency in the money that Mr. Cialini was depositing into their joint account each month for her support, she could not afford to pay the carrying costs of the home. It was also her evidence that Mr. Cialini told her that he was going to cancel her access to their credit cards. She testified that she was scared as she did not know how she could continue to live in the home and so she wanted it sold. She was also aware that he was seeking occupation rent from her.
250It was an agreed fact that in January 2019, Mr. Cialini informed Ms. Cialini that he did not require his equity in the home.
251The parties subsequently agreed not to sell the home until L completed university in April 2020. This term was included in the interim separation agreement.
252The parties both testified that they decided not to list the house for sale in April 2020 because of the COVID-19 pandemic. According to Ms. Cialini, she did not have any other discussions with Mr. Cialini about when it would be listed for sale.
253Ms. Cialini testified about a text exchange with Mr. Cialini in March 2021 about financing to purchase her share of the Hamilton property. Mr. Cialini told her that she might get a phone call from the bank. According to Ms. Cialini, that morning she received a phone call from the bank and was told that Mr. Cialini wanted to register a HELOC against the matrimonial home. Ms. Cialini understood that Mr. Cialini wanted the matrimonial home transferred into his name so that he could obtain this financing; she did not agree. It is not clear to me that Mr. Cialini was seeking to transfer the home to his name but that was Ms. Cialini’s understanding of the situation at that time.
254Mr. Cialini eventually purchased Ms. Cialini’s interest in the Hamilton property in December 2021. He testified that when Ms. Cialini refused to allow him to register a HELOC against the matrimonial home, he had to arrange for alternate financing using two different credit lines to pay the existing mortgage on the Hamilton property. He then obtained a new mortgage from which he paid Ms. Cialini $125,000 for her share of the Hamilton property. He says that he had to pay a higher interest rate than he would have had he been able to use a home equity line of credit on the matrimonial home.
255In a text from Ms. Cialini dated April 3, 2021, she told Mr. Cialini that there may be people interested in buying the house and that the real estate agent was prepared to charge a lower commission. There is no evidence that either party took any steps to follow up with those interested parties.
256According to Ms. Cialini, Mr. Cialini told her that he wanted to purchase her interest in the home, but he never made her an offer.
257At the TMC in January 2023, Emery J. made an order that if Mr. Cialini did not buy Ms. Cialini’s interest in the home by March 31, 2023, it would be listed for sale.
258In a text exchange on April 6, 2023, following this order, Ms. Cialini texted Mr. Cialini saying they needed to speak with their daughters about the home. His response was that she could talk to them about “her decision” to sell. When she said it was not her decision, his response was: “[w]e spoke of delaying, no need to sell now. You took it to court to get an order and as such it is 100% your choice and decision.” In that text exchange, Mr. Cialini also said, “… I don’t think it’s good to sell and have said that repeatedly.”
259In another text message that same day, Mr. Cialini said:
I spoke to my lawyer before and after. As you are well aware, you and your lawyer brought the motion forward – so not mutual. I had no choice as it’s your right to force the sale, which you did with the motion and subsequent order – so not mutual. Now that you got the order that you requested, it’ll ALL you decision on if/when you want to sell.
260In another text message that day, Mr. Cialini said: “Mary, it is and has always been our decision. We can sell whenever we want. I don’t want to sell now. The order means you can order me to sell whenever you decide… [T]here is no need to sell the house at this time.”
261To be clear, Ms. Cialini did not bring a motion to sell the home; the order was made on consent at the TMC.
262Following these text exchanges, Ms. Cialini proposed three names of realtors to list the property for sale. Mr. Cialini texted Ms. Cialini on May 2, 2023 and asked what her thoughts were on selling, or not. He then told her he was in contact with the three realtors that she proposed. According to Ms. Cialini, Mr. Cialini did not agree with any of the agents she proposed but made no proposal about what agent he wanted to use.
263Mr. Cialini agreed that he did not propose any listing agents in response to the list Ms. Cialini proposed.
