Court File and Parties
COURT FILE NO.: FS-23-34928 DATE: 20241206 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Matthew Bosrock Applicant – and – Susan Hutchison Respondent
Counsel: Sharon G.H. Bond, for the Applicant Shawn Richarz, for the Respondent
HEARD: December 2 – 4, 2024
REASONS FOR JUDGMENT
Justice M. Sharma
1This trial deals with two issues following an unmarried couple’s separation: (a) whether the Applicant is entitled to equitable relief of rectification to address what he says is an error in a contract the parties signed regarding his equity interest in a jointly-owned home; (b) whether the Applicant is entitled to spousal support, and if so, what quantum and duration.
Brief Background
2In 2008, the parties met while they both worked at HSBC in Vancouver. They started a relationship thereafter. Both held senior positions. The Applicant was asked to resign in or around 2011, which he says is because his employer discovered his relationship with the Respondent. The Respondent maintained her job. She says the Applicant was asked to leave HSBC because he was not candid when asked by his employer whether the parties were in a relationship.
3When the parties met, they were married and had children from those relationships. Those relationships ended in or around 2010 or 2011.
4The Applicant’s divorce was finalized in July 2011, at which point the Applicant’s former wife had primary care of their three children and they moved to New Jersey. The Applicant would visit with them on weekends. He rented various apartments in Vancouver after separation until 2012.
5The Respondent’s divorce from her ex-husband resulted in a shared parenting schedule with her former husband in Vancouver.
6After their respective marriages ended, the Applicant stated the parties began a committed, long-term relationship in Vancouver. He said this commenced in 2012. In contrast, the Respondent said that their relationship was romantic and passionate, volatile, and not serious. She stated that they were merely dating from 2009 onwards until November of 2019, when they were both living in Toronto in their jointly owned home and when the Applicant proposed marriage, which she accepted. At that point, she said things became serious.
7The Applicant moved to Toronto in 2012. He said he did so after discussing this with the Respondent and for several reasons. First, a move to Toronto would allow the Applicant to be closer to his children who now lived in New Jersey. He said he has honoured all of his parenting time with his children. Second, the Applicant had difficulty finding work in Vancouver and the Toronto market offered more potential positions. Finally, he stated the parties agreed to this move because they viewed Toronto as a better place to live together and because this is where the Respondent and her family were from. The Respondent purchased a cottage in Ontario in 2012.
8After his move to Toronto, the Applicant had difficulty securing full-time work. He was renting an apartment in Toronto but travelling regularly to Vancouver, and to New Jersey. Part of his travel to Vancouver was because of a contract he had which had him working two weeks a month in Vancouver with the Rick Hansen Foundation. It was not disputed that when he was in Vancouver, he would stay at the Respondent’s home with her children.
9In 2013, the Respondent’s job at HSBC in Vancouver ended. She denied joint discussions occurred with the Applicant to move back to Toronto. Rather, she said her intention was to remain in Vancouver. After the Applicant testified, the Respondent also testified that she also had limited job options in Vancouver. As a result, she said she began to consider job options in Toronto. She started speaking with a company in Toronto in February 2014, and received a job offer in March 2014. She then negotiated with her ex-husband and obtained a B.C. court order in June 2014 permitting her relocation with the children to Toronto.
10The Respondent agreed that returning to Toronto would allow her to be closer to her family in Ontario, but she stated that this was a decision she made for herself and for her two children, unrelated to any discussions with the Applicant.
Purchase of Toronto Home and Agreement
11The parties disagreed on the events that led up to their ultimate purchase of a home in Toronto in August 2014. However, the following facts are not disputed:
(a) On August 1, 2014, the home at 62 Mason Blvd., Toronto, ON was purchased for $3,185,000. Both parties hold title as Tenants in Common, although their percentage share interest was not defined.
(b) The Respondent paid the down payment, land transfer taxes and closing costs of $1,268,093.
(c) The lawyer who acted for the parties on closing was Mr. Kenneth Picov.
(d) There was a mortgage on the property. While no mortgage documents were in evidence, the evidence was that the mortgage was approximately $2 million and both parties were jointly liable for this mortgage.
(e) Parties agreed that the Applicant would pay 60% of the mortgage payments, and the Respondent would pay 40%.
12On July 27, 2014, the Applicant sent an email to Mr. Picov, copying the Respondent, instructing that he prepare an agreement regarding the “tenant in common” arrangement with the Respondent. His email contained the terms he asked to be included within the agreement.
13The Respondent took no issue with the content of the instruction provided to Mr. Picov. In her testimony, she characterized this email as being jointly from the parties and that it accurately reflected the parties’ agreement.
