“Eighth, with respect to his pension, RRSP and LIRA, Mr. Pierre has chosen a notional tax rate of 26.9% while Ms. Pierre has chosen one for him of 24.7%. In a report dated July 24, 2017, Guy Martel noted that the former would be Mr. Pierre’s notional tax rate at a retirement age of 65, while the later would be his rate at a retirement age of 60. In Van Delst v. Hronowsky, 2021 ONSC 2353, I noted at paragraph 35 that the proposition that the normal retirement age of a PSSA plan member may travel with the pension valuation and not necessarily with the determination of disposition costs is supported by Knight v. Knight, 2018 ONSC 3294, wherein Justice Nelson indicated at paragraph 55 that “notional disposition costs may be deducted from a spouse’s net family property if there is satisfactory evidence of a likely disposition date and it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them.” (Underlining is original). Like Ms. Van Delst in that case, Mr. Pierre testified that he absolutely intends to work until age 65, and he submits that his notional tax rate at retirement should be as of age 65. I found in Van Delst that the wife’s notional tax rate at age 65 was acceptable despite that FLV was calculated on a normal retirement age of 60. However, I distinguish that case on the basis that the rate had already been used in my April 2019 judgment for other of the wife’s post-retirement assets and not overturned by the Court of Appeal, notwithstanding the ordered recalculation. Logically, however, if Mr. Martel has calculated the disposition rates based on the value of all of Mr. Pierre’s projected income at ages 60 and 65, the rate should correlate to those values. The notional disposition rate for Mr. Pierre’s assets in the Comparative NFP will, therefore, be 24.7%.”
August 19, 2024 – The ABCs of RESPs
“Whether assets in an RESP are the property of the subscriber or are held in trust for a beneficiary has not been consistently answered in the caselaw: See Kira Domratchev, “Is an RESP a Trust? …And So What If It Is?” (May 2021) 40 Est. Tr. & Pensions J. 257; Charles Wagner & Mari Maimets, “Litigation and RESPs”, 20th Annual Estates and Trusts Summit, October 16, 2017.
Before briefly reviewing the case law, I will describe the features of an RESP:
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- The basic framework for an RESP is established under the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) (“ITA”).
- An RESP is a contract between an individual (“the subscriber”) and an organization (“the promoter”) designed to help parents, family, and friends to save towards a beneficiary’s post-secondary education: Canada Revenue Agency, Information Circular No. IC93-3R2, Registered Education Savings Plans, May 4, 2016 (“CRA Circular”), page 2; ITA, s. 146.1 (1).
- Under the contract, the subscriber names one or more beneficiaries and agrees to make contributions for them, and the promoter agrees to pay educational assistance payments to the beneficiaries. The subscriber’s contributions are not deductible from their income tax.
- Aside from helping a child finance their cost of post-secondary education, the benefits of an RESP are that: (1) taxes on income earned on contributions are deferred until the income is withdrawn, and (2) federal government grants are paid on contributions made to an RESP.
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- Various government grants and incentives are available. A basic Canada Education Savings Grant (“CESG”) of 20% on the first $2,500 of annual RESP contributions is paid into the RESP under the Canada Education Savings Act, S.C. 2004, c. 26(“CESA”).
- An RESP is a vehicle designed for individuals to accumulate income for post-secondary education.
- The only permissible payments out of an RESP are:
o Subject to the terms and conditions of the RESP, the promoter can return contributions to the subscriber or to the beneficiary at any time.
o Educational Assistance Payments (which does include a refund of contributions but does include the RESP’s accumulated investment earnings (earnings on the money saved in the RESP) and CESGs) can be paid to or for the beneficiary student to help finance the cost of post-secondary education if the student is enrolled in a post-secondary educational institution or other qualifying educational program or if the beneficiary student is at least 16 years old and is enrolled in a specified educational program.
o Accumulated income payments (“AIPs”), which are investment earnings that accumulate on contributions made to a RESP and on amounts paid under the CESA, can be paid to a subscriber if the beneficiary is 21 years old and is not pursuing post-secondary education and the plan has been in existence for at least ten years. AIPs must be included in the subscriber’s income for the year the payments are received. The payments are subject to a 20% additional tax on top of the regular tax rate payable on the subscriber’s income. The subscriber can reduce or eliminate this additional tax by contributing the AIPs to his or her RRSP or to a spousal RRSP up to a maximum of $50,000.00.
o Repayment of amounts under the CESA: See section 11 of the Canada Education Savings Regulation, S.O.R./2005-151.
o Payments to a designated educational institution and payments to a trust to accommodate transfer of property between RESPs.
