2017 ONSC 3043, 2017 ONSC 3043

CITATION : Alalouf v. Sumar, 2017 ONSC 3043 COURT FILE NO.: 3679/14 DATE: 2017-05-26 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) Penny Alalouf ) ) ) Self-Represented Applicant ) Applicant ) ) - and - ) ) ) Anwar Sumar ) ) ) Self-Represented Respondent ) Respondent ) ) ) ) HEARD: January 16, 17, 18, 19, 20, 23, 24, 25, 2017 and May 9, 2017 JUDGMENT THE HONOURABLE MADAM JUSTICE L. MADSEN INTRODUCTION AND OVERVIEW [ 1 ] In this case the parties, the Applicant, Penny Alalouf [“Ms. Alalouf”] and the Respondent, Anwar Sumar [“Mr.

Sumar”] settled parenting issues, but were unable to resolve financial aspects of their separation. The Court was asked to determine issues related to equalization and post-separation adjustments, the sale or transfer of the family cottage, ongoing child and spousal support, and retroactive child and spousal support. [ 2 ] Unfortunately this case was marked by two issues which plague the effective resolution of many family law cases: the failure to make full, frank, and timely disclosure; and a failure to comply with temporary Court Orders.

This case was also marked by a lack of candor on the part of the Respondent on numerous issues. All of these factors necessitated a trial where one should not have been required.

POSITIONS OF THE PARTIES [ 3 ] Ms. Alalouf sought an equalization payment in the amount of $49,548; sale of the parties’ cottage with a specific allocation of the proceeds of sale; arrears of child and spousal support, as well as unpaid costs, in the combined amount of $66,905; ongoing child support for two children in the amount of $2,525 per month and ongoing spousal support in the amount of $3,328 per month, based on an income imputed to the Respondent in the amount of $195,000 per year; and proportionate sharing of special and extraordinary expenses. Ms. Alalouf also sought an Order that Mr.

Sumar name the children as beneficiaries of any benefits package through employment and an Order that he maintain life insurance to secure support, having a face value of two times his gross salary. [ 4 ] Mr.

Sumar sought an equalization payment in the amount of $69,164, in addition to post-separation adjustments on account of interest on “marital debt” in the amount of $38,700; an Order transferring the Applicant’s interest in the jointly owned cottage to him; repayment of child and spousal support overpayments in the amount of $126,003; an Order terminating spousal support; and an Order imputing an income of $45,000 to Ms. Alalouf.

He further sought an Order setting aside the Temporary Order of Justice Lafrenière dated October 19, 2015 on the basis of undue hardship and the impact of paying “marital debt.” WITNESSES AND CREDIBILITY Ms. Alalouf’s Case [ 5 ] Ms. Alalouf called only herself as a witness. I found her testimony to be clear and straightforward. She testified as to the facts from her perspective in relation to the issues in the case, in a direct and believable manner. Her testimony was not weakened in any material way by the Respondent’s cross examination of her. She was consistent throughout the trial.

As is explained further below, where the testimony of Ms. Alalouf and Mr. Sumar differs, I find the testimony of Ms. Alalouf more credible. Mr. Sumar’s Case [ 6 ] Mr. Sumar testified in his case, and called three bank representatives as witnesses. [ 7 ] Mr. Sumar was polite and soft-spoken in his testimony. He answered Ms. Alalouf’s extensive questions in cross examination patiently. However, I have concerns about his credibility for a number of reasons. It appears that he has misstated certain facts to the Court, as well as to Ms. Alalouf.

A number of examples are set out below. [ 8 ] As part of his disclosure to Ms. Alalouf, Mr. Sumar produced a statement dated March 8, 2010 for Scotiabank Line of Credit (account # 905-922), showing a balance of $49,673,99. A second statement was later produced for the same account as at March 10, 2012 , in the exact same amount. The documents are identical except for the date in the top right hand corner, and a different notation regarding interest rate. In his testimony Mr. Sumar acknowledged that this account did not exist in 2010 at the date of separation and that the 2012 statement was the correct statement.

Offered an opportunity to provide an explanation for the existence of two virtually identical statements at different dates, he was unable to do so. He initially suggested it was a photocopying error at his previous lawyer’s office but when challenged as to how this could be possible, he stated that he did not know. On its face this could not be a photocopying error and it is difficult not to conclude that the document purported to be from 2010 was altered. Mr. Sumar acknowledged that he has a digital background although he pointed out that so does Ms. Alalouf. He agreed however that it was he, not Ms.

Alalouf who produced the statement. [ 9 ] Mr. Sumar testified under oath that the Scotiabank Line of Credit referred to above in paragraph 8 was in effect one and the same as a Line of Credit in Mr. Sumar’s name which existed at the date of separation in 2010, namely account #0117711. A certified bank statement was produced during the trial showing an amount owing on that line of credit at separation of $52,511. This was a secured line of credit. Mr.

Sumar explained several times during the trial that when the matrimonial home was sold, the unpaid balance was transferred onto the unsecured line of credit referred to in paragraph 8, rather than being paid off. He did not produce any documents which confirmed this transaction despite requests by Ms. Alalouf over the course of the litigation that he do so. [ 10 ] Subsequent to the Trial, the Court determined that the Statement of Adjustments was essential to arriving at the correct determination with respect to property. The parties were directed, by Endorsement, to produce same. Ms.

Alalouf produced the document, which would have been available to both parties through their real estate lawyer. Mr. Sumar did not object to its authenticity. The Statement of Adjustments belies Mr. Sumar’s repeated testimony regarding the lines of credit, showing that when the matrimonial home was sold, the secured line of credit was paid from the proceeds of sale before allocation of the net proceeds between the parties. Specifically, the lawyer on the sale paid $55,004.26 owing on that line of credit. The parties were offered an opportunity to provide oral submissions about this issue on May 9, 2017. Mr.

Sumar submitted that the secured line of credit was paid off when the house was sold and a new line of credit was opened, with a zero balance. This submission contradicted Mr. Sumar’s testimony and affects my assessment of his credibility. This issue is also relevant to the determination of post-separation adjustments set out below. [ 11 ] Mr. Sumar swore a financial statement on February 7, 2015 which was not accurate. On that financial statement, he stated that he was self-employed with Grey Matter Associates, a business enterprise in his name.

However, he had signed a contract with TC Transcontinental on November 11, 2014, almost three months prior, for a position as General Manager for “Targeo”, which was to be effective December 1, 2014 with “all other working conditions to take effect January 2, 2015.” His salary was to be $190,000 plus a $5,000 car allowance, for a total of $195,000 per year. Mr. Sumar had been under a different contract with TC Media from February to December 31, 2014 as an “independent contractor”. Mr.

Sumar suggested that when he swore the financial statement on February 7, 2015 he was still “in transition” from one job to the other. However, it was clear from the documentation that by January 2, 2015 he was under the new contract whereby he was an employee. [ 12 ] Mr. Sumar misstated his income in his updated financial statement sworn January 7, 2017, just before the trial commenced. In that document he swore that his income for 2016 was $75,926.

This contradicts his own income chart produced for the proceedings which shows an income for 2016 of $92,726 and his final paystub in 2016 dated March 10, 2016 shows a total gross income of $106,734.91.

[ 13 ] Mr. Sumar posted inaccurate professional information about himself on-line. Mr. Sumar was challenged about his Linked In profile which he acknowledged continued to show him as General Manager of Targeo, although that position ended February 26, 2016. Similarly his profile indicated that he left Dell in November 2010 when in fact the position was terminated in 2009. He acknowledged that the dates on his profile were not accurate and explained that this is because Linked In is “a social network not a CV.” [ 14 ] When Mr. Sumar was terminated from his position at Targeo in February of 2016, he mislead Ms.

Alalouf about his severance entitlement. He acknowledges that he told Ms. Alalouf that he received a two-week severance package when in fact he received a twenty-week severance package. [ 15 ] Mr. Sumar was inconsistent about how he purchased computers for the parties’ children after separation. He told Ms. Alalouf by text that he purchased them with the rent from the cottage. However, he indicated in sworn materials to Justice Mazza, on a motion, that the computers were purchased by his brother and that the funds were a loan. [ 16 ] Mr. Sumar produced income tax returns in the materials for trial.

They show incomes of: ($15,773) in 2012; ($18,363.97) in 2013; and $44,203.03 in 2014. These figures bear no apparent relationship with his Notices of Assessment which show incomes of $32,669 in 2012; $105,264 in 2013; and $110,703 in 2014. Mr. Sumar indicated that he submitted the tax returns he produced to the Court to the CRA, and was assessed and then re-assessed. He indicated that the Notice of Assessments he produced for trial resulted from reassessment by the CRA. None of those documents are titled “Notice of Reassessment”.

