2013 ONSC 2895, 2013 ONSC 2895

CITATION : Kelly Jane Denomme and Corey Wilson McArthur 2013 ONSC 2895 COURT FILE NO.: 09-43524 DATE: 2013-05-21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) KELLY JANE DENOMME ) ) ) Pamela L. Hebner, for the Applicant ) Applicant ) ) - and - ) ) ) COREY WILSON MCARTHUR ) ) ) Anna L.

Towlson, for the Defendant ) Respondent ) ) ) ) HEARD: January 24, 25, 26, 27, 28, February 1, 2, 3, 4, October 11, 12, 13, 14, 2011, January 31, and February 1, 2012 MATRIMONIAL RULING PARAYESKI, J. [ 1 ] This matrimonial action was tried together with a separate debt action in which the husband and wife are the defendants, and the wife’s father is the plaintiff. I shall provide separate rulings, i.e. one for each action. I presume that all parties can agree upon whatever arithmetical adjustments may be required to address the results of the rulings when considered together.

If they cannot do so, a further hearing before me may be arranged through the trial coordinator at Hamilton Family Court. [ 2 ] The husband and wife dated in high school and married on November 16 th , 2002. Together they have three children: Kaitlyn McArthur, who was born on April 8 th , 2005, and twins Payton McArthur and Emily McArthur, who were born on September 4 th , 2007. The parties separated on March 9 th , 2009. The wife and children reside in the matrimonial home. The husband resides with his new

partner in Guelph. [ 3 ] The parties agree on very little beyond the above-referenced, basic facts. They are consumed by grievances between them, and appear to lack insight into how their conflict is likely to affect their children. Both are immature. All of this is compounded by the influence of their respective families whose “support” reinforces the problems. There are multiple issues to be adjudicated upon in this action. I shall address these separately. Divorce [ 4 ] The parties have been separated for more than a year, and there appears to be no possibility of reconciliation.

Either party is at liberty to obtain a divorce by filing the usual, requisite documentation. Custody [ 5 ] The wife asks that she be granted sole custody of the children. The husband seeks joint custody. Of course, the parties disagree with respect to the care each of them provided to the children pre-separation. The wife says that she was the primary caregiver who was able to adjust her work

schedule to accommodate the children’s needs. She says that the father works shifts as a police officer and spent a great deal of time away from the home allegedly at a gym or out with friends. He says that he took some parental leave from work and was very much a hands-on father of the children. [ 6 ] The parties separated permanently after an incident on the morning of April 18 th , 2009. The husband came home from celebrating St. Patrick’s Day “completely intoxicated”, according to the wife. He admits to losing control and striking a door.

She says that he punched two doors putting holes in them and a nearby wall. She says that he threatened her. He rationalizes his behaviour as being in response to provocation by the wife. Most of this incident took place in the presence of the children. [ 7 ] After the separation, the father initially moved into this brother’s home and then went to live with his girlfriend. The children stayed with the wife in the matrimonial home.

Access was initially generous with an apparently appropriate and reasonable amount of communication going on between the parties. [ 8 ] The husband admits to lying to the wife about his having commenced to live with his girlfriend. He rationalizes this on the basis of his fear that the wife would deny him access if she learned the truth. It appears that the truth was revealed to the wife by the child Kaitlyn.

It also appears that Kaitlyn had been told by the husband not to disclose where he was living and where she was when with him during access. [ 9 ] Communication between the parties deteriorated significantly at around the time of the disclosure described above. The wife commenced the present litigation. She made a report to the Children’s Aid Society in respect of a bruise on Emily’s leg sustained while she was with the husband. He took a proactive approach to the complaint. It was quickly investigated and the file closed. The wife reacted strongly.

In a letter from the C.A.S., it is revealed that the wife did not want the father to have any access. This understandably created a suspicion in his mind, mostly about the wife’s intentions and her capacity to cause him problems. Communication deteriorated even further. The father then insisted that all communications between him and the mother be by way of e-mail so as to create a record of who said what. It is his submission that this reduces conflict and protects the children from exposure to adult issues.