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- Any amount received by a taxpayer in satisfaction of a subscriber’s interest under an RESP must be included in computing the taxpayer’s income except:
o Any amount received in satisfaction of a right to a refund of payments under the plan: ITA, ss. 146.1 (7.1)(b), 146.1 (7.2)(b)(ii).
o Any amount received by a taxpayer under a court order or agreement relating to a division of property between the taxpayer and the taxpayer’s spouse or common-law partner in settlement of rights arising out of, or on the breakdown of, their marriage or common-law partnership: ITA, ss. 146.1 (7.11)(b), 146.1 (7.2)(b)(iii).
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- The subscriber of a plan can change the named beneficiary under an RESP if the terms of the plan allow: CRA Circular, paras. 74-75.
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- If a subscriber dies, their estate may continue the RESP or name another individual as an alternate subscriber. The terms of the RESP and provincial law will dictate what happens to the RESP: CRA Circular, para. 8.”
August 16, 2024 – Mareva Injunctions: The Test
“The applicant relies upon the Mareva Order to enjoin the property in the hands of the other Aarabi Family and Affiliates, who are strangers to the family law proceeding and whose assets are not subject to preservation under ss. 12 and 40 of the FLA.
The test for a Mareva injunction is well settled, and most often cited in the case of Chitel et al. v. Rothbart et al., (1982) 1982 CanLII 1956 (ON CA), 39 O.R. (2d) 513. It is more stringent than the test for a preservation order under the FLA. The requirements that the applicant must establish are that:
a. she has a strong prima faciecase;
b. the respondents have assets in the jurisdiction;
c. there is a serious risk that the respondents will remove their property or dissipate assets before judgment.
See O2 Electronics Inc. v. Sualim, 2014 ONSC 5050, at para. 67 and Ghaeinizadeh v. Ku De Ta Capital Inc, 2010 ONSC 4169, [2010] O.J. No. 3217 (S.C.).
The applicant also must establish that she will suffer irreparable harm if the injunction is not granted and that the balance of convenience favours granting the injunction. See Lee, at para. 43. This is often tied into the assessment of risk of the removal or dissipation of assets before judgment.”
August 15, 2024 – Entitlement to Post-Separation Increases in Income
“It is true that a spouse is not automatically entitled to increases of spousal support when the other spouse’s post-separation income increases: Thompson v. Thompson, 2013 ONSC 5500 (CanLII), at para. 103. The same principle should apply to a one-time increase. Unlike the Child Support Guidelines, there is no express statutory authority for imputation of income: Mann v. Mann, 2009 CanLII 23874 (ON SC), at para 15. The Divorce Act, s. 15.2(4), does not refer to income but, rather, to “means.”
…
The logic that dictates a predictable stream of income as a measure of a payor spouse’s “means” would also suggest that a temporary increase should not be used to boost the support if a temporary decrease would not be grounds for lowering it. Moreover, in the case of post-separation income increases, the authors of the SSAG stated, in s. 14.3, that the principles of spousal support militate against increasing support, especially if the marriage was not long:
There are two possible formulaic extremes here. At one extreme, one could decide that any post-separation income increase of the payor spouse should not affect the amount of spousal support. After all, some would suggest, the recipient is entitled to a sharing of the marital standard of living, but no more. Certainly, this bright-line method would be predictable and administratively simple. At the other extreme, one could argue that the formulas should just continue to be applied to any income increase for the payor. This again would offer a predictable result, but one which the basic principles of spousal support would not justify in all cases. This approach is most compelling after a long traditional marriage.”
August 14, 2024 – Changing a Parenting Order
“In F.K. v. A.K. 2020 ONSC 3726 this court recently set out an extensive analysis of the relevant factors and considerations when a parent seeks to change a custody and/or access order.
a. The starting point is that the original order is presumed to be appropriate and in the best interests of the child.
b. In a variation proceeding, the threshold test is whether there has been a material change in circumstances since the previous order was made.
c. If there is no material change in circumstances, the inquiry goes no further.
d. If a material change in circumstances has been established, the court will embark upon a determination of the child’s best interests. This must be a broad and careful inquiry which takes into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs.
e. Even if there has been a change in circumstances, the court must still decide whether it is appropriate to change the existing order, and if so, in what manner.