14On August 1, 2014, the parties signed the Agreement drafted by Mr. Picov. The relevant parts state:
(a) Both parties intend to protect the Respondent’s downpayment and other initial investment in the home, in the amount of $1,268,093. This amount shall be repaid to the Respondent upon any sale of the property prior to the distribution of the net proceeds between the parties (para 2);
(b) “As [the Applicant] will be paying 60% of the mortgage payment and [the Respondent] will be paying 40%, the difference in monthly payment being paid by the [Applicant] plus any differential between the lump sum payments made by [the Applicant and the Respondent] will continue until such time as the gap between their respective equity in the property is down to nil. If and when that should happen, the remaining mortgage payments will be split equally [between the Applicant and the Respondent] and the ownership of the property will be on a 50/50 basis.” (para. 3)
(c) If at any time during the ownership of the property, the parties’ relationship ends, then the Respondent “shall have the first right to buy [the Applicant’s] interest in the property at an amount equal to the payments [the Applicant] has made to date, being the monthly mortgage payments, plus any lump sum that [the Applicant] has made;” (para. 4)
(d) If [the Respondent] decides not to buy [the Applicant] out, the house will be put on the market at a price equal to the average of two appraisals, with each party obtaining their own appraisal and the equity from the sale of the house will be split reflecting the current ownership shares at the time of the sale, and after subtracting [the Respondent’s] initial investment as indicated in para (a) above, plus CPI each year on the downpayment amount paid by [the Respondent]. (also para. 4)
15The terms in the Applicant’s email of July 27, 2014 significantly mirror what ended up in the final Agreement that was executed. There was no evidence of Mr. Picov circulating a draft Agreement, requesting clarification on terms, or of comments being provided by the parties on any drafts circulated. The parties signed the first draft of this Agreement, once received. Neither party obtained independent legal advice before signing it.
16Perhaps not surprisingly, the parties disagreed on what would happen now that the parties have separated. The Respondent states the Applicant is only entitled to a return of the mortgage payments he has made, consistent with para (c) above.
17The Applicant states that the intention at the time of contract formation was that he would get an equity interest in the property, proportionate with the mortgage payments he has made up to the point of separation. He acknowledged an error, in his part, when sending instructions to Mr. Picov that this term was not correctly spelled out. He relies on the equitable remedy of rectification to obtain an equity interest in the property.
Applicant’s New Job - 2014 – 2018
18In May of 2014, a few months before the purchase of the home, the Applicant was offered a senior executive role with a global financial company, S&P Global. He had also been pursuing a position with Manulife in Toronto but was not successful in obtaining it. Had it been offered to him, the Applicant said he would have taken that job over another international posting because he wished to remain in Toronto. His evidence, which was not disputed, is that the parties were still going to purchase the home, regardless of whether he got the Manulife or S&P Global job.
19The Respondent said that because the Applicant had just landed a new job and would be earning an income, he was looking for a savings and investment vehicle. She said she had been looking for a home for just her and her children, but the Applicant encouraged her to purchase a home larger than what she needed, and that they agreed he would pay 60% of the mortgage.
20The Applicant said the parties agreed he would take this job, which was principally located in Singapore. It started in July 2014. He said he returned to Toronto frequently. He testified that he flew to Toronto every three weeks to spend time with the Respondent and to spend time with his children in New Jersey. The Respondent, in her testimony, did not dispute he would return from Singapore regularly, but she said it was more like every four to six weeks, rather than every three weeks. She also discounted the suggestion that his trips from Singapore was to principally spend time with her. She explained that she often travelled for work, or would have plans with her children, and that the Applicant would principally return to spend time with his girls in New Jersey.
21In June 2016, the Applicant was re-assigned to New York. He rented an apartment in New Jersey. He was terminated from his position in 2017, but received termination pay and he remained in New Jersey looking for work. He testified that this was because of the greater job opportunities in New York, his prior failed attempts to secure work in Toronto’s smaller market, and because of he did not have a work permit in Canada. He is a USA citizen. During his time residing in New Jersey, there was evidence of him travelling to Toronto, of the Respondent coming to New Jersey and New York, and of the parties travelling to other destinations.
22In or around October or November 2018, the Applicant moved back to Toronto and was residing with the Respondent and her children.
23The parties separated in February 2022.
Issues:
(1) Has the Applicant established he is entitled to the equitable remedy of rectification because the Agreement signed by the parties does not accurately reflect their oral agreement?
(2) On spousal support,
(a) Is the Applicant a “spouse” under s. 29 FLA with standing to obtain a spousal support order, and if so, what is the period of cohabitation?
(b) Is the Applicant is entitled to spousal support, and if so, for what quantum and duration?
Issue 1: Has the Applicant established he is entitled to an equitable remedy of rectification because the Agreement signed by the parties does not accurately reflect their oral agreement?
24The Applicant states it was a common understanding between the parties that, in the event the parties separated, and if the Respondent wished to buy out the Applicant’s interest in the home, then:
(a) The property would be appraised;
(b) From the appraised amount, the Respondent would be entitled to recoup her initial downpayment of $1.2M;
(c) From the remaining amount, the outstanding mortgage amount would be deducted to determine total equity;
(d) From the total equity, parties would calculate their proportionate equity interest or share in the property, based on the mortgage or lump sum payments made by each of them;
(e) The Applicant’s proportionate equity interest would then be paid out to him.
