Facts
The Applicant wife and the Respondent husband began cohabiting in 1999, married in 2010, and had two children together. The Respondent also stood in the place of a parent to the Applicant’s child from a previous relationship. Although the parties disagreed on the exact separation date, the Court ultimately found that they separated on June 15, 2018.
During the marriage, the Respondent was the family’s primary financial provider while the Applicant was primarily a full-time homemaker and caregiver for the children. Near the end of the relationship, the Applicant returned to the workforce and eventually obtained full-time employment as an Assistant Project Manager. Following the separation, the Applicant assumed sole responsibility for raising the children, paying their educational and extracurricular expenses, and covering all section 7 expenses. The Respondent paid no child support or section 7 expenses after separation.
The Respondent had previously played professional hockey and later worked in player development, consulting, real estate, construction, and various business ventures. He also received a pension from being a professional athlete. Throughout the litigation, however, he maintained that he was unemployed or earning minimal income. The Applicant alleged that the Respondent intentionally understated his income, failed to make proper financial disclosure, and ignored numerous court orders requiring him to produce financial documents.
The parties also disputed the ownership and disposition of the matrimonial home. Neither party resided there following the separation. The Respondent changed the locks without the Applicant’s consent, prevented the Applicant and the children from accessing the property, sold various family assets, and attempted to list the property for sale without the Applicant’s consent. The Applicant sought equalization, retroactive child support, reimbursement of section 7 expenses, exclusive possession of the matrimonial home for the purpose of its sale, and an order vesting title in her name.
Issue
- What was the parties’ date of separation?
- Should income be imputed to the Respondent for child support purposes?
- Was the Applicant entitled to equalization of net family property and reimbursement of retroactive child support and section 7 expenses?
- Should the matrimonial home be vested in the Applicant and sold under her exclusive control?
Analysis
The Court was highly critical of the Respondent’s failure to comply with his financial disclosure obligations under the Family Law Rules. Despite multiple court orders, he failed to produce updated financial statements, pension valuations, business valuations, proof of date-of-marriage assets, and other required disclosure. His financial statements were incomplete and inconsistent with his income tax records, and his testimony frequently contradicted the documentary evidence. Although the Court declined to strike his pleadings entirely, it restricted the evidence he could rely upon because of his repeated non-compliance.
- Separation Date
The Court determined that the parties separated on June 15, 2018, accepting the Applicant’s evidence over the Respondent’s. Although the Respondent argued that the separation occurred in September 2017, the Court found substantial evidence demonstrating that the relationship continued well beyond that date. The parties continued presenting themselves publicly as a family, the Respondent financially supported the family’s living arrangements, and all three children testified that the separation occurred in or around June 2018. The Respondent produced no persuasive evidence demonstrating that the relationship had ended earlier.
- Imputing Income
Applying the principles established in Drygala v. Pauli, the Court emphasized that income may be imputed where a party is intentionally unemployed or underemployed; bad faith is not required. The Court found that the Respondent had extensive employment experience as a professional athlete, consultant, businessman, real estate licensee, construction worker, and political candidate. He had also received income through consulting work, charitable hockey events, business interests, and a professional athlete pension.
Although the Respondent argued that injuries from his hockey career prevented him from working, the Court found this evidence unpersuasive. During the relationship he remained highly active, supported the family financially, participated in political campaigns, renovated properties, and continued working in a variety of capacities. The Court also noted that many occupations available to the Respondent were not physically demanding.
Given the evidence, the Court concluded that the Respondent was intentionally underemployed and imputed an annual income of $44,500, consisting of minimum wage employment together with the monthly income available from his professional athlete pension.
- Equalization and Reimbursement of Retroactive Child Support and Section 7 Expenses
Based on that imputed income, the Court ordered retroactive child support and reimbursement of the Applicant’s section 7 expenses. The evidence established that the Applicant had solely funded the children’s education, tuition, residence costs, transportation, and other extraordinary expenses following separation. The Respondent contributed almost nothing despite having the ability to earn income.
With respect to equalization, the Court accepted the Applicant’s calculations because they were supported by the evidence presented at trial and were not meaningfully challenged by the Respondent. The Respondent refused to provide an alternative calculation and instead generally disputed the process while failing to identify specific errors in the Applicant’s figures. As a result, the Court ordered the Respondent to pay the Applicant $228,407.82 as an equalization payment.
- Matrimonial Home
The Court concluded that the matrimonial home should be vested in the Applicant with exclusive authority to sell it. The Respondent had repeatedly failed to comply with court orders, ignored his disclosure obligations, refused to acknowledge that he owed money to the Applicant, and had previously attempted to sell the property without her consent. The Court found that allowing the Respondent to control the sale would likely delay enforcement of its orders and jeopardize the Applicant’s ability to recover the equalization payment and child support arrears.
Conclusion
The Court granted the Applicant’s claims for equalization, retroactive child support, reimbursement of section 7 expenses, and vested title to the matrimonial home in her for the purpose of sale. The decision reinforces that parties who fail to comply with their disclosure obligations under the Family Law Rules risk significant procedural consequences, including restrictions on the evidence they may rely upon. It also confirms that courts will readily impute income where the evidence demonstrates intentional underemployment and will fashion remedies necessary to ensure the effective enforcement of support and property orders.
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Categories: Divorce, Separation, Equalization, Imputing Income, Child Support, Section 7 Expenses, Matrimonial Home.