The wife disagrees. [ 10 ] For his part, at about the same time, the father threatened in an e-mail to contact “the Canadian Border Services Agency” to prevent the children from traveling with the wife on a regularly scheduled Florida vacation. [ 11 ] Petty incidents continued and confounded the situation. A motion was heard by Justice Hambly on May 9 th , 2010 which resulted in an order such that the husband has access to the children roughly 50 percent of the time.

The endorsement does not appear to specifically address interim custody. [ 12 ] Following that order, the husband sent a number of e-mails to the wife imposing strict terms regarding access drop-offs and pick- ups and reiterating that all communication had to be through e-mail. The husband submits that the wife has selectively presented only some of his e-mails to make him appear unreasonable. At the same time, he does not deny having sent the ones to which the wife referred. [ 13 ] The wife seeks sole custody, whereas the husband seeks joint or shared custody.

It is trite to say that on the issue of custody (as well as access, of course, which I shall address separately), the sole issue before me is to determine that which is in the best interests of the children. Communication or the lack thereof, between the parties relative to the needs of the children, plays a large role in determining which type of custody is in the bests interests of the child or children involved. Joint custody works best when the parties can both communicate effectively and cooperatively. I agree with the observations of Pazaratz, J. in his decision in Misner v.

Misner , 2010 Carswell Ont. 2713 , wherein he notes that the Ontario Court of Appeal has been clear in “urging a cautious approach to joint custody in high conflict cases. In Kaplanis v. Kaplanis : The Court held that joint custody should not be ordered unless there is evidence that the parties are able to communicate effectively with one another, despite animosity or personal differences. Hoping that communication will improve after the litigation ends does not provide a sufficient basis for the making of an order for joint custody.

There must be some evidence before the court that, despite their differences, the parents are currently able to work cooperatively for the sake of the children.”

[ 14 ] At present, the parties do not communicate well. To be sure, there have been times when there have been exceptions to this general course of conduct, such as when the parties spoke by telephone to address one of the children having been hurt by a fall from some monkey bars in a park. I reject the husband’s submission that there is good communication on all child issues save such things as holiday schedules. This is parsing the issue too finely. [ 15 ] Both parties point to each other and say that the other is the source of any communication problem. Ultimately it does not matter who is to blame.

The fact is that there is a problem with communication, which I do not see changing soon given the maturity level of the parties involved. In addition, there is, and will likely remain, relatively high conflict between the parties on multiple issues. I do not suggest that joint custody should only be considered where there is perfect communication and no level of animosity, but I am of the view that it is inappropriate here and now. The wife shall have custody of the children of the marriage. Access [ 16 ] The evidence at trial makes it quite clear that the husband was not a good husband.

Regardless of how he rationalizes his conduct, he was unfaithful and drank too much. In saying this, I reject his evidence that his affair with the witness Ms. Stark did not extend beyond “sexting” with her. This was the witness who he counseled, by way of a text message, to dishonor her sub poena . Typically, he said that he had been “set up” to do so by the witness and the wife. This discreditable conduct on the part of the husband has very significantly undermined his credibility throughout.

As a police officer, he undoubtedly knows better than the average citizen does about court process, including sub poenas. He should consider himself fortunate to have avoided being cited for contempt. [ 17 ] However, all of the trial evidence also indicates that the husband is an excellent father to his daughters. It is in their best interests to have significant and meaningful contact with him. [ 18 ] Access has been happening in accordance with the order of Hambly, J. since May of 2010.

Both the parties have difficulty with the six hour access visits created under that order. [ 19 ] The Office of the Ontario Children’s Lawyer investigated, and its clinical investigator testified at trial. Ironically, both parties submit that they agree with the recommendations of the investigator, but come to significantly different proposals. They accuse each other of wanting deviation regarding the investigator’s access recommendations. [ 20 ] It appears to me that the wife would be content with the precise terms of access (including holiday time) recommended by the O.C.L.