25The Respondent’s position is that the common intention of the parties is exactly as set out in the Agreement – namely, the Applicant would only be entitled to receive an amount equal to the mortgage payments he has made. He would not have an interest in the equity of the home.
Legal Principles
26The relief of rectification has been described by the Supreme Court of Canada in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 SCR 678 at para. 31 as follows:
Rectification is an equitable remedy whose purpose is to prevent a written document from being used as an engine of fraud or misconduct “equivalent to fraud”. The traditional rule was to permit rectification only for mutual mistake, but rectification is now available for unilateral mistake (as here), provided certain demanding preconditions are met. Insofar as they are relevant to this appeal, these preconditions can be summarized as follows. Rectification is predicated on the existence of a prior oral contract whose terms are definite and ascertainable. The plaintiff must establish that the terms agreed to orally were not written down properly. The error may be fraudulent, or it may be innocent. What is essential is that at the time of execution of the written document the defendant knew or ought to have known of the error and the plaintiff did not. Moreover, the attempt of the defendant to rely on the erroneous written document must amount to “fraud or the equivalent of fraud”. The court’s task in a rectification case is corrective, not speculative. It is to restore the parties to their original bargain, not to rectify a belatedly recognized error of judgment by one party or the other: Hart v. Boutilier (1916), 56 D.L.R. 620 (S.C.C.), at p. 630; Ship M. F. Whalen v. Pointe Anne Quarries Ltd. (1921), 63 S.C.R. 109, at pp. 126-27; Downtown King West Development Corp. v. Massey Ferguson Industries Ltd. (1996), 133 D.L.R. (4th) 550 (Ont. C.A.), at p. 558; G. H. L. Fridman, The Law of Contract in Canada (4th ed. 1999), at p. 867; S. M. Waddams, The Law of Contracts (4th ed. 1999), at para. 336. In Hart, supra, at p. 630, Duff J. (as he then was) stressed that “[t]he power of rectification must be used with great caution”. Apart from everything else, a relaxed approach to rectification as a substitute for due diligence at the time a document is signed would undermine the confidence of the commercial world in written contracts.
27In McLean v. McLean, 2013 ONCA 788, the Ontario Court of Appeal spoke of how “common intention” is to be established in rectification cases. After considering authorities and submissions as to what evidence a Court should consider, Weiler J.A. for the Court stated at para. 61:
In my view, the question that the court must answer is whether the totality of the evidence supports the conclusion on a balance of probabilities that an agreement was in place but that an error was made in recording it. This is an objective inquiry. The totality of the evidence can include the testimony of a party as to what he or she understood the terms to be. The weight of this testimonial evidence will vary depending on the documentary and other evidence available.
28I am not persuaded, on a balance of probabilities, and from the totality of evidence that there was a common intention for the Applicant to receive an equity interest in the home. Even if there was a common intention, to find the parties’ equity interest was to be determined based on the formula understood by the Applicant would go well beyond rectifying the contract; it would involve re-writing it. I reach this conclusion for the following reasons.
29First, on March 22, 2016, the Applicant wrote to Mr. Picov and later forwarded the email to the Respondent following a brief separation. In his email, the Applicant advised that his belief was that the Respondent had to pay him the difference of their mortgage payments or put the asset on the market. This does not demonstrate the Applicant had a belief he had entitlement to an equity interest.
30Second, the Respondent had no recollection of the parties ever agreeing to the Applicant being entitled to an equity interest in the home in the event of separation. Her recollection was that he would be entitled to recover only the mortgage payments he made.
31There was evidence of the Respondent in her communication with the Applicant post-separation appearing to (mis)understand that the Applicant had an equity interest and that an appraisal would be required to determine that interest. However, the Respondent explained that she had not refreshed herself with the terms of the Agreement, and therefore, she testified that she erred in her communications with the Applicant. I accept her evidence on this point as being credible.
32Third, it is the Applicant’s burden to establish that the written Agreement was not what was agreed upon orally. But the evidence was that it was him who wanted this agreement. It was the Applicant who first set out the contractual terms in an email to Mr. Picov. Those terms specifically stated that the Respondent had the right to buy the Applicant out at an amount equal to the payments he made to date – monthly mortgage plus any lump sum. As this email sent by the Applicant days before the agreement was reached was specific, I find it is the best evidence of the parties’ common intention at the time.
33Fourth, I have considered other language in the Agreement itself that suggests the Applicant would have an equity interest in the home. However, an equity interest would only arise in two situations which did not occur: (1) “If and when…” the Applicant’s 60% payments on the mortgage plus any lump sum payments resulted in the gap between the parties’ respective equity interest in the property becoming nil, only then would the property be owned on a 50/50 basis; or (2) if the parties separated and the Respondent decided not to buy out the Applicant’s interest.
