BACKGROUND
The Applicant, Louris Korie, and the Respondent, Henri Korie were married in 2002 and separated in July of 2022. They have two children aged 21 and 17. The parties’ major assets included the Respondent’s pension, the jointly owned matrimonial home, where the parties continued to reside post-separation, and a jointly owned investment property (the Mohawk property), which the Applicant also used as a salon for her lash business.
Throughout their marriage, the parties pooled their finances and jointly invested in properties. Upon separation, the Applicant sought a cash equalization payment to secure adequate housing and continue her business, while the Respondent sought to satisfy the equalization payment obligation through a pension rollover.
The issues to be determined include the method of the equalization payment, addressing the unjust enrichment, retroactive support and restraining order claims made by the Applicant, and costs.
ANALYSIS AND THE LAW
Method of Equalization Payment
The Family Law Act (FLA) sets out the available methods to implement an equalization payment in sections 9 and 10.1. The court considered three options, including a lump sum cash payment (section 9(1)(a) FLA), a pension rollover (section 10.1(3) FLA), or installments (section 9(1)(c) FLA).
The court rejected the option of payment by installments as this would continue to tie the parties together, which is not in their interests or the best interests of the children.
In VanderWal v. VanderWal, 2015 ONSC 384, the court held that there is no presumption or statutory onus that an equalization payment will be made by the transfer of a lump sum out of a pension plan. Each case must be determined on its own merits and through the factors outlined in section 10.1(4) of the FLA, including the nature of the assets available to each spouse, the proportion of a spouse’s net family property that consists of the imputed value of their interest in the pension plan, the liquidity of the lump sum in the hands of the spouse to whom it would be transferred, the contingent tax liabilities, and the resources available to each spouse to meet their retirement needs. The court determined that a lump sum payment would unfairly deplete the Respondent’s liquidity and leave him disadvantaged.
The court concluded that a pension rollover was the most fair and equitable remedy for satisfying the equalization payment obligation.
Unjust Enrichment
In Kerr v Baranow, 2011 SCC 10, the court established that there is unjust enrichment where there is (1) an enrichment, (2) a corresponding deprivation, and (3) an absence of a juristic reason for the enrichment.
The court dismissed the unjust enrichment claim, finding insufficient evidence that the Respondent entered the marriage with the claimed liability. While the Respondent may have benefited from the Applicant’s renovation contributions, there was no proven deprivation, as the Applicant also gained rental and business income. A juristic reason existed, as both parties jointly owned the property and shared financial duties.
Retroactive Support
The court in D. B. S. v S. R. G., 2006 SCC 27 considered four factors in determining retroactive child support, including: (1) the recipient provided a reasonable excuse for delay in seeking support; (2) the conduct of the payor parent; (3) the circumstances of the child; and (4) the hardship the retroactive award may cause the payor. The case of Kerr v Baranow, 2011 SCC 10, outlines similar principles as above but tailored to the spousal context.
The court rejected the Applicant’s claim for retroactive support as the evidence demonstrated that the Respondent paid most of the household and child-related expenses post-separation and that his financial capacity was limited.
Restraining Order
Section 46 of the FLA allows for a restraining order if the applicant has reasonable grounds to fear for their safety or that of a child. This test is both objective and subjective.
The court dismissed this claim and concluded that the Applicant’s request was unfounded Evidence demonstrated that the parties cohabited peacefully for nearly three years post-separation, there was no pattern of harassment or violence, and the witnesses’ allegations were vague, dated and lacked the necessary corroboration. The respondent has also complied with the boundaries once communicated by the Applicant.
Cost
Under Rule 24 of the Family Law Rules, costs presumptively go to the successful party. The court can also assess conduct, settlement offers, and reasonableness of litigation behaviour when determining entitlement and quantum.
The court found that the Respondent was successful on all contested issues. Considering the divided success, the reasonable settlement conduct of the Applicant, and her unreasonable pursuit of the restraining order, the court ordered the Applicant to pay the respondent $4,000 in costs.