264According to Ms. Cialini, she asked Mr. Cialini in 2023 to divide the contents of the home as she wanted to declutter before listing if for sale. She testified that it was only in December 2024 that Mr. Cialini removed some of the contents of the home that he wanted but not all. For example, he still has an old vehicle stored at the home that she has asked him to remove.
ii) Applicable Legal Principles and Analysis
265In Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), at paras. 49-50, Osborne J.A. held that a judge has jurisdiction to order that occupation rent be paid if it is reasonable and equitable to do so. The relevant factors to be considered will vary from case to case. However, in a family law context, some factors are consistently taken into account such as: (a) the timing of the claim for occupation rent; (b) the duration of the occupancy; (c) the inability of the non-resident spouse to realize on his or her equity in the property; (d) any reasonable credits to be set off against occupation rent; and (e) any other competing claims in the litigation. The weight to be given to these and other relevant factors is a matter for the judge to determine.
266In Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), Quinn J., after reviewing the jurisprudence, stated at para. 53, that the following factors must be considered in making an order for occupation rent:
(a) the conduct of the non-occupying spouse, including the failure to pay support;
(b) the conduct of the occupying spouse, including the failure to pay support;
(c) delay in making the claim;
(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;
(f) whether the occupying spouse paid the mortgage and other carrying charges of the home;
(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;
(h) whether the occupying spouse has increased the selling value of the property; and
(j) ouster is not required.
267As reflected in the jurisprudence, orders made for occupation rent are discretionary and depend on multiple factors.
268In applying the factors found in the jurisprudence, I note that Mr. Cialini requested occupation rent in his pleadings. This is not a recent request. Second, Ms. Cialini has been living in the home for seven years with the benefit of Mr. Cialini paying 50 percent of several of the major expenses. There is substantial equity in the home. These factors all support a claim for occupation rent.
269There are other factors, however, that weigh against ordering occupation rent.
270This is an unusual situation. Typically, the party who is not residing in the property in which there is significant equity, is the party who wants the property sold. In this matter, I find that Mr. Cialini was the party who did not want the home sold. This is reflected in his text messages as recently as April 2023 where he clearly stated he did not want the home sold. Furthermore, when the three realtors proposed by Ms. Cialini were, for whatever reason, not acceptable to Mr. Cialini, he did not make any counterproposal for his choice of realtor.
271Although Mr. Cialini testified that he never made an offer to purchase Ms. Cialini’s interest in the home, he clearly wanted to keep his options open as reflected in the interim separation agreement where he had the right to purchase her interest in the home prior to April 30, 2020 and based on the order of Emery J., that again indicated that he had the right to do so by March 31, 2023. Why else would that term be included in a consent order if Mr. Cialini did not want to explore purchasing Ms. Cialini’s interest in the matrimonial home? If he had no interest in purchasing her interest and wanted it sold, this term would not have been included in either the interim separation agreement or the court order. I see no basis, therefore, to order any occupation rent until, at the earliest, May 2023, as up to April 2023, it was Mr. Cialini who did not want the property sold.
272Mr. Cialini says he has been denied access to his equity in the home when Ms. Cialini did not agree that he could register a HELOC against the mortgage-free matrimonial home. He says he wanted to do this twice; first to purchase Ms. Cialini’s interest in the Hamilton property and second when he purchased an interest in a property in San Francisco in 2019. While he obtained alternate financing for both transactions, he says he was charged higher rates of interest than he would have been charged had he used a HELOC.
273In my view, it is understandable why Ms. Cialini did not want to encumber the home with financing to be used by Mr. Cialini for these real estate purchases, even if Mr. Cialini would have been solely responsible for paying the HELOC. I say that as it is not disputed that Mr. Cialini handled the family finances during the marriage. When the parties separated, Ms. Cialini was in a vulnerable financial situation. She had no job, no income, no credit card or even a bank account in her name. She was completely financially dependent on Mr. Cialini. The security she had was living in a mortgage-free home. I therefore find her reluctance not to agree to a HELOC to be understandable given her circumstances at that time.
274Furthermore, if Mr. Cialini needed access to his equity, as he claims, he could have sought an order for the sale of the home, but he did not. While seeking an order for the sale of the property is not a prerequisite for seeking occupation rent, it is a factor I have considered.
275Given the circumstances, I consider Mr. Cialini’s inability to access the equity in the home to be a neutral factor. I have also considered his inaction in taking any steps to list the property for sale, after being presented with proposed names for realtors, as a factor in the exercise of my discretion.