34Finally, even if there was a common intention that the Applicant would have an equity interest based on his mortgage payments, it would amount to a re-writing of the contract to impose the formula proposed by the Applicant to quantify his interest. This formula is only from the Applicant’s oral testimony of what he understood their agreement to be; it was neither ascertainable nor definite from other evidence in this case: Performance Industries, at para. 61. For example, how the Applicant came to understand that the Respondent would not be entitled to a rate of return on her initial downpayment of $1.2M, and that their proportionate equity interest would be based solely on mortgage payments (or lump sum payments) each party made, was not in any other evidence. It would be sensible to assume the Respondent would be equally entitled to a rate of return on her initial downpayment.
35This case is unlike Performance Industries where the Court merely substituted one word for another based on the evidence. Here, the Applicant is seeking to introduce a whole new valuation formula that is inconsistent with his contemporaneous email to Mr. Picov who drafted the Agreement. The court will not rewrite a contract to rectify a belatedly recognized error of judgment by one or both parties. When rectification is sought, the Court’s task is merely to restore the parties to their original bargain. To read in new terms not supported by the evidence would represent “a relaxed approach to rectification as a substitute for due diligence at the time a document is signed.” Performance Industries, para. 61.
36For these reasons, I dismiss the Applicant’s claim to rectify the Agreement. Pursuant to the parties’ Agreement, I order the Respondent to pay the Applicant the total of mortgage payments he made on the jointly owned property at 62 Mason Blvd., Toronto, understood to be $494,279, less the $230,000 the Respondent has already paid to the Applicant. Upon payment of this amount, the Applicant shall cooperate in the legal transfer of his tenant in common interest in the property to the Respondent. Parties advised they agreed on the amount of mortgage payments made by the Applicant, and if the amount I have indicated is not accurate, it shall be replaced by the parties’ agreed amount.
Issue 2: Is the Applicant a “spouse” under s. 29 FLA with standing to obtain a spousal support order, and if so, what is the period of cohabitation?
37The Applicant said he is a “spouse” entitled to spousal support on a needs basis retroactive to the date of separation (February 2022). He argued the parties cohabitated from at least August 2014, although he argued cohabitation could have commenced as early as December 2012. His principal position is that parties cohabited for 7.5 years from August 2014 to February 2022.
38The Respondent submitted the parties never cohabited within the meaning of s. 29 of the FLA because they did not cohabit for three years, and therefore, the Applicant is not a “spouse”. For the most part of the relationship, they lived under different roofs. She argued it was not until November 2019 when the Applicant proposed marriage that they began to cohabit. The parties agree that they separated in February 2022. Therefore, she states they have not cohabited for 3 years as required under s. 29 of the FLA.
Legal Principles
39Section 29 of the FLA defines spouse to mean:
“spouse” means a spouse as defined in subsection 1(1), and in addition, includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years; or
(b) in a relationship of some permanence, if they are parents of a child…
40Section 1(1) of the FLA defines “cohabit” as living together in a conjugal relationship, whether within or outside of marriage.
41In M v. H. at pars. 59-60, the Supreme Court of Canada adopted and affirmed the criteria set out in Molodowich v. Penttinen for assessing whether parties are in a “conjugal relationship” under s. 29 of the FLA. Those factors include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of a couple. These elements may be in varying degrees and not all are necessary for the relationship to be found to be conjugal.
42In assessing whether parties “lived together”, Karakatsanis J. (as she then was) stated in [Campbell v. Szoke, 2003) stated at para. 52:
The fact that the parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one's children: Thauevette v. Maylon (1996), 23 R.F.L. (4th) 217 at 222 (Ont. Gen. Div.). Continuous daily cohabitation is not a necessity for a finding under section 29 of the Family Law Act. A couple who lived together only on weekends was found to be cohabiting in Hazelwood v. Kent, [2000] O.J. No. 5263 at 8 (Ont. S.C.J.). Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important. Where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found: McEachern v. Fry Estate, [1993] O.J. no. 1731 at para. 21 (Ont. Gen. Div.).
43Shore J., in Climans v. Latner, 2019 ONSC 1311, provides a helpful review of relevant caselaw. At para 128, she stated:
What is clear from a review of the case law is that each case is fact-specific. To determine whether the parties lived together in a conjugal relationship, all the factors must be considered in conjunction with one another. However, there needs to be some element of living together under the same roof. The very definition of "cohabit" requires that the parties live together in a conjugal relationship.
44For the reasons that follow, I find that the parties cohabited from August 2014 through to February 2022.
Credibility of the Parties
45I provide brief comments on the credibility of the parties because it is relevant to the parties’ intention to cohabit.
46Only the parties testified at trial. Each party’s evidence in chief and in cross-examination was less than a day. They agreed in large part on many of the pivotal facts around their relationship. Where they differed is how they characterized those facts.
47I had more difficulty accepting the Respondent’s evidence than the Applicant’s evidence with respect to the nature of the parties’ relationship.
48The Respondent regularly described the parties’ relationship as being “intermittent”, “on-again, off-again”, “pretty casual” and “lacking permanence”. She spoke of her decisions on where to live as being for herself and for her children, without any reference to the Applicant or her relationship with him. This was despite significant photographic evidence of their relationship. At times, she was evasive in answering some questions rather than simply making basic admissions that were obvious.