It is unclear whether the tax returns he produced in this proceeding were ever submitted to the CRA, although Mr. Sumar stated that they were. [ 17 ] Mr. Sumar did not produce his 2015 income tax return during the trial despite being requested to do so by the Court. His 2015 Notice of Assessment, which was produced, raises questions. That document shows Mr. Sumar’s income from 2015 to have been $196,678 and refers to him having withdrawn an amount from his RRSP “under the Lifelong Learning Plan”. This contradicts Mr.

Sumar’s Financial Statement sworn February 7, 2015 in which no RRSP accounts were shown and his oral testimony that he no longer had an RRSP account at that time. [ 18 ] It appears that on a range of issues Mr. Sumar has not been forthright with Ms. Alalouf, or with the Court. [ 19 ] In light of the issue with respect to the Scotiabank statement discussed in paragraph 8 above, Ms. Alalouf raised concerns regarding the authenticity of certain other bank documents that Mr. Sumar sought to have entered as Exhibits. Mr. Sumar called Teresa Lennox of TD Canada Trust; Vera Maglov, also of TD Canada Trust; and Mr.

Brendan Bergie of CIBC. Mr. Sumar also obtained a certified copy of a bank statement he sought to have admitted. The Court had no difficulty with the credibility of any of these witnesses. In fairness, there was no suggestion by Ms. Alalouf that the documents brought by these witnesses differed from the copies that Mr. Sumar had sought to have admitted. TEMPORARY SUPPORT AND DISLOSURE ORDERS [ 20 ] Ms. Alalouf complained that certain disclosure sought by her was never provided and that other disclosure was provided late. For example she requested but never received a copy of Mr.

Sumar’s Dell Severance letter; documents in relation to the Scotiabank “Beansaver” account; documents showing when the Scotiabank unsecured line of credit discussed in paragraph 8 was opened; a copy of Mr. Sumar’s contract with Sears Canada; and a copy of his passport (to show where he had travelled since separation, relevant, she said, to a lifestyle argument). She complained that certain required disclosure was received only on January 10, 2017, days before the commencement of trial, as a bundle of documents placed in her car, including a copy of Mr. Sumar’s Audi lease and his

summary of the cottage expenses. [ 21 ] Disclosure was ordered at numerous points in the litigation process: on the adjournment of a Case Conference on April 23, 2015 with disclosure to be produced by May 15, 3015; at the Case Conference held May 20, 2015, on consent; on November 18, 2015, on consent; on June 16, 2016, with all disclosure to be produced by July 29, 2016; and on August 18, 2016 with all disclosure to be exchanged by October 14, 2016. As noted, Mr. Sumar delivered some of the outstanding disclosure on January 10, 2017. However, relevant disclosure from Mr.

Sumar remained outstanding at trial. [ 22 ] Three temporary support Orders were made in this matter. On October 19, 2015, Justice Lafrenière ordered Mr. Sumar to pay temporary child support in the amount of $3,259 per month and temporary spousal support in the amount of $3,125 per month, retroactive to January 1, 2015. At that time she found Mr. Sumar’s disclosure to that date to have been inadequate and confusing. [ 23 ] Mr. Sumar made payments in 2015 but not in compliance with the Order. Payments were made in December 2015 and February 2016 (for January 2016), and then ceased, notwithstanding that Mr.

Sumar was earning $195,000 to the end of February 2016 and then received a twenty-week severance package effectively extending his income until July 2016. On July 7, 2016 Justice Mazza temporarily suspended support, ordering the parties back to Court three months hence with an update on Mr. Sumar’s employment status. On December 16, 2016 Justice Mazza ordered that Mr. Sumar pay support based on an imputed income of $70,000 effective December 1, 2016. As of the commencement of the trial, no payments had been made under that temporary Order. [ 24 ] At the commencement of trial, a costs award made against Mr.

Sumar by Justice Lafrenière on November 19, 2015 in the amount of $9,175.65 had also not been complied with and was being enforced by the Family Responsibility Office (FRO). [ 25 ] Mr. Sumar failed to attend two case conferences, one scheduled before Justice Brown on January 23, 2015 and one scheduled before Justice Mazza on April 23, 2015. Mr. Sumar explained that he relied on his lawyer as to when he should be in Court. [ 26 ] I find based on this pattern that Mr.

Sumar has not taken his disclosure obligations seriously, nor has he understood that temporary support orders are not suggestions, and must be complied with. He should have complied with the disclosure, support, and costs Orders before the trial commenced.

BACKGROUND FACTS [ 27 ] The parties started living together from May 1, 1995, and were married on June 22, 1996. They had three children together: Inaara Sumar, born July 2, 1998; and twins Aliyah and Jenna Sumar, both born July 30, 2002. Ms. Alalouf also had a son from a prior relationship, Adrien Siniakov, who resided with them. [ 28 ] The parties separated March 1, 2010, but continued to cohabit until March 12, 2012, when the matrimonial home was sold. At that time, Ms. Alalouf moved to Aurora, Ontario. She subsequently moved to Ancaster, Ontario with the children, with Mr. Sumar’s consent. Mr.

Sumar initially moved to the Yonge and Sheppard area, in Toronto, and then subsequently moved to downtown Toronto. [ 29 ] Ms. Alalouf left highschool before graduating, and later earned her high school equivalency. When the parties met, they were both working at a company called Finsec. Ms. Alalouf worked in customer service earning about $33,000 per year and eventually moved into graphic design. After Finsec, Ms. Alalouf worked at AT&T, leaving that job in June 1999, having earned a salary of $40,000.

At that time she was home raising Adrien and Inaara and did not wish to return to AT&T at the conclusion of her maternity leave. After Inaara’s birth and before the twins were born in 2002, Ms. Alalouf had part time work creating websites and doing graphic design. After the twins were born, she became a full time stay at home parent, with four children in her care. [ 30 ] After working at Finsec, Mr. Sumar obtained employment as a Senior Online technology Manager at Dell, with a salary of $125,000. He was an e-commerce specialist entering the field at a time when there were few with his specialized experience.

Thus, although he did not complete his post-secondary studies, he rose in the ranks and by the time he was let go from Dell in 2009 he was earning $189,000 per year and had, in his own view, achieved great things for the company in the e-commerce field. Mr. Sumar testified that Dell had a militant “Texan” culture, which sometimes consumed him. The company, he said, ran around the clock. In the last year at Dell he travelled widely, to countries including Argentina, Brazil, and Panama. It was a busy job and much was expected of him. It was clear that Mr.

Sumar was deeply disappointed by being let go from Dell after all that he had given the company. He stated that he felt pushed out after having spent a decade of his life being on beck and call for Dell. Mr. Sumar indicated that upon termination he received a severance package of one year salary plus vacation pay which he said was paid into his RRSP. He did not produce a copy of the severance package although it had been repeatedly requested. [ 31 ] As Mr. Sumar rose in the ranks at Dell in 2000, Ms. Alalouf was home raising the children, running the household, and managing a large house in Aurora.

She was busy and there was little time to pursue employment. Ms. Alalouf testified that she felt unfulfilled and needed to find a purpose. [ 32 ] In 2007, Ms. Alalouf had a session with a life coach and decided that she wanted to become a life coach herself. Over the next two years or so, she pursued courses through the Coaches Training Institute in both coaching and leadership. She said this as a way to find meaning in her life, but felt that from Mr. Sumar’s perspective he wanted her to earn money. Mr. Sumar testified that he supported the coaching training. Ms.

Alalouf started a business called “Soul of Mother”. [ 33 ] After Dell, Mr. Sumar started “Beansaver”, an on-line company which he hoped would be very lucrative. He went to India to hire an agency to build the site. Unfortunately, Beansaver was not successful and Mr. Sumar shut down the site. [ 34 ] At separation, then, in 2010, Ms. Alalouf had completed her coaching training and had a business name, but was not earning an income. Her 2010 Notice of Assessment shows income of $5,000 being an RRSP withdrawal and no employment or business income that year. Mr.

Sumar had been let go at Dell and Beansaver was not generating the returns he had hoped. No doubt it was a very difficult time for both of them. [ 35 ] As noted, the parties continued to cohabit after separation. Through the first months of 2010 it appears the parties lived on RRSP withdrawals by Mr. Sumar in the amount of approximately $9,000 per month. [ 36 ] In September 2010, Mr. Sumar obtained a job at Sears Canada, where he indicates that he worked closely with the CEO. He said that his brother, Emtiaz Sumar, was affiliated with a recruiter at Sears. Mr.