276While the value of the home may have increased since January 2018, there is no evidence that the increase was the result of Ms. Cialini’s efforts. Any increase in value is likely attributable to market forces.
277While the adult children have also continued to live in the home, I do not consider that to be a relevant factor given their age. They both work and have benefitted as they have not had to pay any shelter costs as Ms. Cialini has not required them to pay her any rent.
278Both parties have had the benefit of modest accommodation expenses since the date of separation. This is a factor I have considered in assessing whether in all the circumstances an order should be made for occupation rent.
279I also note that while Mr. Cialini has taken no steps to sell the property, Ms. Cialini has also taken no steps, other than proposing three realtors as listing agents in April 2023, despite her evidence that she wants it sold. When Mr. Cialini did not respond to her proposal for a listing agent, she could have contacted an agent to prepare a listing agreement and then sent it to Mr. Cialini to sign.
280Ms. Cialini has benefitted by living in the home for an extended period with Mr. Cialini contributing to most of the carrying costs. I have considered this factor in exercising my discretion in determining if occupation rent should be ordered.
281I am mindful that while an order for occupation rent must be reasonable, it need not be exceptional: Non Chhom v. Green, 2023 ONCA 692, at para. 8.
282When I weigh all the factors and use a contextual approach, I find that Ms. Cialini should pay occupation rent commencing in May 2023 until the home is sold.
283The onus is on Mr. Cialini to lead evidence of the appropriate amount for occupation rent. This is often done through a real estate agent who will testify about the rental cost for a home of similar attributes such as size, condition, location etc. Mr. Cialini failed to lead any such evidence.
284However, Ms. Cialini testified that the cost to rent a similar home was $4,000 per month. Mr. Cialini’s position is that he is seeking occupation rent of $1,500 per month. Given Ms. Cialini’s evidence, in my view that is a fair and reasonable amount, and I therefore find that Ms. Cialini owes Mr. Cialini $1,500 per month in occupation rent commencing in May 2023. The amount of equity in the home and the length of time that Ms. Cialini has resided in the property are two of the several factors I have considered, in exercising my discretion to make this order.
285The occupation rent is to be paid by Ms. Cialini from her share of the net proceeds of sale of the matrimonial home.
286Ms. Cialini seeks an order dispensing with Mr. Cialini’s consent or participation with the sale of the home. There is no basis to make that order. There is no evidence that Mr. Cialini has interfered with the sale process. The fact that he did not propose the names of any realtors is not evidence that he has interfered with the sale process such as refusing to sign a listing agreement or interfering with showings of the home.
287The fact that he is busy with work and often away or out of the country for work is also not a basis to dispense with his participation in the sale process. He can execute any necessary paperwork electronically and any necessary meetings can be conducted virtually.
288That relief is denied.
289Accordingly, the matrimonial home shall be forthwith listed for sale with a mutually accepted real estate agent who works in Mississauga. The current arrangement to pay the expenses for the home shall continue until its sale.
290The parties are to follow the advice of the listing agent regarding any work to be done to the home prior to sale. Any such recommended work shall be paid equally by the parties. They shall also follow the advice of the listing agent regarding the list price for the home and any offers or counteroffers.
291The parties are to also agree on a real estate lawyer to represent them in the sale.
292The net proceeds of sale are to be divided equally between the parties, subject to the various adjustments to payments set out in these reasons.
293If the parties have any issues regarding the sale, they may appear before me, in person, to address the issues.
8. Issue Eight – Should the Pensions be Divided at Source?
i) Legal Framework
294According to s. 5(1) of the Family Law Act, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half of the difference between the two of them.
295Pursuant to s. 4(1)(c) of the FLA, pensions are considered property. According to that section, “in the case of a spouse’s rights under a pension plan, the imputed value for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date.”
296Section 9 of the FLA lists several orders that the court may make in determining a spouse’s entitlement to an equalization of net family property. Section 10 of the FLA sets out orders the court may make when a person applies to the courts for a determination of an issue of ownership or right to possession of particular property other than questions arising from an equalization of net family property.
297Section 10.1 of the FLA deals with an interest in a pension. Section 10.1(3) provides for when an order may be made for the immediate transfer of a lump sum out of pension plan. According to that section, “[a]n order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.”