49In these areas, as I explain, her answers were inconsistent with the facts on how the parties interacted, documentary evidence, and other admissions she made.
Factors
50I find the Applicant’s moves to Toronto, Singapore and then New Jersey were for work reasons and the fact that the parties did not share the same roof each night, is not conclusive. Rather, what is relevant is whether there was a subjective intent to maintain a relationship, that the parties objectively portrayed that they were a couple, and that they lived together at certain points under the same roof. There is such evidence in this case. I consider various factors listed in M. v. H. as well as others in this case.
51The parties had a conjugal relationship. The parties met in 2008 and by the Respondent’s admission, they had a romantic relationship. After the parties’ marriages ended in or around 2011, and the Applicant moved to Toronto in 2012, it is not disputed that the parties’ relationship continued.
52It was not disputed that the Applicant left Vancouver in 2012 for work and to be closer with his children who were in New Jersey. The Respondent agreed there were limited job options for her in Vancouver when her job was terminated in 2013. Therefore, it is more probable that the Applicant’s move to Toronto was driven by his efforts to find work and to parent his children.
53The Applicant’s move to Toronto was not because he was terminating or ending his relationship with the Respondent. There was no evidence of their relationship having ended between 2012 and 2014. In fact, there was photographic evidence of their relationship continuing from 2012 onwards.
54While he was in Toronto, the parties continued to regularly cohabit in Vancouver at the Respondent’s home. From December 2012 until the Respondent moved to Toronto in 2014, the Applicant would travel to Vancouver for two weeks per month on a work contract with the Rick Hansen Foundation. The Respondent admitted he would stay with her and her children in Vancouver on these regular trips to Vancouver.
55The Applicant said his decision to move to Toronto was discussed and made jointly with the Respondent and they had a mutual plan to move to Toronto. The Respondent disputed this fact. She was tied to Vancouver because of her job and the joint parenting arrangement with her ex-husband. It is not necessary for me to make this finding of fact. It is enough that their relationship did not terminate and that it continued while living in different cities.
56There was evidence of them objectively portraying themselves as a couple and a blended family.
57There was significant photographic evidence that the parties regularly spent time as a blended family, with both parties’ five children and often with the parties’ extended family. The locations where the parties travelled as a couple or with their children or extended family members included Muskoka; Whistler; Vancouver; New York City; Ellicottville; Florida; Singapore; Bali; Indonesia; Toronto; Minnesota; Aruba; Mt. Tremblant; Amsterdam; Colorado; Ohio; Niagara Falls; Switzerland; Hong Kong; Vermont; Dubai; Washington DC; Greece; and Dublin. The Respondent was taken to these photos and while she could not recount the precise dates, for the most part, she did not dispute that the photos represented the various trips the parties had taken either alone, with their children, or with extended family members.
58It would have been preferable if these photos were introduced by the Applicant in his evidence in chief. The photos were part of an email the Applicant purportedly sent to his counsel, with text underneath each describing where the photo was taken and the date it was taken. While the Respondent could not confirm the dates of the various photos, on a balance of probabilities and having considered how the children grew in subsequent photos, I am persuaded the photos represent events that occurred from 2012 to 2017. The location of the photos corresponded with other evidence received. Even if the dates are not entirely accurate, they demonstrate the parties’ spent time together, with their respective children, and with the parties’ extended families at multiple locations.
59The Respondent sought to discount these photos as representing “holiday time” and not “day-to-day life”. Therefore, she argued it is not evidence of regular “cohabitation” as between normal spouses. But the reality for most couples and families is that these photos are most often taken when families are vacationing together, and the reason why they are vacationing together is because they are a family. Many of the photos were not just trips, but also milestones in the lives of family members, such as family birthdays and graduations. Furthermore, it is not disputed that the Applicant did spend some “day-to-day” living with the Respondent when he returned to Toronto and stayed at their jointly owned home.
60The photographic evidence contained two years of family Christmas cards (2015, 2017) which the Respondent did not dispute as being authentic. The Christmas cards had photos of the parties with their combined five children, and they included the names of the parties and all five children. These cards strongly suggest that not only privately, but also publicly, the parties were holding themselves out as a couple, and they were doing so with their children as a blended family.
61The Respondent’s testimony also sought to discount the existence of a relationship among the parties’ five children, but some of her evidence suggested otherwise. For example, the Respondent bought a cottage in 2012 where she had a boat. The Respondent’s evidence was that her daughter named it, MAJIC, reflecting the initials of all five children. The Respondent also admitted that post-separation, she took her daughter to Paris to meet with the Applicant’s daughter. On cross-examination, the Respondent also read into evidence cards her children had written to the Applicant on Father’s Day. These are all indicia of a blended family relationship arising from a spousal relationship.
62There was evidence of the Respondent having a subjective intent of being in a conjugal relationship with the Applicant. There were several of birthday cards in evidence, signed by the Respondent and her children to the Applicant. The dates on which these cards were sent was not in evidence, but at least one references the Applicant’s 48th birthday, which would have been on March 16, 2015. In one of them, the Respondent referred to the Applicant as “Husband”. These cards do not suggest a temporary, intermittent relationship, as suggested by the Respondent in her evidence.