The husband interprets the O.L.C. report to recommend continuation of the status quo, minus the six hour visits in the order of Hambly, J. I cannot accept the husband’s submission that the O.C.L. was of a view that the status quo was ideal save for the six hour visits. The investigator plainly stated on page 22 of her report that: “Although it is important for the children to have maximum time with both parents and to not be separated from either parent for extended periods of time, the number of exchanges and the inconsistency of transfer days and times in the interim parenting

schedule are disruptive and unsettling for the children. The current

schedule is confusing for everyone and does not provide a stable and secure plan for the young children.” [ 21 ] Regardless, the O.C.L. recommendations say what they say, and I see no valid reason to order access other than as suggested by the investigator. I appreciate that this may have the effect of reducing the father’s access time, but the reduction appears to occur during times when his work

schedule would oblige him to have others looking after the children in any event. While that is not necessarily problematic given the ages of the children, the primary purpose of access is meaningful contact between the access parent and the children and not merely time spent away from the other parent while in the care of third parties. [ 22 ] Transportation relating to access is to be shared equally. Placing all of the transportation obligations on the husband simply because he has chosen to live in Guelph is unfair, especially given his work

schedule and the relatively flexible

schedule of the wife. Child Support [ 23 ] As I understand the submissions of the wife in this regard, she is asking for child support at the Guideline level based upon the husband’s income adjusted retroactively to June 1 st , 2010. The husband suggests $14.00 per month commencing October 1 st , 2012. This amount, according to his submissions, is the Guideline amount offset by a shared parenting

schedule and an annual income of $80,000.00 being imputed to the wife. [ 24 ] For reasons set out below under the heading “Spousal Support”, I am not prepared to impute to the wife beyond the amounts reflected by her on her Canada Revenue Agency notices of assessment. As for the notion of offset, I am not willing to do the parties’ arithmetic for them. If the access time I have ordered herein in accordance with the recommendations of the O.C.L. comes to a percentage of time that would warrant offset under the Guidelines, then obviously it should happen.

Otherwise, child support is payable by the husband to the wife for so long as the children qualify, at Guideline levels, based upon his Canada Revenue Agency notices of assessment. This is payable on a go forward basis. I do not order retroactive adjustment because of the status quo shared parenting arrangement created by the order of Hambly, J. [ 25 ] There shall be mutual disclosure of financial information on an annual basis.

Spousal Support [ 26 ] The wife asks for spousal support at the approximate mid-point of the Divorcemate generated range based upon income tax return figures. The husband asserts that the wife has underreported her income to the C.R.A. and/or is capable of working more than she does and is therefore capable of earning significantly more than that to which she admits. [ 27 ] The wife acknowledges that the husband deposited his paycheque into their joint account until November of 2009.

She asks for spousal support from January 1 st , 2010 going forward. [ 28 ] The husband works as a police officer with the Guelph Police Services. His income is reflected on his T4 forms. In 2011 he earned $81,868.27. [ 29 ] The wife is a self-employed C.P.R. instructor. The evidence is that she did her own teaching until the third trimester of her pregnancy with the twins in June of 2007. At that point, she pulled back to a largely administrative role and subcontracted the teaching elements out. In 2008 she returned to some actual teaching.

Until the end of 2009, she had a contract to provide C.P.R. classes for the GoodLife Fitness chain. That contract was terminated effective December 19 th , 2009. Thereafter, the wife purchased some territorial rights to teach under the auspices of the Canadian Association of Fitness Professionals. She has a few additional clients. She does her own teaching now, and works when she does not have the children in her care. Her 2010 income tax records show a gross income of $19,519.00 and a net income of $8,685.78.. In 2011, her gross income was $9,626.00 with a net income of $4,149.91.

In 2007 her net income was reported at $10,456.00 and 2008 it was $17,463.00. In 2009 it was $24,345.00. While of little practical significance, I note that the figures for 2009 are different within the wife’s written submissions (both main and reply). [ 30 ] The wife admits that when she was working with GoodLife there were some cash payments received from individual registrants which she did not report as income. It is her evidence that she no longer receives cash payments of any kind. [ 31 ] In his submissions, the husband is dismissive of most of the above.