f. The court should have all relevant information before it makes any changes. As a result, courts are very reluctant to impose temporary changes with respect to final orders. In most circumstances the existing order should continue until the court has confidence that all necessary information has been assembled and considered. The safest course is to fully ascertain the immediate and longer-term impact of any change on the child – before implementing the change. A poorly considered or misguided change may actually prejudice the child. And further correction or reversal of a premature variation could only compound the harm to the child.
g. In extreme or urgent circumstances, the court may have no alternative but to consider a temporary variation to provide some immediate protection or benefit for the child which cannot or should not be delayed.
h. But the onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. And they must clearly establish that the immediate benefit to the child is significant and necessary, and outweighs any foreseeable negative consequences or prejudice resulting from disruption of the child’s situation, relationships or routine.
i. Given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established.”
August 13, 2024 – Motions for an Advance
“The test the wife must meet to persuade the court to exercise its discretion to grant her leave to bring a motion for an advance of $100,000 or interim costs of $100,000 is a two-fold test:
i) Does she have an arguable case on the merits – a prima faciecase for the relief she intends to seek if leave is granted; and
ii) Can the court be assured, with or without terms, that allowing the wife to bring her motion for an advance/interim costs will not result in an abuse of process? Conceicao v. Abraham2021 ONSC 2330 at para 5; Rubato. v. Sandoval, 2018 ONCJ 85 (CanLII), at para. 42.
In Ludmer v. Ludmer, 2012 ONSC 4478 at paras 25 and 3 (“Ludmer”), the court articulated that someone cannot have an arguable case on the merits, (the first part of the test for leave), where he/she is bringing a motion for relief which had earlier been denied by the court if:
iii) there has been no change in circumstance since the first motion;
iv) the moving party does not address why initial motion judge’s decision should not be given deference; and
v) the necessary factual foundation to support the proposed motion does not exist.
I agree with Mesbur, J.’s reasoning in Ludmer v. Ludmer, that the party seeking leave to bring a motion where the relief has already been denied by the court, has a higher burden to demonstrate the factual foundation to support the relief sought on the motion. In para. 25 of Ludmer, Mesbur, J. stated:
“the question is whether intervening events have changed the legal landscape to sufficiently support the wife’s motions. In the particular circumstances of his case, where similar motions have already been denied, it seems to me the wife has a higher burden to show the necessary factual foundation to support her motions. She is not precluded from bringing the motions; she must meet the higher burden I have articulated.
Eskandari v. Rowshani-Zafaranloo, 2021 ONSC 6083 (CanLII) at 23-25
August 12, 2024 – The Farden Factors
“Subsection 2(1)(b) of the Divorce Act states that a “child of the marriage” means a child of two spouses or former spouses who, at the material time,
is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
In Licata v. Shure, 2022 ONCA 270, 2022 CarswellOnt 4209, at para. 33 (“Licata”), the Court of Appeal stated:
When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education. [Citations omitted.]
In Licata, the Court of Appeal also referenced the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden, 1993 CanLII 2570 (BC SC), 1993 CarswellBC 619, at para. 15:
The Farden factors are:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;
(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
(3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.”
August 9, 2024 – Evidence Required Even at Uncontested Trial
“Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
…
The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.”
August 8, 2024 – Exclusive Possession and Motion for Sale
“The existence of an interim Order for exclusive possession of the matrimonial home presents a triable issue which may weigh against its sale pending trial (Martin v. Martin, 1992 CanLII 7402 (ON CA), para. 26; Brar v. Brar, 2020 ONSC 5637, para. 67). As noted by McGee J. in Goldman v. Kudeyla, 2011 ONSC 2718, a court faced with a request for a pre-trial sale must consider the proceeding’s various moving parts (at para. 20):
Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course. One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.
A party’s entitlement to an order for exclusive possession is a factor to be considered by the court on a motion for a pre-trial sale, however, it is not determinative. As noted by Wright J. in Walters v. Walters, 1992 CanLII 8599 (ON SCDC) (at para. 15):
A claim for exclusive possession is a substantive property right. It is determined on the facts as they are shown to exist at the trial. Entitlement or non-entitlement to an order for exclusive possession at a time prior to trial is not determinative of the issue whether or not a sale should be ordered prior to trial. For example, the spouse moving for sale may have left the matrimonial home and taken the children to another community. The resisting spouse may be alone in the matrimonial home without any right to or need for exclusive possession before trial, but he or she may be claiming exclusive possession as an integral part of a claim for custody at trial.