63The Respondent tried to discount the fact that she introduced the Applicant to her family in Toronto, suggesting she would have done the same for anyone new to Toronto. I find this answer self-serving and inconsistent with the evidence. The Respondent admitted that the Applicant went on a trip with her father to Scotland, that he spent time with her family in Toronto, and that he attended her nephew’s hockey games. Her son’s Father’s Day card to the Applicant thanked the Applicant for taking him to early morning hockey games. This sort of engagement in the lives of extended family members is more representative of behaviour one would expect of a spouse.
64The cards the Respondent sent to the Applicant, the years during which she travelled with her children with the Applicant and his children, the Christmas cards, the joint family events in which they participated strongly suggest a subjective intent on the part of the Respondent to be in a committed relationship with the Applicant.
65I reject the argument that because the parties were not living under the same roof, they were not cohabiting in a conjugal relationship.
66The Applicant’s career involved international work in the financial industry for decades. The Respondent was aware of this, and it was simply a unique fact of their relationship that they worked around. The Respondent agreed that employment prospects in Vancouver in the financial industry were limited, and therefore, it is not surprising the Applicant had to leave in 2012 to find work. He returned to Vancouver, every two weeks.
67After the Applicant moved to Toronto, he had difficulty finding full-time work. By 2014, his only job prospect was with S&P Global, which required him to live in Singapore from 2014 to 2016, and then in New Jersey from 2016 to 2017.
68The Respondent was unwilling to admit that she agreed or was in any way supportive of the Applicant’s decision to accept the job with S&P Global. While I agree with her statement that this job was his only option, I found her resistance to answer whether she agreed with the decision, participated in the decision, or supported him in making this decision is at odds with the evidence which demonstrated they were a couple.
69There was evidence of the parties having discussed marriage several times. The Respondent acknowledged this, saying it was the Applicant who wanted marriage more than her; she had been married twice before. However, this does not discount the fact that there had been talk of marriage. In November 2019, the Applicant did propose marriage, and the Respondent accepted. Their wedding planned for May 2020 did not occur due to the Covid pandemic.
70There was no evidence that the parties were in intimate relationships with others.
71I reject a finding that the Applicant was merely a “boyfriend” or “travel companion.” If this were the case, then (a) the Applicant would not have spent significant time with the Respondent’s children and her extended family on trips; (b) the Respondent’s children would not have written him Father’s Day cards or signed his birthday cards; (c) the Applicant would not have regularly stayed with the Respondent and her children when he travelled to Vancouver, or when he returned to Toronto from Singapore or New Jersey; and (d) the parties would not have purchased a property with both being on title and would not have jointly signed a mortgage valued at $2 million.
72The evidence, taken as a whole, demonstrates that the parties were in a committed relationship. I find they cohabited commencing August 2014.
73While there was a period prior to August 2014, and possibly as early as December 2012, when the parties appear to have cohabited regularly, I would not find it was the commencement of their cohabitation. This is because their relationship was still relatively new, the parties had just completed their respective divorces, and the Respondent’s ability to leave Vancouver was dependent on her settling with her ex-husband a relocation with her children.
74What provides evidence of subjective intent is the Respondent’s move to Toronto with her children, the parties’ joint investment in the home in August 2014, and their contractual commitment to both be responsible for this joint investment. The Respondent did not provide a satisfactory explanation as to why she would agree to have the Applicant on title for this property, even though he made no down payment to the property. She seemed to suggest that he induced her into this arrangement, and she was merely helping him because he wanted somewhere to place his savings (by paying the mortgage). This answer lacks credulity, and again, suggests a self-serving attempt to minimize the extent of the parties’ relationship.
75They maintained most other aspects of their finances separate, although there was evidence of the Applicant regularly paying for certain Bell and hydro expenses at the Respondent’s cottage, which she solely owned.
76The parties acted as most couples would, when one spouse must live in another city for work reasons. From 2014 to 2018, the Applicant returned from Singapore approximately once a month to spend time with the Respondent and with his own children in New Jersey, and that he would stay with the Applicant in their jointly owned home when he returned to Toronto. Subject to some brief instances where the parties argued and separated briefly, their relationship continued.
77In 2017, the Applicant landed in Hong Kong en route to Singapore. He learned from the Respondent that she required emergency medical care. He immediately flew back to Toronto on the next available flight and drove the Respondent to a private medical clinic in Cleveland, Ohio where she was treated. He had placed the Respondent on his private medical insurance coverage in the USA. None of these facts were disputed. This is not typical of what a “boyfriend” in an uncommitted relationship would do.
78Between 2014 and 2018, the parties regularly vacationed together, took care of each other, and celebrated key milestones in their lives together with their extended families and their children.