He suggests the following: 1) that the wife has significantly unreported her income for years; 2) that she has exaggerated her business expenses in order to reduce her net income; 3) that she is, and has been, deliberately underemployed and is making inadequate efforts to develop and expand her business. [ 32 ] He suggests that the court should impute an annual income to the wife of $80,000.00 going forward, and $120,000.00 for 2009. [ 33 ] The husband’s cynicism and speculation does not amount to the kind of evidence upon which it would be reasonable or prudent to impute income at the levels he suggests or, indeed, otherwise. [ 34 ] Without that imputation no retroactive adjustment for either spousal or child support is appropriate. [ 35 ] The husband shall pay to the wife spousal support in the amount of $500 per month commencing August 1 st , 2012, with annual increases in accordance with section 34(5) and (6) of the Family Law Act until September 1 st , 2014.

At that time, the issue of spousal support shall be reviewed. By that point, the younger children will have been in full time attendance at school for a complete year. That should afford the wife an opportunity to develop her business and to work toward fulfilling her obligation to become self-supporting. In making this observation, I, of course, do not presume to bind the judge hearing the review.

Section 7 Expenses [ 36 ] Historically, the husband has contributed to various extraordinary expenses including some gymnastic and swimming costs, blood storage, and soccer for Kaityln. [ 37 ] The wife seeks reimbursement for some past nursery school costs relative to the twins and $300.00 per month going forward. [ 38 ] I have difficulty with either request. Regarding the nursery school attendance, it appears that the twins went for some 10 months, at a monthly cost of $320.00.

The husband testified that he had informed the wife that he could not afford this kind of expense, but would (and did) pay $80.00 for each of the 10 months. Obviously one half of the monthly payment would have been $160.00, leaving an alleged shortfall of $80.00 per month. $80.00 per month times 10 months equals $800.00. It is that amount which the wife seeks. [ 39 ] It is not clear to me on the evidence that the nursery school attendance was necessary to facilitate the wife’s self-employment. She claims to arrange her work

schedule almost entirely around her childcare commitments. Accordingly, I do not find the expense to be extraordinary as defined by statute.

I also note the logical inconsistency between the husband’s assertion that the wife is not making reasonable efforts to earn an income and his implied position on the point that she does not need daycare relative to the twins who are not yet in full time school. [ 40 ] There shall be no adjustment in either direction relative to the nursery school expenses. [ 41 ] The wife’s going forward request relating to extraordinary expenses is that the husband should pay her $300.00 per month (i.e. $100.00 per child) as a lump sum. [ 42 ] She proposes that if annual receipts show a lesser amount was spent by her then the husband could request a reduction (presumably going forward).

If a greater amount is spent by her, she would absorb the extra expense. [ 43 ] Instead of providing projected costs, she simply submits that she “would like” to have the children take music lessons and expand their sports activities. Her approach, she also submits, would reduce communication between the parties, implying, I take it, that

reduced communication would reduce conflict. [ 44 ] As I see it, there are two fundamental flaws in the wife’s proposal on this topic. Firstly, it cuts out the father’s input entirely and puts her utterly in charge of selecting the children’s nonschool activities. The unilateral selection of activities often has an impact upon access with attendant conflict. This should be avoided. Secondly, the suggested amount is entirely without an evidentiary basis. This second problem is not fully, or even adequately, addressed by the wife’s proposal on adjustment or payment by her. [ 45 ] Unfortunately, the husband’s submissions do not include a counter-proposal regarding future

section 7 expenses. [ 46 ] Under these unusual circumstances, I order that the husband shall pay to the wife $150.00 per month commencing June 1 st , 2013 toward

section 7 extraordinary expenses, with that amount collectible by the Family Responsibility Office. On the 1 st day of November of each year thereafter, the wife shall present to the husband receipts for the expenses paid and there shall be adjustment between the parties based upon the shared expenses proportionate to their relative incomes. The wife shall consult with the husband and seek his consent to the incurring of

section 7 expenses, with that consent not to be withheld unreasonably. Extended Health Care and Dental Benefits [ 47 ] There does not appear to be any opposition by the husband to his being obligated to maintain extended health care and dental benefits for the children through his place of employment for so long as child support is payable. He makes no specific submissions in this regard, or, indeed, with regard to coverage for the wife during the time that spousal support is payable.