298Section 10.1(4) sets out the following factors for the court to consider in determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred.
The nature of the assets available to each spouse at the time of the hearing.
The proportion of a spouse's net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
Any contingent tax liabilities in respect of the lump sum that would be transferred.
The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.
299While section 10.1 of the FLA provides that the court may order the immediate transfer of a lump sum from the pension plan, there is no presumption in favour of a lump sum transfer; each case depends on its own facts: VanderWal v. VanderWal, 2015 ONSC 384, at para. 11; Fortier v. Lauzon, 2017 ONSC 7503, at para. 38, aff’d 2018 ONCA 1086.
300In Fortier, at para. 40, the court summarized the jurisprudence as follows:
i. where the employment pension was the most significant asset owned by the parties and it was the only method by which the applicant would realize the equalization payment owed to her, the court ordered a transfer by pension rollover (O’Kane v. O’Kane, 2013 ONSC 1617);
ii. where neither party had much in the way of liquids assets; over half of the wife’s net family property was related to her future pension; the pension was to be locked in for many years and not liquid in either party’s hands; the husband had no pension or provision for retirement savings; and if the pension was not divided at source, the wife would have to deplete almost all her liquid assets to satisfy the equalization payment, the court ordered equalization by way of a pension transfer (Spurgeon v. Spurgeon, 2016 ONSC 14);
iii. where the applicant’s pension constituted a great portion of her net family property, both parties were in their early 40s, and the court was satisfied that each of the parties would be able to meet their needs in retirement; and the equalization payment of $35,660 represented only one quarter of the net proceeds of sale which the wife was to receive upon this matrimonial home being sold, leaving her with over $100,000 to invest in a new home, the court refused to order the equalization satisfied by way of a pension transfer (VanderWal);
iv. where there was a young child residing with the pension holder; the pension transfer would require the non-pension holder to pay an equalization of $55,000 which could significantly impact the type of residence that she could afford; and a cash payment would require the pension holder to provide a small amount to satisfy the equalization and both parties would come out of the relationship at roughly the same amount of cash, placing them in equal liquidity, the court ordered a cash equalization (Jackson v. Mayerle, 2016 ONSC 72); and
v. the pension holder cannot force the other spouse to accept a deferred payment of a share of his pension to ease his own liquidity position in the face of the clear words of section 9(1) of the Family Law Act (Tupholme v. Tupholme, 2013 ONSC 4268).
ii) Review of the Evidence and Analysis
301The parties jointly prepared a Comparison of Net Family Property Statements that I have attached as Appendix B.
302According to Ms. Cialini’s calculations, her net family property on the date of separation was $1,101,352.32 and Mr. Cialini’s was $1,411,529.92. Mr. Cialini would therefore owe Ms. Cialini an equalization payment of $155,088.80.
303Those calculations include $33,827.13 as the value of Ms. Cialini’s HOOPP pension and $300,172.67 as the value of Mr Cialini’s pension held by Sunlife. From those amounts she deducted the contingent tax on the pensions of $3,382.71 for Ms. Cialini and $68,594.12 for Mr. Cialini. Those tax calculations are not in dispute. Ms. Cialini included the pension values in the net family property statement as her position is that the value of the pensions should be included in the calculation of net family property and not divided at source.
304According to Mr. Cialini’s calculations, Ms. Cialini’s net family property on the date of separation was $1,082,419.42 and his was $1,067,056.48. Based on these figures, Ms. Cialini would owe him an equalization payment of $7,681.47. He did not include either pension or the contingent tax liability in his calculations as his position is that the pensions should be divided at source.
305According to Ms. Cialini, she seeks an order that the pensions be part of the equalization process as she needs access to funds as she has liquidity issues. Her evidence is that she has been encroaching on her capital since the date of separation through the sale of 300 of the 400 IBM shares in her name in 2019 for approximately $56,000 CDN and use of the $125,000 she received when Mr. Cialini purchased her interest in the Hamilton property in December 2021. In addition, all funds in the parties’ joint bank accounts have been depleted. Her evidence is that she has been required to use all these funds to pay for personal living expenses, the balance owing on her car loan, and legal fees.