Sumar held the job until the following October, when he was let go following a personal trip to India with his girlfriend. Ms. Alalouf requested but did not receive a copy of Mr. Sumar’s contract with Sears but believes his income was approximately $200,000 per year. She found a draft, unsigned contract on the family computer in the name “Emtiaz Anwar Sumar”. Mr. Sumar testified that this was not his employment contract, and pointed out that the name on the contract was not his name (it appeared to be a combination of his name and his brother’s name).

There was no explanation as to why the draft contract was on the computer, and Mr. Sumar said he had never seen the draft contract before. I had difficulty with this evidence. [ 37 ] Mr. Sumar’s job at Sears was followed by a period of unemployment from late 2011 until September 2012 when he was hired at Yum! He stayed at Yum! until October 2013 when he was let go because, in Mr. Sumar’s words, they no longer needed a broad subject matter expert. [ 38 ] When the matrimonial home sold in March 2012, Ms. Alalouf initially moved to Aurora on Mr. Sumar’s promise to pay $3,500 per month in support.

He did so for a short period and then reduced the payments to $2,500 per month and then $2,000 per month. [ 39 ] In September 2012, Ms. Alalouf moved to Ancaster, Ontario with the children. At that time she started a coaching business with her then-partner, and became interested in equine facilitated therapy. She bought a horse, Destino, for $7,500, her partner paying $2,500 of the purchase price. [ 40 ] By July 2013, Ms. Alalouf’s relationship ended and Mr. Sumar agreed to increase the support to $2,500 per month. [ 41 ] After separating from her then-partner, Ms.

Alalouf then moved towards the professional area in which she

presently works. She started work as a recruiter, initially in Toronto, with Culture & Company which offered her $40,000 with no commission. She liked the work but the commute was significant, and as she needed to be able to get the children to school, she could not be there until 9:45 in the morning. She was let go after three months. Ms. Alalouf testified that there had been a miscommunication at the beginning and she had thought she would be able to work from home some days which turned out not to be the case. [ 42 ] Ms.

Alalouf’s recruitment work at Culture & Company was followed by work with Three Step Recruitment, where she was an independent recruiter. She worked with that company from sometime in 2015 until March of 2016, when, she testified, the work petered out and her contact was unable to keep her busy enough. [ 43 ] In September of 2016, Ms. Alalouf started at Donaldson & James as a recruiter. In that role she does 100% recruitment, and is not active on the business development side. She testified that it is difficult to work both recruitment and business development (what she called a “360 desk”).

Her compensation varies depending on the nature of the role she is filling. In order to work with Donaldson & James she was required to incorporate, which she did in 2016, forming a corporation called Inaara Consulting. [ 44 ] Less than 30 days after Mr. Sumar was let go from Yum! in October 2013, TC Media reached out to him and offered him a contract position. There was no formal interview. A gentleman named Patrick Lauzon indicated that he trusted Mr. Sumar, and invited him on board. The pay rate was $110,000 per year for an eleven-month contract ending on December 31, 2014. On November 11, 2014, Mr.

Sumar then signed a contract for another position within TC Media to become General Manager of Targeo, with annual remuneration of $195,000 (salary of $190,000 plus a car allowance of $5,000). The contract stated that the role was to start December 1, 2014 with all other working conditions to take effect January 2, 2015. [ 45 ] Mr. Sumar held the position as General Manager of Targeo until February 26, 2016 when he was let go, with a twenty-week severance package, extending his remuneration until July 2016. As noted above, he told Ms. Alalouf that he was given two weeks’ notice.

He explained that from his perspective severance was not income. [ 46 ] Mr. Sumar testified that from February 26, 2016 when he was let go until about May or June 2016 or so, his main focus was not finding work, but addressing the Family Responsibility Office (FRO) arrears that had accumulated and the FRO actions that were being taken against him. He stated that he then started to look for his next role and has found it difficult. He explained that many retailers have shut their doors. Mr.

Sumar testified that he has been looking for work approximately 8 hours per day and that on several occasions, including a prospective job with Canada Goose, he has made it to the final stages but not been hired. [ 47 ] As at the date of the trial he testified that he was being seriously considered for two roles in the $65,000 - $70,000 pay range and that one of them was taking its time finishing up the offer letter. He did not identify what company he was expecting the offer letter from. He also said he expected to find a role in January 2017 and start in February 2017.

As at the conclusion of the trial there was no evidence that an offer had been made. By the last day of trial he had been without employment for almost 11 months, which he stated was “staggering.” [ 48 ] At the time of the trial, Ms. Alalouf continued to reside in Ancaster with the twins, in a rented farmhouse. Inaara had moved to Toronto to commence post-secondary studies. Ms. Alalouf’s rent was $1,565 per month. [ 49 ] At the time of trial, Mr. Sumar was continuing to reside in an apartment in downtown Toronto with a rent of $2,350 per month. Mr.

Sumar testified that he was meeting his expenses by borrowing funds from his siblings. He had not paid any support to Ms. Alalouf since February 2016 although amounts had been seized by the FRO and remitted to Ms. Alalouf. [ 50 ] Mr. Sumar purchased a dog, a Norwegian Buhund, in October 2014. He testified that he loves his dog, Loki, who is part of his family, and acknowledged that in this sense there is no difference between a dog and a horse. [ 51 ] Ms. Alalouf testified that she works her day around the children’s needs.

She drives the children to school, starts her work at 9:00 a.m., and works until the children need to be picked up at the end of the school day. It was unclear on her evidence whether she continues to work after the children have been picked up. In 2016 she earned $25,915. She testified that if all goes well in 2017, she hopes to earn about $30,000. She testified that she may venture into the business development side in 2017. [ 52 ] Mr. Sumar acknowledged in his testimony that he has had very good employment experience over the years and that his expertise has been built over time.

He agreed that he would not have been able to build his twenty-year e-commerce career without Ms. Alalouf having been home with the children. While he was critical of Ms. Alalouf’s decision to purchase a horse, which he said becomes a “lifestyle” which he implied could be expensive and time-consuming, he agreed that the twins are happy and well- adjusted, and have a good life with their mother in Ancaster, Ontario. He stated that they have a holistic lifestyle which has been good for them and their personalities. Mr.

Sumar acknowledged that he has never looked after the children for more than a week at a time and that he does not know what it is like to be a single parent raising children. [ 53 ] Inaara moved to Toronto in September 2016 to commence studies at Ryerson University. In addition to his own rent, at the time of trial, Mr. Sumar was also paying Inaara’s rent in Kensington Market in Toronto, in the amount of $925 per month. He indicated that he is borrowing this amount from his siblings. Ms. Alalouf covered $600 towards Inaara’s tuition for her first semester. As at the date of trial Mr.

Sumar was paying neither child nor spousal support although the twins remained living with Ms. Alalouf in Ancaster. [ 54 ] The parties attended Court on May 9, 2017 to provide further oral submissions with respect to a number of issues in the trial. At that time Mr. Sumar advised that he had just obtained a new job with The Raw Office, and a rate of pay of $70,000 plus benefits. This information was provided from counsel table and not under oath.

IMPACT OF DRAFT SEPARATION AGREEMENTS AND OTHER “AGREEMENTS” [ 55 ] In 2011 and 2012, when the parties had counsel, two draft separation agreements were prepared and exchanged by counsel, but not signed. Both parties acknowledge that these were draft agreements and that they did not agree on the

terms of either agreement. [ 56 ] Mr. Sumar testified that in 2013 a further agreement was prepared, that the parties agreed on the terms, but that it had not been signed. Ms. Alalouf testified, as she had indicated to Justice Lafrenière on a motion, that she had never seen this third draft. I did not admit this third draft agreement on the basis that it was unsigned, and at best amounted to settlement discussions which would be inadmissible. Based on the testimony, I did not believe that Ms.

Alalouf had ever seen the agreement (other than when it was introduced before Justice Lafrenière on the motion) and as such find that it is not relevant to a determination of this matter. [ 57 ] Mr. Sumar said that by 2013, Ms. Alalouf had agreed that the combination of child and spousal support should be $2,000 per month and that they had also agreed that he would purchase Ms. Alalouf’s interest in their jointly owned cottage for $7,200, with him taking over the “marital debt.” He relied on an email from Ms. Alalouf dated October 27, 2012 in which Ms.