In light of his submissions, I order that the children and wife be provided with these coverages, provided that the relevant insurer permits the same. Life Insurance [ 48 ] The wife asks that the husband be required to retain her as an irrevocable beneficiary of life insurance through his employment and on a Manulife policy described in his financial statement of October 8 th , 2011. She asks for the usual order regarding the annual providing of proof of the designation and premium payments, presumably for so long as child and/or spousal support is payable. The husband does not appear to oppose this. So ordered.

Travel [ 49 ] There is evidence of the husband having threatened to contact Border Services to impede the wife’s taking the children on what has become a biannual holiday in Florida. This should be avoided. Similarly, the wife should not unduly interfere with any out-of- country holiday the husband proposes to take with the children. He makes no specific submissions relative to any future travel. Accordingly, I am prepared to order that this issue be addressed in the terms proposed in the wife’s written submissions at paragraph 193(

i) and (ii). Disposition of the Matrimonial Home [ 50 ] The wife wishes to purchase the husband’s interest in the matrimonial home. She and the children have lived there since the separation. Her parents live nearby. The children are well established there. The purchase appears to make sense. The husband does not disagree. Where the parties cannot agree, however, is on the issue of the appropriate purchase price. [ 51 ] The wife’s calculation of the correct price appears to be as follows.

I have corrected what I believe to be a minor arithmetical error: value $ 413,500.00 less the mortgage as of the date of separation - $ 132,534.00 $ 280,966.00 divided by 2 equals $ 140,483.00 [ 52 ] The husband’s calculations are as follows: value $ 433,975.00 less the mortgage as of the date of trial $ 110,985.03 $ 322,989.97

divided by 2 equals $ 161,494.98 [ 53 ] The difference between the two calculations is $21,011.98. [ 54 ] The husband’s assertion that the value of the home as at trial is $ 433,975.00 is not substantiated by an appraisal, or at least one referred to in his submissions. It may be that he has assumed that the wife’s figure was reduced by notional costs of disposition. It does not appear to have been so reduced. She agrees that no such reduction is appropriate. I am prepared to begin with the wife’s value. [ 55 ] The wife’s figure for the mortgage is accurate as of the date of separation.

The husband argues that the correct mortgage deduction figure is that as of the date of trial, which he places at $110,958.03. I disagree because using that figure would in effect give him credit for mortgage payments which he did not make. His evidence is that he stopped contributing to the mortgage as of October, 2009 immediately following which he stopped depositing his paycheque into the parties’ joint bank account. As of that date, the wife assumed all house carrying costs.

In his submissions, the husband asserts that as of the end of October 30 th , 2009, the mortgage stood at $124,907.00. [ 56 ] The wife takes the position that the husband did not contribute to the mortgage post-separation.

This does not accord with the credible evidence that he continued to deposit his entire paycheque into their joint account up until the end of 2009 and that the wife used money from that account to pay the family’s expenses. [ 57 ] Accordingly, I am of the view that the correct calculation is as follows: value of the home $ 413,500.00 less the mortgage at the end of October, 2009 $ 124,907.00 equals $ 288,593.00 divided by 2 equals $ 144,296.50 [ 58 ] The wife shall be at liberty to purchase the husband’s interests in the matrimonial home for $144,296.50 within 90 days of the release of this decision. [ 59 ] I am not prepared to make this payment subject to any debt between Paul Denomme and the husband.