306In addition to her employment pension, her only remaining savings is her RRSP that had a value of $62,043 on the date of separation. According to her financial statement sworn in January 2025, the RRSP has grown to a value of $89,342. It is not clear to me if that growth is simply due to market forces or if Ms. Cialini was able to make some further contributions post separation. While she listed a bank account with RBC ending in 6448 with a balance of $75,255 in her October 2024 financial statement, the balance in that account was only $227 in her January 2025 financial statement.
307Ms. Cialini’s credit card debt has also increased between the October 2024 and January 2025 financial statements. In October 2024, the balance on her RBC credit card ending in 9956 was $4,996 and in January 2025 it was $20,569.
308Ms. Cialini argues that because she does not have access to any liquid funds, she seeks an order that the pensions be equalized as Mr. Cialini will then owe her an equalization payment of approximately $115,000. She also argues that the equalization payment can be paid by Mr. Cialini from his share of the proceeds of the sale of the home.
309When the matrimonial home sells, the parties anticipate that they will each receive between $850,000 and $900,000. Ms. Cialini anticipates using those funds to purchase a smaller home as if she were to rent, it would cost her approximately $4,000 per month.
310In my view, purchasing a new residence is a reasonable use of those funds. She may be required to use most of those funds to purchase a home as her ability to qualify for any sort of significant mortgage financing may be impaired by her modest employment earnings, even with a spousal support order.
311Mr. Cialini’s financial position has improved post-separation. He now owns the Hamilton property and since 2019, he owns a 25 percent interest in a property in San Francisco. He is also on title as a joint owner with his girlfriend of a property in Texas that was purchased in 2023 although he says he owns his 50 percent in trust for his girlfriend.
312Mr. Cialini testified that he purchased an interest in a condominium in San Francisco in July 2019 as he was spending more time working in San Francisco and thought it was better than renting a hotel room. There are three other owners who are colleagues from IBM; each has a 25 percent interest in the property. The total price paid was $1,299,000. His 25 percent interest was $324,750. His evidence was that he used a Royal Bank line of credit for his share of the $70,000 CDN downpayment. The property is rented to tenants. Mr Cialini testified about the rental income earned each year from the property and the expenses incurred each year that are shared amongst the owners. The evidence is that each year, a rental loss has been declared.
313Mr. Cialini agreed that he did not disclose his interest in this property in his financial statement sworn on December 20, 2022, because he forgot to include it. He also did not include any net rental income from that property. He agreed that he also did not disclose a Bank of America bank account that he owned when he swore that financial statement. He said he forgot to disclose it until his fourth financial statement sworn on December 23, 2024.
314In his financial statement sworn in December 2024, Mr. Cialini swore that his share of the San Francisco property was $355,357 and the mortgage owing was $336,062. In his financial statement sworn January 8, 2025, he said the value of his share was $221,250 and the mortgage owing was $241,069. No evidence was led regarding the appraised value of this property and how he arrived at the lower value in January 2025.
315In connection with the second property in the United States, Mr. Cialini testified that his girlfriend sold her home in Kansas to move to Texas for her job. She bought a property in Texas in April 2023. He gave her $12,000 USD to help with the offer; he said it was not a downpayment. I fail to see the distinction. When he was cross-examined, he initially said he expects to eventually be repaid and then said it was a gift. Mr. Cialini testified that he is on title to the property as a joint owner to protect the property from his girlfriend’s former partner and to maintain it for her daughter who has mental health issues. According to Mr. Cialini, if his girlfriend passes away, there is an oral agreement he will become the owner of the property and will care for his girlfriend’s daughter. When the property sells, the funds are to go to the daughter.
316Despite testifying that his girlfriend qualified for mortgage financing on her own, according to mortgage documentation, Mr. Cialini is also named as a borrower.
317His evidence was that his girlfriend pays for all the property expenses; he will pay for repairs.
318There is no written agreement between Mr. Cialini and his girlfriend regarding this arrangement nor was his girlfriend called as a witness to testify that despite Mr. Cialini being on title and named on the mortgage, he owns his share in trust for her.
319Based on the totality of the evidence, and lack thereof, I am not satisfied that Mr. Cialini holds his interest in the Texas property in trust for his girlfriend.