Alalouf agreed to child support of $2,000 “for now” and in which she stated that she was not seeking spousal support; and an email dated April 25, 2013 in which she indicated she would take $7,200 for the cottage paid in installments of $600 for one year, with Mr. Sumar to assume all of the debts. Mr. Sumar testified that he had made all of the payments for the cottage, and provided a

summary of payments he said were made by email transfer over the course of a year (5 payments in 2013 and 7 payments in 2014). He says the amounts do not show as $600 each time as they were sometimes paid in combination with other payments for the children’s expenses or for support. Ms. Alalouf’s

summary showed only six payments of $600, between July and December 2013 and for 2014 her chart showed no payments towards the cottage. Payments that Mr. Sumar indicated were towards the cottage were reflected by Ms. Alalouf as counting towards special expenses. However, she did not argue that Mr. Sumar did not pay the $7,200 in total. On a balance of probabilities, on the evidence, I find that Mr. Sumar paid the $7,200 with respect to the cottage. [ 58 ] While the payments made by Mr.

Sumar must be taken into account either as post-separation adjustments or as credits towards his support obligations, and while the email dated October 27, 2012 may be relevant to the commencement date of Mr. Sumar’s spousal support obligations, I find that the emails between the parties do not constitute a binding agreement resolving the issues arising from the parties’ separation on a final basis. Under

section 55 of the Family Law Act , a domestic contract must be in writing, signed by the parties, and witnessed. The emails do not meet those requirements. EQUALIZATION, POST-SEPARATION ADJUSTMENTS, AND THE COTTAGE

a) Equalization [ 59 ] It was clear during the trial that the parties, who were self-represented, had both misunderstood the equalization process and principles upon which it is based. [ 60 ] For example, Ms. Alalouf directed many questions to Mr. Sumar towards whether she herself was aware, during the marriage, of a number of the accounts in Mr. Sumar’s name, whether she had access to those accounts, and whether they were used for the family, business, or other purpose of Mr. Sumar. Similarly, Mr. Sumar directed a number of questions toward whether he knew about or had access to Ms.

Alalouf’s PC Financial Mastercard. The suggestion seemed to be that only the values of some types of assets and debts should be equalized, as opposed to all assets and debts as the Ontario legislation provides. [ 61 ] Mr. Sumar characterized a number of assets as well as debts as “joint” on his net family property statement, in effect arguing that they were used for the family or had already been shared and that therefore they should be construed as jointly owned. [ 62 ]

Section 4 of the Family Law Act provides in part as follows: “ net family property ” means the value of all the property, except property described in subsection (2), that the spouse owns on the valuation date, after deducting. (

a) The spouse’s debts and other liabilities, and (

b) The value of property, other than the matrimonial home, that the spouse owned on the date of marriage, after deducting the spouse’s debts and other liabilities, other than debts and liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as at the date of marriage. [ 63 ]

Section 5 of the Family Law Act provides in part: EQUALIZING OF NET FAMILY PROPERTIES –

(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one half of the difference between them. [ 64 ] Inherent in the definition of net family property (NFP) and the meaning of equalization are a number of principles: [ 65 ] First, at least as a starting point, ownership follows title to an asset for NFP purposes.

That is, absent any successful trust claims, if a party is the legal owner of an asset or debt, it should be reflected on that party’s side of the NFP statement. [ 66 ] Second, what the asset or debt was used for or whether the other party knew about the asset or debt, is generally not relevant to the net family property analysis, absent any claim to unequal division under section 5(6), for example, in the case of a claim based on improvident depletion. Arguments were not made under that

section in this case. [ 67 ] Third, while there may be post-separation adjustments which need to be made to the equalization figure in order to account for transactions post-separation, the NFP analysis is prepared on the basis of the values of assets and debts at the date of separation .

[ 68 ] Finally, the amount required to equalize net family property is half the difference between those amounts. For example, if one party has a net family property of $10,000 and the other party has a net family property of $4,000, the difference is $6,000 and the amount required to equalize is $3,000. [ 69 ] I make the following findings with respect to other values of assets and debts for net family property purposes, and set out below a chart summarizing the equalization calculation: Assets [ 70 ] The parties agreed that the matrimonial home was jointly owned and sold for $990,000 in 2012.

I have used the sale value rather than the date of separation value and have reflected the value as $495,000 in each party’s column. There was no evidence of value at the date of separation in 2010, and in any event, since the asset was jointly owned, any difference between 2010 and 2012 does not affect the equalization amount. [ 71 ] The parties did not agree on the value of their cottage, about which more will be said below. Mr. Sumar asserted that the value was $80,000 or $85,000 and Ms. Alalouf submitted that the value was closer to $130,000.

Neither provided me with admissible evidence as to value other than a statement from their insurance company showing an insurable value of $132,000. In any event, in light of my determination below with respect to the cottage, the precise value does not matter. In the chart below I have placed a value of $66,000 in each party’s side of the ledger based on the $132,000 set out in the insurance statement, for the purpose of calculating the equalization amount only. [ 72 ] The parties agreed that Ms. Alalouf’s Honda Minivan and Mr.

Sumar’s Audi both had a value for NFP purposes of $5,000. [ 73 ] There was a significant difference in perspective regarding the value of household contents at the date of separation, but no documentary evidence or appraisals to assist the Court. Ms. Alalouf estimated the total value to be $3,000, and showed $1,500 for each party on her NFP statement. Mr. Sumar estimated the total value to be $26,500, with Ms. Alalouf having received contents with a value of $25,000 and Mr. Sumar having received contents having a value of $1,500.

Based on the sparse evidence before me, I find on a balance of probabilities that Ms. Alalouf’s estimate of total value is more likely to be accurate. However Ms. Alalouf did not challenge Mr. Sumar’s statement that he received considerably less of the contents than she did. On that basis, I have placed $2,500 on Ms. Alalouf’s side of the ledger and $500 on Mr. Sumar’s side of the ledger for household contents.

While these may seem like “ballpark” values, with the lack of evidence as to the value of items that each party received, this is the Court’s best estimate in the circumstances. [ 74 ] The parties agree that Ms. Alalouf had an RRSP with a value of $30,497 and Mr. Sumar had an RRSP with a value of $70,752 as at March 30, 2010. There was no evidence as to the value of those accounts as at March 1, 2010, the date of separation. I note that Mr. Sumar did not voluntarily produce his RRSP Statement. The statement was obtained by Ms.

Alalouf when she obtained an Authorization and Direction by Order of Justice McLaren. [ 75 ] The parties agreed that Mr. Sumar had a CIBC chequing account at the date of separation having a value of $3,304. The parties also agreed that Mr. Sumar had a TD Canada Trust Chequing Account with a value of $2,141 at the date of separation. [ 76 ] Based on the foregoing, Ms. Alalouf had assets having a value of $598,997 at the date of separation and Mr. Sumar had assets having a value of $642,697 at the date of separation.

Debts [ 77 ] At the date of separation, the parties were jointly liable on a TD Joint Line of Credit (account #3271590) in the amount of $29,891.27. This value is reflected as $14,946 on each side of the ledger. [ 78 ] Ms. Alalouf had an amount owing on her PC Mastercard at the date of separation. She reflects an amount owing of $12,158. However, the parties agreed during oral submissions that the correct value to be used is $12,672, which is closer to the date of separation. [ 79 ] The parties disagreed about the mortgage balance on the matrimonial home, but neither provided a date of separation statement.

As this was a joint obligation, I have used the mortgage balance from the 2012 sale of the home, and attributed $272,848.50 to each party. In the circumstances of this case the exact balance (equally apportioned between the parties) does not affect equalization. [ 80 ] There was much debate about a liability with Scotiabank at the date of separation. As noted above, Mr. Sumar explained that at separation, there was a secured line of credit in his name with Scotiabank. As this was secured against the house, taking out this line of credit required Ms. Alalouf’s consent, which she testified that she gave. Ms.

Alalouf characterized this as a joint second mortgage, with each party owing $15,000. In fact, a certified bank statement from the Bank of Nova Scotia shows that at the date of separation Mr. Sumar alone owed $52,511 on the secured line of credit with the account number 0115711. This is the value that I have reflected on his side of the ledger. While Ms. Alalouf’s consent was required, this does not mean she was a joint borrower.

There is a post-separation adjustment required in relation to this line of credit which I find, based on the Statement of Adjustments provided, was paid off from the proceeds of sale before the net proceeds were shared between the parties. This is addressed below. [ 81 ] Mr. Sumar had a CIBC credit card, account number *4811 which Ms. Alalouf showed as having a value on the date of separation of $23,176, and which she testified she was giving him credit for. The statement was provided by Ms. Alalouf in her Trial Record (attached to Mr.