Paul Denomme is not a party to the present action. How the parties to this action arrange their mutual rights and obligations as found in this action is up to them. [ 60 ] If the wife cannot, or will not, purchase the home on the terms described above, it is to be listed for sale and sold with the full cooperation of both parties. The net proceeds are to be divided equally between them.

Contents of the Matrimonial Home [ 61 ] Although the husband takes issue with the wife’s evidence that the household contents were divided more or less equally, he does not state which items he believes he is still entitled to receive. His bald submission that “he never gave up a claim for equal division of the contents” is of no assistance to the court whatsoever. There shall be no further division of the contents of the matrimonial home. Florida Timeshare [ 62 ] The parties jointly own a timeshare in Florida. They appear to agree that it should be sold and the proceeds divided equally as between them.

The wife has paid the monthly carrying cost of $81.00 U.S. since November of 2009 when the parties stopped conducting their finances together. [ 63 ] Either party may make arrangements to sell this property, with which the other party shall fully cooperate. The husband shall reimburse the wife for one half of the carrying costs from November, 2009 to the time of sale. I see no reason or justification to grant the wife’s request that these carrying costs be enforced by the Family Responsibility Office or that I preclude the husband from declaring these expenses from a tax perspective as he sees fit.

The result of the latter is between him and C.R.A., and appears to me to have nothing to do with the wife. Collateral Issues Regarding the Children [ 64 ] Based upon my review of the parties’ submissions, including, of course, the reply submissions of the wife, there appears to be a number of collateral issues concerning the children with regard to which there is either tacit consent or no opposition. I believe it prudent to spell them out there so that they may be incorporated into any resulting order.

Such terms are rarely put into similar orders, but given the poor communication between the parties, they should be specifiied. I grant the following orders:

a) those sought at paragraphs 193(f), (g), (h), (i), (j), (

k) and (s), of the applicant’s main submissions.

Net Family Property Equalization [65] The positions of the parties on this issue may be summarized as follows: Wife: The husband owes her $53,620.11 to equalize the net family property if there is no transfer of part of his pension to her, or$29,428.74 if such transfer takes place. Husband: The wife owes him $3,8051.50 to achieve equalization of net family property. [66] I do not intend to deal with this issue by means of analyzing the conflicting net family property statements on a line by line basis.

Instead, I shall address what I see as the more significant issues raised by the submissions of counsel. [67] Regarding the wife’s Toyota Sienna car loan: the wife used the outstanding balance of this loan as of the date of separation in hernet family property statement. The husband says that it was paid down using jointly owned money, such that by the time the parties’finances were made separate in November of 2009 the balance was less by approximately $12,000.00.

He submits that the lesser balanceshould have been used. [68] I agree with the wife’s submission that the legislation (section 4(1) of the Family Law Act) calls for debts to be listed as of thedate of separation. In the absence of case law which suggests that this statutory provision can or ought to be ignored, I am not preparedto deviate from it. [69] Regarding the date of marriage assets claimed by the wife, the husband takes the position that the wife has improperly inflatedthe relevant figures or is misstating the truth.

His complaints appear to focus on bank balances and household items that the wife says she owned as of the date of marriage, which was November 16th, 2002. [70] The husband’s evidence was absolutely clear that he had no savings on the date of marriage. That is inconsistent with his claimthat somehow he should be given credit for one half of the monies in the wife’s bank accounts at the time of marriage. I accept thewife’s evidence that the accounts were hers solely as of the date of marriage.

Bank records generated retroactively following the timewhen the accounts had been joint with the husband do not change my view.

I fail to understand the husband’s submission that hisallegations that the money borrowed from the wife’s father being used (according to the husband), to purchase household items shouldsomehow result in the wife not being given credit for date of marriage bank balances in her name only. [71] I similarly reject the husband’s submission that as at least some of the household items were purchased on credit pre-marriageand payment for the same was not due until after the marriage, this should result in the wife not being credited for them.