320The relevancy of Mr. Cialini’s ownership in these other properties is in assessing the relative financial positions of the parties, post-separation.
321Other than his equity in the matrimonial home, Mr. Cialini’s pension was his most significant asset on the date of separation. He argues that to require him to pay for his pension through the equalization process will result in unfairness as he will only be able to fund it from his share of the proceeds of sale of the matrimonial home. If the equalization payment is $155,000 and his share of the net proceeds are $900,000, that represents approximately 17 percent of his share of the proceeds of sale. This is a factor to consider.
322He also argues that it would be best for Ms. Cialini if the pensions were divided at source as she will then have access to pension funds when she retires. This is a statutory factor to consider.
323While Ms. Cialini argues she has a liquidity problem, Mr. Cialini says that the funds she has accessed since the date of separation have been primarily used to pay for legal fees and on that basis, her liquidity problem should not be a factor in determining whether the pensions should be divided at source or included in the equalization process.
324On the date of separation, Mr. Cialini’s pension comprised about 20 percent of his assets. The largest asset was his share of the equity in the matrimonial home of approximately $900,000, followed by his pension with a value of $390,000. Since the date of separation, his financial position has improved as compared to Ms. Cialini’s financial situation as he is now the sole owner of the Hamilton property which generates income for him, or a tax-deductible loss, has an interest in a property in San Francisco that also generates income for him, or a tax-deductible loss, and some kind of interest in a property in Texas. There has also been a significant increase in his income post-separation.
325While Mr. Cialini’s debts have also increased, the bulk of the debt was incurred to purchase the Hamilton property and his interests in the San Francisco and Texas properties. While he also has increased his credit card debt, that does not detract from the fact that post-separation, he has been able to acquire an interest in three additional properties.
326Conversely, Ms. Cialini has depleted some of her capital since the date of separation and has not acquired any additional property.
327In connection with Mr. Cialini’s argument that Ms. Cialini’s liquidity problem is due to legal fees, the reality of this litigation is that both parties have incurred significant legal fees and both parties have had to arrange to pay for this litigation. Had her liquidity issues arose from the improvident use of assets such as funding a lavish lifestyle or through other reckless behaviour, that would be an issue. Use of assets or debts to fund litigation is to be expected in this sort of context; Ms. Cialini cannot be faulted for that. I do not consider this to be a factor in determining if the pensions should be divided at source.
328I have also considered Mr. Cialini’s evidence that until shortly before trial, Ms. Cialini had not requested that the pensions be paid and not divided at source.
329While the resources available to each spouse to meet his or her needs in retirement it is a factor to consider in s. 10.1(4) of the FLA, in my view, Ms. Cialini should be able to make her own decisions about the financial arrangements that are best for her. I find that Ms. Cialini should be free to deal with her property as she considers appropriate and make decisions about her own finances and when she needs access to the funds. For example, she may decide to invest some of the equalization payment into her RRSP to access at a future date.
330When I consider the factors set out in s. 10.1(4) of the FLA, and the totality of the circumstances of both parties, while it is a close call, I find that the pensions are not to be divided at source but to be equalized as part of their net family property.
331Mr. Cialini has funds to pay the equalization payment of approximately $115,000. He can pay it from his share of the proceeds of sale. He did not testify about needing the funds to purchase a new residence. If he intends to do so, he is in a far superior position to qualify for a mortgage to assist with the purchase of a new home. He will not have to deplete most of his liquid assets to fund the payment.
9. Issue Nine – Can the Parties Deduct the Notional Disposition Costs for the Hamilton Property?
i) Legal Framework
332The parties cannot agree on whether capital gain taxes in connection with the Hamilton property should be deducted by either party in calculating their net family property.
333The definition of net family property in s. 4(1) of the FLA means “the value of the property, except properly described in subsection (2), that a spouse owns on the valuation date, after deducting, (a) the spouse’s debts and other liabilities, including for greater certainty, any contingent tax liabilities in respect of the property.”
334This section makes it clear that a contingent tax liability, such as capital gain taxes, are to be excluded from the calculation of the value of the property. The section does not set out how those taxes are to be calculated.