79In 2018, the Respondent moved back to Toronto and gave up a lease on his New Jersey apartment. This was because his position with S&P Global ended in 2017, and he was searching for work in New York and elsewhere in the USA. I do not view this as indicative of his lack of commitment to the parties’ relationship. From 2017 to 2018, he continued to return to Toronto and the Respondent also came to New Jersey, sometimes with her children. The Applicant had attempted and exhausted his efforts to find work in Toronto for two years between 2012 and 2014. He had worked in New York, and internationally throughout his career. Therefore, it is not surprising that he maintained the New Jersey apartment from 2017 to 2018 to support his efforts to find work in the USA.
80The Applicant returned to Toronto in the fall of 2018 and resumed living full-time with the Respondent. In November 2019, he proposed to her and she accepted.
81Having considered all of the above factors, I find that the parties were living together in a conjugal relationship from August 2014 to February 2022.
Issue 3: Is the Applicant is entitled to spousal support, and if so, for what quantum and duration?
Entitlement
82The parties agree that the Applicant does not have entitlement to support on a compensatory basis. If he has entitlement, it is strictly on a non-compensatory or needs basis.
83Non-compensatory support is based on the financial need of a spouse, post separation. It recognizes that when spouses separate, it is artificial to assume that “all separating couples can move cleanly from the mutual support status of marriage to the absolute independence of single life”: Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 31. Non-compensatory support “places the burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state”: Bracklow, at para. 31.
84This is consistent with the statutory purpose for spousal support n s. 33(8)(d) of the FLA, namely, to relieve financial hardship.
85I find that the Applicant is entitled to non-compensatory support, based on the difference between the needs and means of the parties. The circumstances of the breakdown of their relationship resulted in economic dependency. According to the Respondent, the Applicant lived “rent free” in their jointly owned home because, under the Agreement, he was entitled to recoup all he had paid in mortgages as a form of “savings”. Without that “rent-free” home to live in, and without a job, his only means of putting roof over his head is to spend his capital.
86In contrast, the Respondent has solely enjoyed the growth in value of the home that the parties jointly owned. It had a value of $3.1M at the time of purchase. The Applicant contributed approximately $500,000 towards mortgage payments, and the Respondent contributed slightly more, valued at approximately $550,000. There was an appraisal report done on the property, which was part of the Applicant’s Documentary Evidence brief. While the expert who prepared the report was not called as a witness, there was no opposing appraisal report. It concludes the value of the property as of March 2022 to be $5.8M. Even if I were not to consider the appraisal report, the Respondent’s Financial Statement places a value on the home at $5.5M which confirms that the property’s value grew significantly during the relationship. The Respondent solely enjoyed the significant growth in value of this property during the parties’ relationship, despite the roughly equal contributions during the relationship towards its growth in value.
87A purpose of a spousal support order is to recognize a spouse’s contribution to the relationship and the economic consequences of the relationship for the spouses: s. 33(8)(a) FLA.
88During the parties’ relationship, the Applicant’s had periods when he was earning an income but he was not generating an income throughout. Notwithstanding the absence of a steady income, from 2014 through to May 2021, he lived up to his contractual agreement to pay his 60% share of the mortgage. He had received a pension from HSBC, and upon his termination, half was paid to his ex-wife, and he used the remaining amounts to pay his child and spousal support obligations and to pay for the mortgage when he had no income.
89After considering the parties needs and means, I find the Applicant is entitled to support on a non-compensatory basis.
90The Applicant was dependent on the Respondent for a home. The Applicant has need for support. His Financial Statement, sworn October 31, 2024, on which he was not cross-examined, showed he has current debts of $789,000 (after deducting mortgage on the jointly owned property), $172,000 in savings which primarily comprised a retirement savings account, and no real assets other than a car valued at $12,000. He has no income. There is a prospect of him earning an income from his involvement in various start-up businesses in which he has been involved, but it is purely speculative of what his income might be.
91I am satisfied, based on the evidence, that he has exerted significant efforts to find work. The Respondent did not seriously dispute his job search efforts. Even she attempted to assist him. While it is possible that he has unduly restricted his employment searches to senior executive positions of CEO or COO, it is unrealistic to assume that he could earn an income that would approach the standard of living that the parties enjoyed during their relationship if he were to search for a less senior position. The parties lived well during their relationship, which included multiple trips each year to various locations around the world.
92In contrast, the Respondent’s Financial Statement, sworn November 22, 2024, shows that in 2023, she had an annual income of $1.93M. It was accepted by the Applicant that a significant portion of this income represented one-time earnings in 2023 which are unlikely to be repeated. Her income in 2022 was $923,000 and her 2021 income was $601,000. It is expected her 2024 income will be $964,000.
93In terms of her assets and liabilities, the Respondent owns her cottage and will solely own the jointly owned home at 62 Mason Blvd. Together, the properties are valued at $6.2M. She holds $2.48M in accounts and savings, of which approximately $1M is held in registered savings plans. She identifies a debt of $1M on 62 Mason Blvd. These figures demonstrate that she has capacity to pay a spousal support order.