Sumar’s Financial Statement) and in fact shows that the value closer to the date of separation was $20,742. In oral submissions the parties agreed to use the value of $20,742. As with the secured line of credit discussed above, a post- separation adjustment is required in relation to this debt, as it was paid from the proceeds of sale of the home before net proceeds were

divided between the parties. [ 82 ] Mr. Sumar claimed a further line of credit debt, CIBC account number *7337 in the amount of $25,343, which was not included on Ms. Alalouf’s NFP Statement. Mr. Brendan Bergie of CIBC attended Court and a certified copy of the statement was entered as evidence. That statement shows $25,225 owed on March 1, 2010, after accounting for a payment on that date of $780.14 on that date. I have included this as a debt of Mr. Sumar on the date of separation on the basis of the certified statement and the evidence of Mr.

Bergie. [ 83 ] Finally regarding debts, I note that neither party provided evidence regarding any costs of disposition with respect to the two RRSP accounts, nor were there entries to this effect on either party’s NFP statement. I have therefore not reflected any liability in either party’s column on account of these future debts as at the date of separation. [ 84 ] On the basis of the foregoing, Ms. Alalouf’s debts at the date of separation totaled $300,466.50 and Mr. Sumar’s debts at the date of separation totaled $386,272.50. Date of Marriage [ 85 ] Ms.

Alalouf submitted into evidence a statement from the Canada Revenue Agency showing contributions by her to her RRSP in 1995 in the amount of $8,667. I accept on the balance of probabilities that on June 22, 1996 when the parties married, she had at least $8,667 in her RRSP. I have no evidence regarding disposition costs of the RRSP so I have not reduced the value to account for future tax. [ 86 ] At the Further Settlement Conference the parties agreed that Ms. Alalouf had $6,000 at the date of marriage. I have reflected this date of marriage asset below. [ 87 ] Ms. Alalouf’s NFP Statement showed Mr.

Sumar owing a vehicle at the date of marriage having a value of $7,488, being offset by a loan in the same amount. In her testimony she referred to that amount having been agreed at the Further Settlement Conference although that does not appear to have been documented in Justice Lafrenière’s Endorsement. None of Mr. Sumar’s three Sworn Financial Statements which were in evidence in this proceeding show either a vehicle value at the date of marriage or a vehicle related debt at the date of marriage, nor do his Net Family Property Statements reflect a vehicle or a debt related to a vehicle at the date of marriage.

In oral testimony he indicated that at the date of marriage he had a terrible credit rating and that the Honda was paid for by a loan for which his brother-in-law co-signed. On a balance of probabilities, I find that the value of Mr. Sumar’s Honda at the date of marriage was offset by the related debt, and therefore no net value is deductible in relation to a vehicle at the date of marriage. [ 88 ] On this basis the chart below shows Ms. Alalouf having date of marriage assets having a combined value of $14,867 and Mr. Sumar having date of marriage assets having a value of $0.

The impact of these date of marriage assets is that the value is deducted from the value of each party’s assets at the date of separation, reducing net family property. [ 89 ] On the basis of the foregoing, at the date of separation, Ms. Alalouf’s net family property was $283,863.50 (assets of $598,997 less combined debts of $300,466.50, less date of marriage assets of $14,667) and Mr. Sumar’s net family property was $256,424.50 (assets of $642,697 less debts of $386,272.50, less date of marriage assets of $0). The difference between these two net family properties is $27,429. Half the difference is $13,719.50.

Therefore, before a consideration of post-separation adjustments which are discussed below, Ms. Alalouf owes Mr. Sumar an equalization payment in the amount of $13,719.50. The chart below illustrates the calculations: Ms. Alalouf Mr.

Sumar Notes Asset Assets Matrimonial Home $495,000 $495,000 Agreed value Cottage $66,000 $66,000 Honda Minivan $5,000 Agreed at SC Audi $5,000 Agreed at SC Household Contents $2,500 $500 RRSP $30,497 $70,752 CIBC Chequing $3,304 Agreed at SC TDCT Chequing $2,141 Agreed value Subtotal $598,997 $642,697 Debts TD Joint Line of Credit ($14,946) ($14,946) Agreed at SC PC Mastercard ($12,672) Agreed value Mortgage ($272,848.50) ($272,848.50) Scotia Secured LOC ($52,511) CIBC Visa #4811 ($20,742) Agreed value CIBC Line of Credit ($25,225) Subtotal ($300,466.50) ($386,272.50)

Date of Marriage RRSP ($8,667) Savings ($6,000) Agreed at SC Vehicle N/A Subtotal ($14,667) $0 Net Family Property $283,863.50 $256,424.50 Difference: $27,439 50% of Difference: $13,719.50 Equalization Amount

b) Post-Separation Adjustments [ 90 ] There are a series of post-separation adjustments that have been requested. [ 91 ] Payments in relation to debts : Mr. Sumar seeks credit for payments he said he made on account of what he called “marital debts”. In making this claim, he has lumped together payments on the parties’ one joint debt (the TD joint account #3271590) with payments on debts that are solely in his name. He overstated the debt he has carried when he testified that the Scotiabank secured line of credit was not paid off from the proceeds of sale, where the Statement of Adjustments showed the opposite.

In any event, Mr. Sumar is entitled only to credit for payments made towards the parties’ joint debt. There was only one joint debt at separation other than the mortgage and that was the parties’ TD Joint Line of Credit. [ 92 ] The amount owing on the TD Joint Line of Credit account at the date of separation was $29,892, or $14,946 each. On Mr. Sumar’s financial statement sworn January 9, 2017 it appears that the balance of that account at trial was $30,477. This is consistent with Ms. Alalouf’s financial statement sworn November 28, 2016 which indicates that $30,000 was owing as at that date.

While I would be prepared to order that Ms. Alalouf reimburse Mr. Sumar for 50% of any payments made on this line of credit (assuming no withdrawals since separation) I have no evidence regarding what those payments totaled. While Mr. Sumar asserts on a chart referred to in the trial that from 2010 to 2017 he paid $38,700 in “marital debt interest” this Court has no way of verifying that figure nor is it clear what portion related to the joint debt and what portion related to the debts in his own name solely.

In the circumstances I am not able to grant a post-separation adjustment in relation to debt payments on the Joint Line of Credit since separation. [ 93 ] Unequal Funds from Proceeds of Sale : The parties agreed that they did not receive the same amount from the net proceeds of sale of the home. Ms. Alalouf says she received $3,500 more than Mr. Sumar did as a payment for the first month of support (March 2012). Mr. Sumar says that she received $5,000 more than he did “on account of Beansaver”. Based on the Statement of Adjustments, however, it appears that in fact Ms. Alalouf received $4,250 from Mr.

Sumar’s 50% share of the net proceeds of sale. On the basis of Ms. Alalouf’s testimony on this issue, which I find was credible, I would not characterize this as a post-separation adjustment, but as a credit towards Mr. Sumar’s support obligations for the year 2012. [ 94 ] Payment towards Cottage : As set out above, Mr. Sumar is entitled to a credit of $7,200 as a post- separation adjustment for the payments he made towards the cottage. [ 95 ] Cottage expenses : Since separation, Mr. Sumar carried the expenses in relation to the cottage for a period of time. This is acknowledged by Ms. Alalouf.

Some of those expenses have now fallen into arrears. As the cottage is jointly owned, Mr. Sumar is entitled to credit for half of those expenses to the extent that they can be determined on the evidence. Mr. Sumar provided a chart summarizing expenses in relation to the cottage from 2012 to 2016. These total $48,012.55. After offsetting the rent that he indicates was received in the amount of $16,800, the total expenses for that period, he says, were $31,212. He claims a contribution from Ms.

Alalouf of half of that amount, or $15,606. [ 96 ] The expenses on the chart do not seem unreasonable or improbable, nor did Ms. Alalouf suggest that the chart was not a fair representation of the expenses of the cottage (although she did indicate that she did not receive supporting documentation). The items include expenses such as the lease, maintenance fees, septic flush, hydro, and opening/closing of the cottage in amounts that appear reasonable on their face. [ 97 ] Mr.

Sumar has included in the list of expenses the lease for 2016 in the amount of $7,318 which the evidence shows was not paid for 2016 (the lease was in arrears). The total claimed should therefore be reduced by that amount. I find based on the evidence that the shareable expenses totaled $23,894, of which $11,947 (50%) should be a post-separation adjustment in favour of Mr. Sumar. The effect of this adjustment is that Ms.