335Disposition costs should be included in valuing an asset on the date of separation where it is clear, on a balance of probabilities, that those costs will be inevitable upon sale of the asset and there is satisfactory evidence of a disposition date: Sengmueller v. Sengmueller, 17 O.R. (3d) 208 (C.A.). Under those circumstances, the disposition costs would be speculative. The court also found that each case must be dealt with on its own facts, considering the asset in question and the evidence of the probable disposition.
336Where it is not clear when, if ever, a property will be sold and the taxes incurred, the speculative disposition costs are not to be considered in the calculation of net family property: Rick v. Brandsema, 2009 SCC 10, 303 D.L.R. (4th) 193. The court does not have to determine if the deposition of the asset is inevitable but rather, based on the evidence, whether it is more likely than not that the asset will be sold at which point, disposition costs will inevitably be incurred: Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, at para. 20.
337In determining the disposition costs of an asset, evidence is required as to the time of disposition, and the likely disposition costs at that time. The present value of those disposition costs must then be calculated: Plese v. Herjavec, 2018 ONSC 7749, aff’d 2020 ONCA 810.
ii) Review of the Evidence and Analysis
338In December 2021, Mr. Cialini purchased Ms. Cialini’s 50 percent interest in the Hamilton property for $125,000. In her income tax return for that year, she declared a capital gain of $32,048 because of this payment from Mr. Cialini and paid $12,686 for income tax on that capital gain.
339In the comparison NFP statement, Ms. Cialini included $12,686 as the notional disposition costs in connection with the taxes paid for the capital gain she declared. This was based on a marginal tax rate of 39.5 percent. Based on the jurisprudence reviewed above, the contingent liability on the date of separation is the present value of the tax she paid, presumably in 2021.
340Ms. Cialini argues that there is insufficient evidence for the court to find that it is more likely than not that Mr. Cialini will be selling the Hamilton property and therefore the deduction for the contingent liability for capital gain tax that will be owing should not be included in his net family property.
341Mr. Cialini testified that he had no plans of selling the Hamilton property until he retires. He also testified that he wanted to retire prior to the age of 65 and, although disputed by Ms. Cialini, says that this was discussed with her during the marriage. He testified that he currently qualifies to retire from IBM as he has met his years plus age of service factor to qualify to receive his pension. His undisputed evidence is that he plans to retire at age 58.
342Ms. Cialini argues that while Mr. Cialini testified that he plans to sell the Hamilton property when he retires, he has not given notice to his employer of an intention to retire.
343In my view, giving notice to retire is not determinative of the issue. It is not speculative if or when Mr. Cialini plans to sell the property. His evidence of his plan to sell it when he retires was not challenged in cross-examination. Based on retirement at age 58, the tax liability is to be calculated at that time and then the present value of that liability on the date of separation used as the contingent liability. If the parties cannot agree on that tax calculation, they can appear before me in person to address the issue.
344Once the notional disposition costs are included in Mr. Cialini’s net family property, the parties will be able to determine the equalization payment owing to Ms. Cialini. It will be less than the $155,088 she has calculated.
345The equalization payment is to be paid from Mr. Cialini’s share of the proceeds of sale.
346I make no order for pre-judgment interest on the equalization payment owing as neither party has taken any steps to realize on the equity in the matrimonial home – the largest asset - since the date of separation. Furthermore, Ms. Cialini changed her position regarding the division of pensions several years after the litigation commenced. In all the circumstances, I find that the fair and appropriate outcome is to order no pre-judgment interest on the equalization payment.
347Ms. Cialini is not seeking any pre-judgment on any arrears of spousal support owing.
Conclusion
348There may be mathematical errors in these reasons. If there are, the parties may schedule an attendance before me, in person, to address any of those errors.
349If the parties cannot agree on costs, the party seeking costs is to serve, and file their bill of costs and cost submissions of no more than five pages, double spaced, using 12 pt font, double spaced, and any relevant offers to settle, by May 1, 2026. The responding party is to file their serve and file their bill of costs and written submissions, of no more than five pages, using 12 pt font, double spaced, and any relevant offers to settle by May 15, 2026. I will permit reply submissions of not more than two pages, double spaced using 12 pt font, by May 25, 2026. These dates may need adjustment if the parties request to appear before me for any of the reasons set out herein.
L. Shaw J.
Released: March 30, 2026