Income for Support Purposes
94I am satisfied that the Applicant is unable to secure employment as a senior executive in the financial services industry. The Applicant adduced some evidence, which was hearsay, that those in the financial sector are aware that he was terminated from HSBC and that his age (57) are factors that prevent him from securing the type of senior executive position he hopes to obtain. I do not accept this hearsay evidence. However, I accept the Respondent’s evidence that the Applicant had difficulty obtaining these senior positions. I also accept her argument that the Applicant could likely obtain employment as a bank manager, where his likely income would be greater than minimum wage.
95The Respondent seeks to impute an income to the Applicant of $70,000. For this Court to impute an income to the Applicant, there must be an evidentiary basis to do so: Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.). There was none adduced at trial. Therefore, I accept the position advanced by the Applicant that he could earn an income of $50,000 and find so.
96In terms of the Respondent’s income, the Applicant has accepted that she earned one-time income in 2023 and that her 2023 income should not be used to determine her support obligation. I find that the Respondent’s 2022 income of $923,000 is appropriate income to use when determining her support obligation. Her estimated 2024 income was not markedly dissimilar.
97The Respondent argued that under the Spousal Support Advisory Guidelines, when a payor’s income is $350,000 or more, the guideline amount of support may not be apply. She further argued that because there is no compensatory component, it would not be appropriate to base her support on an income higher than $350,000.
98The Respondent’s counsel prepared DivorceMate calculations using the presumptive ceiling of $350,000 and the Respondent’s 2022 income of $923,000, imputed an income to the Applicant of $70,000 (I have found it should be $50,000), and used 7.5 years of cohabitation (as I have found). This results in the following range of support for a duration of 3.75 years to 7.5 years:
| Respondent’s Income | Low | Mid | High |
|---|---|---|---|
| $350,000 | $2,625 | $3,062 | $3,500 |
| $923,000 | $7,997 | $9,330 | $10,662 |
99I have considered the Applicant’s budget as set out in his Financial Statement. It shows he has annual expenses of $202,280. I have reviewed his budget. There are some items that are extraordinary, including $7,250 in monthly costs for education, presumably to support his children. The Respondent does not have an obligation to support the Applicant’s children. Therefore, I have reduced his budget by $87,000 resulting in annual expenses of $115,280.
100I note however that this budget does not include expenses for travel and vacations which this couple enjoyed regularly. It also includes modest housing costs of $3,480, which would be a marked departure from the home in which the parties lived.
101The attached DivorceMate calculations using the Applicant’s income of $50,000 and the Respondent’s Income of $923,000 results in the following range of support and net disposable income under the SSAGs:
| Low | Mid | High | |
|---|---|---|---|
| Support | $8,184 | $9,548 | $10,912 |
| NDI for Respondent | $422,820 | $415,214 | $407,607 |
| NDI for Applicant | $103,958 | $113,000 | $121,766 |
102These amounts, even at the high end, result in net disposable income for the Applicant that would not meet his current budget. It would also not meet his budget were I to reduce it to account for education costs, and then increase it such that it was not a significant decline departure from the standard that they enjoyed while a couple.
103The Respondent’s Financial Statement shows annual expenses of $407,580. Therefore, even under the high range of support, the Respondent will be able to meet her budget. She will certainly be able to do so if she receives increases in wage or further one-time income payments.
104The Respondent alleged there was abuse during the relationship. This included the Applicant throwing items at the Respondent in fits of anger, including an electric toothbrush and a medicine ball. The Applicant disputed these allegations. In fact, the evidence was that the Applicant called the police after an alleged incident. The Respondent also alleged that the Applicant suffered from alcohol addiction, for which he was treated but then relapsed. Again, the Applicant disputed these allegations. Given my credibility findings with respect to the Respondent, I am not inclined to accept these allegations on a balance of probabilities.
105Even if I were to find these allegations true, I would not find they rise to a course of conduct as to constitute an obvious and gross repudiation of the parties’ relationship: s. 33(11) FLA. The evidence was unclear when these events occurred. The parties were engaged in November 2019 which suggests they did not represent a repudiation of their relationship by then. I do not have evidence to suggest the alleged abuse occurred after their wedding was planned. Accordingly, I would not deny or alter the spousal support order based on these allegations.
106Because there is no compensatory component to the Applicant’s entitlement to spousal support, I order spousal support for a period of 5 years and 6 months, commencing March 1, 2022, rather than the full 7.5 years.
107For these reasons, I order the Respondent to pay the Applicant monthly spousal support in the amount of $10,912 commencing March 1, 2022 which will be taxable income to the Applicant and tax deductible to the Respondent for a period of 66 months.
108A support deduction order shall issue.
109Monthly spousal support shall be enforced by the Director of the Family Responsibility Office, unless it is withdrawn.
Costs
110Parties shall deliver written cost submissions not exceeding 3 pages, double-spaced. Parties shall attach any Offers to Settle, along with any relevant documents. The Applicant shall deliver his cost submissions by December 20, 2024, and the Respondent shall deliver hers by January 17, 2025. Reply submissions, if any, shall be delivered by January 31, 2025.
Attach: DivorceMate calculations
Justice M. Sharma
Released: December 6, 2024