Alalouf will have contributed her 50% share to the cottage expenses to December 31, 2016, save and except the lease, to which she will have contributed her 50% share to the end of 2015. (No adjustment was claimed for 2010 or 2011 while the parties were under the same roof, nor was there any evidence about what those expenses were at that time. The parties were in any event continuing the status quo and no “support” was being paid as I discuss further below.) The parties are jointly liable for the unpaid rent for 2016 and 2017. [ 98 ] Debts in Mr.

Sumar’s name paid from Proceeds of Sale of Home : The Statement of Adjustments in relation to the sale of the matrimonial home shows that before the proceeds of sale were distributed between Mr. Sumar and Ms. Alalouf,

two debts in Mr. Sumar’s name, for which he has received full credit in the net family property accounting set out above, were paid from the proceeds of sale, contrary to his sworn testimony. On the Statement of Adjustments, this is characterized as a “second mortgage” in favour of the Bank of Nova Scotia in the amount of $74,526. In a separate letter in the reporting package from the real estate lawyer, it is clear that this one line item is actually comprised of several amounts: the secured business line of credit in the amount of $55,004; interest of $64; the amount owing on Mr.

Sumar’s CIBC Visa of $19,357; and, a $100 discharge fee. By paying these amounts “off the top” before a division of the proceeds of sale between the parties, Ms. Alalouf effectively paid $37,263 (half of the disbursement of $74,526) towards debts in Mr. Sumar’s name. A post-separation adjustment is due to her in that amount. [ 99 ] I note, parenthetically, that Mr. Sumar submitted into evidence a letter from CIBC dated April 26, 2016 which stated that as at that date, he owed $25,847.64 on his “Select Visa”. Unfortunately, no account number is provided.

This would appear to be the same Visa shown on his Financial Statement sworn November 11, 2015, referred to therein as the CIBC sole credit card (account #*4811) to which a statement is attached indicating that this is a “Select Visa”. In view of the Statement of Adjustments which indicates that $19,327.25 was paid on the “Business Visa”, and Mr. Sumar’s sworn documents which have only ever reflected the existence of one Visa card, it appears that Mr. Sumar’s Visa was paid off in 2012.

This would suggest that in 2017, at trial, he may have been attempting to claim a contribution to interest paid on a sole debt accumulated after the sale of the matrimonial home. (

c) Conclusion on Equalization, and Post-Separation Adjustments [ 100 ] In

summary, the total adjusted equalization payment, after accounting for post-separation adjustments, is $4,397.50 owing from Mr. Sumar to Ms. Alalouf, calculated as follows: Equalization payment owed by Ms. Alalouf to Mr. Sumar $13,719.50 Cottage Payments to be repaid by Ms. Alalouf to Mr. Sumar $7,200 50% of Cottage Expenses owed by Ms. Alalouf to Mr. Sumar $11,946 Subtotal $32,865.50 Credit Ms. Alalouf’s 50% of payments on Mr. Sumar’s debts from proceeds of sale ($37,263) Net Adjusted Equalization payment owing to Ms. Alalouf $4,397.50 (

d) The Cottage [ 101 ] As set out above, the parties have an interest in a cottage on leased land on the Saugeen First Nation, on what Mr. Sumar referred to as a “locatee plot”. [ 102 ] Mr. Sumar seeks an Order that Ms. Alalouf’s half interest in the cottage be transferred to him, based on the email referred to in paragraph 57 above, and his payment of $7,200. [ 103 ] Ms. Alalouf seeks an Order that the cottage be sold and that the proceeds be allocated in a particular manner. [ 104 ] Had this cottage not been located on leased First Nations Land, an Order for sale of the cottage would have been appropriate.

However, in light of the location of the cottage, and for the reasons below, this Court is without jurisdiction to make either of the Orders sought. [ 105 ] The parties jointly acquired a leasehold interest in the property in 2006 by virtue of an Assignment of Lease which they both signed. The Agreement is between themselves and the Crown, with the consent of the “locatee”, the Estate of Virginia George. The “locatee” is a Band member in lawful possession of the land, transferred to him or her with the approval of the Minister of Aboriginal Affairs and Northern Development.

In addition to the Assignment of Lease, there is a Bill of Sale, made out to both parties, related to the cottage and contents. [ 106 ] The parties entered into “Rent Revision Agreement” with the Crown, which provides for rent in the amount of $6,107 per year, which rent was concurred with by the Saugeen First Nation which appears on the evidence to be the entity collecting the rent. There appear to have been rent increases since the agreement was signed in 2006. The lease term ended April 30, 2011 and was not renewed. Mr. Sumar testified that the cottage cannot be transferred or sold until the lease is renewed.

Rent continued to be paid until 2015, but on the evidence has not been paid for 2016 or 2017. [ 107 ] Ms. Alalouf has consulted counsel who has contacted the Ministry of Indian and Northern Affairs to ascertain what steps need to be taken to ensure the lease is renewed, as the parties cannot transact in relation to any interest in the lease and cottage until that has been resolved. [ 108 ] At the trial, neither party made submissions regarding the jurisdiction of this Court to make orders regarding transfer or sale of the cottage in view of the fact that it is located on the Saugeen First Nation.

Accordingly, the Court invited further oral submissions from the parties on this issue, which were heard May 9, 2016.

[109] Both parties had consulted counsel before attending Court to make their submissions. Ms. Alalouf concededthat although she had initially sought an Order that the Court order sale of the cottage, her new position was that this Court does not havejurisdiction to make that Order. She did not have a submission as to how, in this circumstance, the cottage issue should then be resolved.Mr. Sumar took the position that this Court does have jurisdiction to make orders affecting interests in the property, and, consistent withhis submissions at trial, urged the Court to order that Ms.

Alalouf’s interest be transferred to him. Neither party cited any case law fortheir positions on this issue. [110] In my view, this Court does not have jurisdiction to order either sale or transfer of the cottage in which theparties have an interest. This land, situated on the Saugeen First Nation, is governed by provisions of the Indian Act, R.S.C., 1985, c.I-5.As the Ontario Court of Appeal stated in Syrette v. Syrette, 2012 ONCA 693: On the authority of the Supreme Court of Canada’s decision in Derrickson v.

Derrickson, (SCC), [1986] 1 S.C.R. 285(S.C.C.) and its progeny, neither this Court nor the application judge in this case have authority to make any order concerning thepossession, ownership or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of theIndian Act, S.C. c.I-5. [111] In Syrette, supra, the husband and wife were status Indians within the meaning of the Indian Act. During themarriage, the husband was granted a Certificate of Possession by the Band council.

The parties built a house, in which the Court foundthat the parties had an equal interest for equalization purposes, on that land. At separation, the wife brought an application forequalization and spousal support. The husband sought exclusive possession of the home.

Justice Koke of the Superior Court of Justicestated: It is now well established that the Family Law Act of Ontario and similar acts passed by other provinces and territories in Canada do notconfer jurisdiction on a Court to interfere with lands on a reserve… The Courts have consistently held that the right to possession andownership of lands on an Indian reserve is the very essence of the federal exclusive power under s.91(24) of the Constitution Act, 1867. [112] In Mohawks of the Bay of Quinte v.

Brant, 2013 ONSC 4733, the Court considered the implications of theSyrette decision, summarizing as follows: In my view, the principle in Syrette, supra, and Derrickson, supra … preclude[s] the court in family law matters from making an order asbetween spouses for the ownership, right of possession, transfer of title, partition, or sale of property, or severance of joint tenancy inregards to lands that are situated on a reserve. See paragraph 49. [113] Syrette concerned the land and a matrimonial home.

In this case I did not hear argument about whether thecottage in question would constitute a matrimonial home, although I do not find that anything turns on this.

Even if the cottage is not amatrimonial home, I find that the Court is precluded from making either of the Orders sought by the parties. [114] In Syrette, supra, the Ontario Court of Appeal seemed to suggest that perhaps some built structures mightnot be considered part of the “land,” stating, “The application judge made no finding, and the appellant, although invited to do so, couldpoint to no evidence that the home is of a type rendering it readily severable from the land on which it is located.” This seems to suggestthat perhaps trailers or other mobile structures could be regarded as chattels.

In this case, I have no evidence that this cottage is mobile or“easily severable from the land.” [115] In Seguin v. Pelletier, 2001 CarswellOnt 1536, Justice Platana found that two properties, a service stationand a residential property situated on a reserve, were not chattels or movable property as argued by a party. Justice Platana rejected anysuggestion that a distinction should be made between how chattels are defined off reserve or on reserve land.