In this case, the respondent’s request for a pre-trial sale of the matrimonial home is made pursuant to the Partition Act, which provides at ss. 2–3:
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
The test to be applied by the court in determining whether to direct the pre-trial sale of a matrimonial home was best summarized by McGee J. in Goldman, at paras. 17-19:
[17] A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
[18] To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
[19] There have been a number of cases in which the court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk 2004 CanLII 34595 Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
The impact of a sale on any dependent children residing in the matrimonial home is a consideration in determining whether a sale is appropriate. As is the case with other factors, however, it is not determinative. In Delongte v. Delongte, 2019 ONSC 6954, Shaw J., faced with an argument that the matrimonial home ought not to be sold because it would be disruptive to the children, noted the following at paras. 38-42:
[38] The applicant’s position is that the home should not be sold as it is the only home the children have known. The children have significant attachment to that house, it is close to their school and it provides them with a sense of stability. If that was a sufficient basis to resist the sale of a matrimonial home following separation, no matrimonial home would be sold in situations where a spouse wished to remain in the home with the children. In most cases, the children are attached to the home, it is close to their school and it provides a sense of stability. That is not, in and of itself, a sufficient basis to defeat a presumptive right to sell a jointly owned property, pursuant to the Partition and Sale Act.
[39] The applicant submits that selling the matrimonial home is extreme relief. I do not agree. An order for the sale of the matrimonial home is relief that is routinely sought in matrimonial litigation. It is not uncommon that parties wish to access the equity in the matrimonial home for a variety of reasons such as purchasing other property or paying debt.
[40] Based on a review of the jurisprudence as set out above, there is no basis for the applicant to successfully resist the sale of the matrimonial home. Although she alleges that the children have been having difficulty with the separation and have attended counselling, that is an all-too-common occurrence in high conflict situations. The children are young teenagers and there was no independent evidence led as to how the sale of the home might have a detrimental impact on their well-being, other than what can be typically expected when parties separate and then reformulate a new family unit after separation. Separation is a very dramatic and life-changing event for all involved. It means moving on from the familiar – often including the matrimonial home – to the new and unfamiliar.
[41] In most situations where parties separate, there is a transitional period of time when financial necessity dictates that the home is sold and the parties must move into their own respective homes. It is to be expected that the children will be dislocated from their home, which will be difficult – as it always is in these situations.
[42] Based on a review of the evidence, there is no child-focused reason not to sell the home.
Child-focused reasons to decline a request for sale and order exclusive possession include the need to provide security for child support payments (Ariyaratne v. Ariyaratne, 2012 ONSC 1487, para. 23; Duhnych v. Duhnych, 2004 CanLII 11777 (ON SC), para. 65).”
August 7, 2024 – No Right to Purchase or Right of First Refusal
“The court does not have the authority to grant a spouse the right to purchase the other’s interest in the matrimonial home or the right of first refusal: Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] 8 O.R. (3d) 41.
In Brienza, Perell J. summarized the law at paras. 37 and 38:
The court does not have the jurisdiction to compel one co-owner to sell to the other, although the co-owners may participate in the court-ordered sale of the property in the open market; Osborne v. Myette, [2004] O.J. No. 3383 (S.C.J.); Legg v. Draper-Legg, [2004] O.J. No. 606 (S.C.J.); Greenbanktree Power Corp. v. Coinamatic Canada Inc., supra.
The court does not have the jurisdiction under the Partition Act to grant a right of first refusal to either co-owner: Dibattista v. Menecola (1990), 1990 CanLII 6888 (ON CA), 75 O.R. (2d) 443 (C.A.). In Silva, supra, the court noted that where a sale is ordered, the respondent may bid in the sale. See also: Glick v. Carr, [1991] O.J. No. 1588 (Gen. Div.).
See also: Buttar v. Buttar, 2013 ONCA 517 (CanLII), at para. 64: “This court has jealously guarded the rights of joint owners to the best price for jointly-owned property”; Laurignano v. Laurignano, 2009 ONCA 241 (CanLII), at para. 3; Watson v. Watson, 2015 ONSC 2091 (CanLII), at paras. 34-37; McColl v. McColl, 1995 CanLII 7343 (ON SC), at para. 29; and Kokaliaris v. Palantzas, 2016 ONSC 198 (CanLII), at para. 44.”