BACKGROUND

The parties began cohabitating in 1994 and married in 2005. They separated in 2018. The parties have 2 children, who are both over the age of majority.

Post-separation, the Respondent has been living in Indonesia.

The Applicant brought her Application in 2021. The Respondent did not participate in the legal proceedings or file any materials in any of the subsequent proceedings. Thus, the Respondent was held in default in February 2023. The Respondent finally filed a Financial Statement in December 2023, but did not attach any income tax returns.

ISSUES

1. Is the Respondent entitled to participate in this uncontested trial?
2. Is there sufficient evidence before the court to order spousal support on a final basis? If so, what should be the quantum?
3. Is there sufficient evidence to make an order for equalization?
4. Is there sufficient evidence before the court to order the sale of the matrimonial home, or transfer Mr. Mitchell’s interest to Mrs. Mitchell?

ANALYSIS

1. Is the Respondent entitled to participate in this uncontested trial?

The Respondent did not participate in any of the required steps in a family law proceeding, so he was noted in default in February 2023. The default judgement stated, among other things, that the Respondent is not entitled to participate in this proceeding in any way, pursuant to Rules 1(7) and 1(8.4) of the Family Law Rules.

The Respondent had over 13 months to set aside the default judgment, but the Respondent failed to do so. Thus, the Respondent has no standing to participate in the trial.

2. Is there sufficient evidence before the court to order spousal support on a final basis? If so, what should be the quantum?

Throughout their relationship, the Respondent earned money for the family and the Applicant was a homemaker. The Applicant was unemployed and stayed home to raise the children. The Applicant has no post-secondary education or training.

Post-separation, the Applicant earned $50,000 in 2022. The Respondent provided the court with no income tax returns from 2018-2023. However, the Applicant found some of the Respondent’s income tax returns and submitted that prior to separation, the Respondent earned $278,259.22. Further, while the Respondent’s notice of assessments for the years 2018-2021 showed no income information, it included the amount of taxes the Respondent owed, which was very high. This allowed the Court to draw an inference that the Respondent earned a very high income during those years.

The Respondent claimed that he is no longer employed due to a debilitating injury and is currently only receiving CPP. The Applicant is experiencing financial difficulty.

The Court determined that the Applicant is entitled to both compensatory and non-compensatory spousal support. Further, the spousal support award should be on the high end of the Spousal Support Advisory Guidelines due to the parties’ 24 years of cohabitation, the income of the spouses, the Applicant’s age (almost 55), and the severe financial hardship the Applicant has experienced as a result of the breakdown of the marriage.

In terms of quantum, the court used the Applicant’s 2022 income of $50,095 and the Respondent’s income of $278,259 to determine that the Applicant was entitled to $9,127 per month in on-going spousal support. The court also ruled that the Respondent owed the Applicant at least $362,016 of spousal support arrears.

3. Is there sufficient evidence to make an order for equalization?

The matrimonial home was appraised at $295,000 in August 2023. At the date of separation, the matrimonial home had an outstanding mortgage of approximately $26,000 and a line of credit secured against it in the amount of approximately $46,600. The matrimonial home requires repairs, which would cost approximately $8,000.

The Applicant has been residing in the jointly-held matrimonial home. However, with the Respondent still on title, the Applicant has been unable to borrow against the home or sell same to improve her financial situation. Further, even without spousal support, the Applicant continued to pay the mortgage, property insurance, utilities and other expenses. This eventually led the Applicant to file a consumer proposal for $144,184 of debt.

The Applicant’s Net Family Property is about $200,000, less the consumer proposal debt she had to pay. The Respondent provided no information except that he has 2 pensions, one of which was worth $143,211 at the date of separation. The value of the second pension is unknown. The Respondent claimed to have no assets or savings.

The Court did not believe the Respondent’s claims regarding his financial situation, due to his high income pattern, the low cost of living in Indonesia, and the fact that the Applicant had been carrying the parties’ debts. Thus, the Court determined that the Respondent must be hiding assets, either abroad or in Canada.

With the disclosure on hand, the Court ruled that the Applicant is entitled to at least half of the Respondent’s pensions, and that the Respondent owes the Applicant half of the debt that she has been paying.

4. Is there sufficient evidence before the court to order the sale of the matrimonial home, or transfer Mr. Mitchell’s interest to Mrs. Mitchell?

Due to the evidence above, the Court ruled that the Applicant is entitled to the Respondent’s interest in the matrimonial home.

The Respondent owes the Applicant about $362,000 in spousal support arrears, and the Respondent’s interest in the matrimonial home is worth approximately $110,000. Thus, the Court determined that the Respondent’s interest in the matrimonial home can at least consist of a partial payment on his debt to the Applicant pursuant to section 34(1) of the Family Law Act.

CONCLUSION

The Respondent owes the Applicant ongoing and retroactive spousal support, the Applicant is entitled to least half of the Respondent’s pensions, the Respondent owes the Applicant half of the joint debt she paid, and the Respondent is to transfer his interest in the matrimonial home to the Applicant for the value of $110,000.

The Court further ruled that the Applicant is entitled to half of the value of the Respondent’s investments, securities and bank accounts on the date of separation, less any justified marital debt he may have paid since separation.