He concluded: “I go nofurther as to this issue in these reasons then to say that I reject completely the argument that the fact that the buildings are situated on areserve property under a Certificate of Possession designates those as chattels.” See paragraph 31. [116] In Stack v. T. Eaton Co., 1902 CarswellOnt 399, Justice Meredith held as follows: “Articles affixed to theland even slightly are to be considered part of the land unless the circumstances are such as to shew they were intended to continue aschattels.” See paragraph 3.

In this case, although the documentation under which the cottage was transferred and the Reporting Letter inrelation to same use imprecise language, I find that this does not alter the fundamental character of the cottage as a structure that is “partof the land”. [117] In the circumstances, this Court can make no Order concerning possession, ownership or disposition ofsame of the cottage property. [118] I acknowledge that this conclusion leaves the parties somewhat “in limbo” in terms of how to move forwardwith the cottage.

During oral submissions I encouraged the parties to speak directly about the cottage issue as there are likely a range ofoptions which can be considered by mutual agreement, absent this Court’s jurisdiction to make the determination for them. [119] As the parties consider their options, the following findings should guide them: 1. Under this Decision, by virtue of the post-separation adjustments above in relation to the cottage expenses, Ms. Alalouf will haveshared equally the cottage expenses to December 31, 2016, except the lease, of which she will have effectively paid her 50% share untilDecember 2015.

In arriving at this conclusion I rely on the

summary chart prepared by Mr. Sumar which was not in evidence but wasintended as a guide for the Court’s

interpretation of the evidence. Both parties are thus in arrears on the lease from 2016 onwards. 2. The value of all other assets and debts of both parties at the date of separation has been equalized in this Judgment, and all other validpost-separation adjustments have been applied; no further credits/offsets in relation to the equalization process or post-separationadjustments are applicable to any proposed sharing of value of the cottage; 3. Child and spousal support calculations addressing overpayment or underpayment are addressed below, such that there should be no

further “offsets” or “credits” applied in respect of the equalizing of value of the cottage; 4. In making these comments I wish to be clear that this Court is making no determination of any kind regarding the parties’ right of ownership or possession to the lands and cottage in question. Syrette (OCA), supra , at paragraph 7. 5.

I am mindful that in the Supreme Court of Canada case in Derrickson , supra , where, although the Court held that the BC Family Relations Act did not apply to ownership and possession with respect to immovable property on Indian reserve land, the Court also held that it could adjust the division of property as between the spouses where property exists but cannot be divided because no division can be made on reserve lands.

This paragraph is intended to convey that the applicable adjustments of value in relation to equalization, post- separation adjustments, and retroactive support have all been made under this Decision. (

e) The Parties’ Joint Line of Credit [ 120 ] The parties have a joint line of credit (TD Joint Line of Credit, account #3271590), referred to above at paragraph 77, on which approximately $30,000 is owed. Ms. Alalouf sought an Order that the line of credit be paid out from the proceeds of the sale of the cottage.

The Court is unable to make that Order, given that for the reasons set out above, the Court cannot order the sale of the cottage. [ 121 ] Neither party shall incur any further expenses on this line of credit without the prior written consent of the other party. [ 122 ] Both parties are equally responsible for interest accruing on this account from January 1, 2017. [ 123 ] Each party shall be responsible for 50% of the balance owing as at December 31, 2016, estimated to be approximately $15,000 each ($30,000 in total). [ 124 ] I have found above that there is insufficient evidence to require any payment from Ms.

Alalouf to Mr. Sumar on account of interest payments made by him on this account.

RETROACTIVE CHILD AND SPOUSAL SUPPORT/ ARREARS Impact of Temporary Orders [ 125 ] There were three temporary support orders in this matter: The Order of Justice Lafrenière dated October 19, 2015 providing for child support in the amount of $3,259 for three children and spousal support in the amount of $3,125, retroactive to January 1, 2015; the Order of Justice Mazza dated July 7, 2016, suspending the enforcement of arrears under Justice Lafrenière’s Order; and the Order of Justice Mazza dated December 15, 2016 setting child support at $1,356 for three children and spousal support at $660, commencing December 1, 2016. [ 126 ] At trial, Ms.

Alalouf sought the enforcement of the arrears under two temporary support Orders. Mr. Sumar sought to persuade the Court that the temporary support orders were made based on wrong principles and that support should not have been made retroactive to January 1, 2015. He did not appeal any of the Orders. [ 127 ] Temporary Orders are adjustable at trial. Temporary orders are made on a motion, based on affidavit evidence, without the benefit of cross examination or the full record that is available at trial.

Such Orders are inherently variable by the trial judge, both in terms of quantum and duration, as well as commencement date, when better and more complete evidence is available at trial. Therefore, the issue is not as simple as ordering enforcement of arrears accumulated under the temporary Orders, and requires an examination of the support that should have been payable with the benefit of the evidence that was available at trial. Retroactive Support and/or Adjustment – 2010 to 2014 [ 128 ] In her Application, Ms.

Alalouf sought child and spousal support retroactive to March 1, 2012, when the matrimonial home was sold. At trial, however, she indicated that she was only pursuing retroactive support before the date of her Application in 2014, if Mr. Sumar pursued his claim for repayment of what he said were overpayments of voluntary support from March 1, 2010 forward. [ 129 ] For the reasons below, I find that there is no basis for adjustment of child or spousal support paid prior to January 1, 2015. No Retroactive Decrease from March 2010 to December 31, 2014 [ 130 ] In oral evidence Mr.

Sumar stated that he is seeking repayment of child and spousal support paid from the date of separation in 2010. His position was that he had overpaid throughout and that he is entitled to repayment of $126,003.16, which he says is the amount by which he has overpaid until December 31, 2016. [ 131 ] From March 1, 2010, the date of separation, until March 1, 2012, the parties resided in the matrimonial home and the status quo continued with respect to the financial arrangements. Mr. Sumar continued to pay for the expenses of the home and the family, as he had, as breadwinner, throughout the marriage.

This Court is not prepared to make any support adjustments for the period from March 1, 2010 when the parties separated until the sale of the home in 2012, nor was the Court provided with evidence which would assist in quantifying any overpayment (or underpayment for that matter) during this period. [ 132 ] From March 1, 2012 until November 19, 2014 (when Ms. Alalouf brought her Application in which she claimed child and spousal support), Mr. Sumar made voluntary payments which ranged in amount and were not always consistent. It was

not until Mr. Sumar’s Answer, signed February 7, 2015, that he took the formal position that no spousal support was payable. During this time the parties were negotiating, initially with counsel and then without. Ms. Alalouf would have had no reasonable expectation that Mr. Sumar would later argue that some or all of those amounts should be repaid. [ 133 ] Leaving aside the difficulty, for the reasons set out below, in quantifying any overpayment in child and/or spousal support, if any, it would cause considerable hardship to Ms. Alalouf for the Court to now find that amounts voluntarily paid by Mr.

Sumar should be repaid. Ms. Alalouf’s financial statement shows that there has been no accumulation of assets by her since separation (and in fact there has been a depletion of assets) and that the support has been spent to run her household initially for herself and three children, and more recently for herself and two children. Ms. Alalouf was doing her best to meet all of their needs on her own limited income and the voluntary support. [ 134 ] In any event, for the year 2013, Mr. Sumar’s

summary of payments to Ms. Alalouf is not reliable. Mr. Sumar’s chart of payments made showed $38,772 having been paid to Ms. Alalouf for that year. This contradicts Ms. Alalouf’s records, which I find on a balance of probabilities are more reliable, which show that Mr. Sumar paid $27,084 that year in undifferentiated support. This is roughly the same as the total of the email transfers for that year. It is important to note that those email transfers, on Mr. Sumar’s own evidence, included five payments of $600 in 2013 in relation to the cottage, thereby reducing “support” paid to approximately $24,000. Mr.

Sumar’s income that year was $105,264. Child support for three children would have been $1,927 per month for a total of $23,124 for the year. The “overpayment,” if any, would have been modest. [ 135 ] In 2014, Mr. Sumar’s records align more closely with Ms. Alalouf’s records. Ms. Alalouf’s records indicate that she received $38,108 that year in undifferentiated support. Mr. Sumar’s chart shows payments of $38,400. His income was $110,703 for that year. Table support for three children would have been $2,013 per month, for a total of $24,156 for the year. This suggests that Mr.