It seems to methat having incurred the liability for the payments pre-marriage, she ought to be given credit for the assets attaching to those payments. [72] The husband’s skepticism regarding the wife’s pre-marriage investments is not evidence. It certainly does not counter-balancethe evidence of both the wife and her father who testified with respect to those assets and their value.

Obviously, a better paper trailwould have bolstered that evidence but the absence of that paper trail does not mean that the evidence is valueless. [73] I admit to not understanding practical implications of the husband’s convoluted submissions regarding monies coming out of theparties’ joint line of credit post-marriage for which he says the wife does not account. The husband delegated full control over finance tothe wife before and during the marriage, and to some degree post-separation.

His demands for clarification, at this late date, were notcoupled with any clear indication of how any non-accounting should be dealt with by me, and are little more than obfuscation. [74] The husband’s complaints that the wife has not provided copies of bank statements on all joint accounts are meaningless.

As ajoint account holder, he could have produced the same records, and failed to do so. [75] The husband’s suggestions in his net family property statement that the wife’s debt to her father should be reduced “to 5 percentto reflect established legal principles re: minimal expectation of payment enforcement against a child in these circumstances” does notaccord with the fact that the father has sued both of the parties and has obtained a judgment against the wife. It also contradicts herevidence that she intends to pay her father. The evidence before me does not warrant the reduction that the husband proposes.

These arethe reasons why I choose not to exercise my discretion to make such a reduction in accordance with the cases referred to me by thehusband’s counsel, i.e. Poole v. Poole, (ON SC), [2001] OJ No. 2154, Cade v. Rotstein, [2002] OJ No. 4460, andKlimm v. Klimm, 2010 ONSC 1479. [76] Regarding the husband’s pension, it appears to be his position that its value as of the date of separation with retirement at age 60should be treated “as an asset to be plugged into the net family property statements for equalization purposes”. That value according tohis net family property statement is $46,530.00.

While this is a practical approach, it appears to disregard the retroactive nature ofsection 10.1(8) of the Family Law Act. It mandates that the law relating to pension division that came into effect after this action wasstarted applies. [77] The husband has not obtained an imputed value of his pension for family law purposes, as the new law requires. This waspointed out in the wife’s written submissions. The husband’s response was to simply state his position as quoted above.

Moreover, and Ithink this is of some significance, he does not in any way address the wife’s proposals for how the pension should be addressed at thispoint under the new scheme. I interpret this to mean that while he would prefer his approach, he sees nothing fundamentally wrong withthe wife’s alternate proposals or the expressed rationale behind them. [78] I think that the fairest and most prudent approach is to deal with the issue of the husband’s pension separate from that of the netfamily property equalization.

This is especially true given the practical reality of the parties’ present financial situation. [79] As set out above, the wife’s position is that the husband owes her $29,428.74 to achieve equalization without consideration of thepension. I do not have the husband’s figure taking this approach. While I have difficulty as set out above with most of the husband’sargument regarding equalization, I do see some merit, especially as regards his appearing to have contributed to paying down the car

loan. The husband shall pay to the wife an equalization of $20,000.00, not including any pension division. As for the husband’s pension, it shall be dealt with in accordance with the terms set out in subparagraph 193(ee) of the wife’s main submissions. [ 80 ] If the parties are unable to agree upon costs of the matrimonial trial, they may make brief written submission to me. Each set of submissions, if made, are to be no more than three typewritten pages in length, not including a costs outline. The only other attachments, if any, are to be offers to settle.

The applicant’s submissions are due on or before July 15 th , 2013. The respondent shall have a further 30 days to reply. The submissions are to be sent to my attention at the John Sopinka Court House in Hamilton. ___________________________ PARAYESKI, J. Released: May 21, 2013 CITATION : Kelly Jane Denomme and Corey Wilson McArthur 2013 ONSC 2895 COURT FILE NO.: 09-43524 DATE: 2013-05-21

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KELLY JANE DENOMME Applicant - and – COREY WILSON MCARTHUR Respondent RULING PARYESKI, J. MDP:mw Released: May 21, 2013