Sumar met his child support obligation and paid approximately $14,000 in additional support for 2014. [ 136 ] Courts have been clear that where a retroactive decrease in support is sought, the principles set out in S. (D.B.) v. G. (S.R )., 2006 SCC 37 apply – namely: taking account the circumstances of the children, the conduct of the payor, any hardship from a retroactive award, and any reason for delay on the part of the payor in seeking a change. See Corcios v. Burgos , 2011 ONSC 3326 , and the Ontario Court of Appeal’s decision in Gray v. Rizzi , 2016 ONCA 152 .

These cases also set out the importance of a payor providing effective notice of an intent to change child support arrangements and the duty to initiate proceedings in a timely manner to address support if negotiations are not successful; as well as the importance of considering the hardship that may be occasioned by a retroactive Order. [ 137 ] Both in Corcios , supra and Gray , supra , the payor sought a retroactive reduction of support paid under a Court Order , where arrears had accumulated over time. In this case, there was no Order, either temporary or final, until October 19, 2015, and Mr.

Sumar was simply making voluntary payments during the parties’ negotiations. He was in control of how much he paid and when he paid it and could have adjusted his payments if he felt he was paying too much. He could have started proceedings at an earlier stage had he wanted precision about what the support payments should have been. He could have explicitly stated that the voluntary support payments were without prejudice and subject to adjustment. There was no evidence before me that any of these steps were taken. [ 138 ] Applying the principles from D.B.S., supra , I would add as follows: Amounts paid by Mr.

Sumar on a voluntary basis were used for the support of the children and Ms. Alalouf at the time the payments were made. During this time, Mr. Sumar was not providing disclosure requested by Ms. Alalouf and/or her counsel, which would have assisted in negotiations. This conduct, as I have found above, continued well after the proceedings were initiated. Finally, as I have indicated, there would be considerable hardship to Ms. Alalouf from any retroactive award as amounts paid by Mr. Sumar were used for the children’s support at the time that the amounts were paid.

No Retroactive Increase from March 2010 to December 31, 2014 [ 139 ] As noted, Ms. Alalouf indicated at Trial that she was only seeking retroactive child and spousal support if Mr. Sumar pursued his argument about retroactive overpayment. She did not assert a specific amount by which she believes she was underpaid. [ 140 ] For the period from 2010 until the house was sold in March 2012, while the parties were separated but remained under the same roof, I find, for the same reason as set out above, that no retroactive adjustment is applicable.

The parties simply continued the status quo . [ 141 ] For the period from March 2012 until the December 31, 2014, shortly after Ms. Alalouf started proceedings, I find, as set out above and based on the evidence at trial, that it appears that Mr. Sumar met his child support obligation. It appears that in 2014 he paid some $14,000 over and above child support. This additional amount was paid net of tax and not claimed on either party’s income tax return, increasing its value to Ms. Alalouf as compared with formal spousal support. [ 142 ] As noted above, on October 27, 2012, Ms. Alalouf sent an email to Mr.

Sumar indicating that she was not seeking spousal support. I find this compromises her ability to claim retroactive spousal support until she gave formal notice in her Application. [ 143 ] From the date of the Application in November of 2014, it was clear that Ms. Alalouf was seeking ongoing child and spousal support from Mr. Sumar in accordance with the applicable Guidelines . From February 7, 2015, it was clear that Mr. Sumar’s position was that no spousal support was payable.

Child and Spousal Support Adjustments for 2015 and 2016 [ 144 ] I find that the appropriate date from which to consider any adjustment of child and spousal support in this case is January 1, 2015.

[145] Child and spousal support from January 1, 2015 is not “retroactive support.” Rather, as child support wasclaimed in Ms. Alalouf’s Application, the issue is prospective child and spousal support from January 1, 2015. From that point Mr.Sumar had formal notice that Ms. Alalouf was claiming ongoing child support in accordance with the Child Support Guidelines. SeeMacKinnon v. MacKinnon, (ON CA), 2005 CarswellOnt 1536. Incomes for Support Purposes in 2015 and 2016 Mr. Sumar’s Income [146] For the reasons set out below, I find that Mr. Sumar’s 2015 income for support purposes is his actualincome for that year.

For 2016, I have imputed income to him for part of the year and find his income for support purposes to be$170,965. [147] On the evidence, Mr. Sumar had job stability from the year 2000 until 2009 when he left Dell. He earned$125,000 when he started at Dell and $189,000 when he left Dell. He had steadily risen within the company and was a senior executiveat the time of his departure. After Dell, Mr. Sumar started Beansaver, and was then employed at lower incomes than when he left Dell,for 2013 and 2014. In 2015 his income rose again to a level similar to his last year at Dell. Mr.

Sumar’s income from the date of theparties’ physical separation was as follows: 2012: $32,000 2013: $105,264 2014: $110,703 2015: $196,678 [148] For 2015, for the purpose of calculating support owed, Mr. Sumar’s earned income of $196,678, as shownon his Notice of Assessment, is the appropriate amount to use. [149] For 2016, Mr. Sumar’s income for support purposes requires greater analysis. Ms. Alalouf argues thatincome should be imputed to Mr. Sumar for the year 2016 and this Court agrees. Mr.

Sumar delayed in seeking new employment afterlosing his job at Targeo and has significant demonstrated earning capacity. [150] As set out above, Mr. Sumar lost his job as General Manager of Targeo on February 26, 2016. Although heacknowledged that he told Ms. Alalouf that this severance package was two weeks’ salary, in fact his severance package was 20 weeks induration, effectively taking his pay until the end of July 2016. His pay rate from January to July 2016 was therefore $195,000. [151] By the time the trial commenced in January 2017, Mr.

Sumar had not found new employment at any paylevel, much less at his prior income of $195,000. At that point he had been unemployed for almost eleven months. Mr. Sumar stated thathe was not really focused on looking for a job in the spring of 2016 due to his difficulties with the Family Responsibility Office and thatit was not until July that he really started the job search. He should have been looking for work throughout this period. [152] In Mr. Sumar’s evidence it was clear that he is a sought after subject matter expert in the area of e-commerce.

While he has had periods of unemployment in the past, in general he has not had difficulty finding work. For example, inSeptember 2012, Yum! reached out to him and offered him a job, which he held until October 2013. When that job ended, TC Mediacontacted him less than a month later to offer him a job earning $110,000. About a year later he was offered the General ManagerPosition at Targeo earning $195,000. On Mr. Sumar’s evidence, in each case, the employer came to him, seeking out his expertise andexperience. Mr.

Sumar did not have a formal “job” after he left Dell from 2009 until September 2010 when he joined Sears. He was atthat time building up his own business, Beansaver, and cannot be said to have been “unemployed” as he was developing his business. Mr. Sumar did have a period after he left Sears in late 2011 and until he was hired at Yum! in September 2012 where he appears to havebeen unemployed. On balance however, Mr. Sumar has consistently held senior positions earning salaries between $110,000 and$195,000 over the last 16 years with few interruptions. [153] Mr.

Sumar testified that since he lost his job in February 2016, with the exception of the period until Julywhen he was focused on his issues with the FRO, he had been looking for work five days per week, eight hours per day. This would beliterally hundreds of hours of job searching (1700 or so if he had started just after his termination in February 2016 and over 1000 hourson his own evidence that he started looking for work in earnest in July 2016).

His description in his testimony of the relative ease withwhich he secured other positions, with the exception of the period between late 2011 and September 2012 when he was hired at Yum!,make it difficult to believe that if he had been diligently looking for work for so many months, he would not have secured a position. [154] Mr. Sumar provided a chart setting out the positions he has applied for since his termination in February2016.

Notably, that chart starts on April 15, 2016 and ends on October 21, 2016, even though the trial was in January 2017 and Mr.Sumar would have known that up-to-date information about his job search would be essential. The chart indicates that he has pursued 51positions since his termination ten months before trial. Not all are “applications” per se – some are listed simply as “emailedcommunication”. If these are all of the positions he has applied to and interviewed for, this is an average of less than five per month overthe almost eleven months of unemployment. While I appreciate that Mr.

Sumar works in a specialized field, if he had been searching forwork eight hours per day, five days per week as he testified that he is, his job search would be further advanced. [155] Mr. Sumar advised Justice Mazza in July 2016 that he expected to have employment within 90 days (2016

ONSC 4485). [156] Mr. Sumar testified that he limited his job search to roles offering a salary of $110,000 or higher. [157] Towards the end of the trial, Mr. Sumar testifie

[…]