DATE: 20061222

DOCKET: C45517

COURT OF APPEAL FOR ONTARIO

RE:

KELLIE WARREN (Applicant/Respondent in Appeal) v. DAVID GILBERT (Respondent/Appellant)

BEFORE:

O’CONNOR A.C.J.O., SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Gary S. Joseph for the appellant

Paula F. Armstrong and Nicole Y. Lawson for the respondent

HEARD & RELEASED ORALLY:

December 18, 2006

On appeal from the judgment of Justice B. MacDougall of the Superior Court of Justice dated May 19, 2006.

E N D O R S E M E N T

[1] In our view, it was open to the trial judge to conclude that the respondent was entitled to a fifty percent interest in the farm property on the basis of both a purchase money resulting trust and a common intention resulting trust.

[2] The respondent and appellant each contributed fifty percent of the down payment. Although the appellant also increased his bank overdraft by $3,700 in order to pay the closing costs, we see no error in the trial judge declining to reduce the respondent’s interest in the property below fifty percent for that reason. Subsequent to closing, both parties contributed to the improvement and maintenance of the farm property and they operated it as a joint venture.

[3] The appellant’s main argument is that the trial judge erred in not refusing the respondent the equitable relief sought because he alleges she came to court with unclean hands.

[4] In the circumstances of this case, the trial judge was entitled to take the view that the alleged improper conduct was not so “immediately and necessarily related to the claim” that he should exercise his discretion against granting the relief sought by the respondent. The effect of the trial judge’s reasons is that it would be unfair, he used the word “improper”, to deny the respondent relief based on the conduct alleged. We see no reason to interfere with this exercise of discretion.

[5] As to child support, we conclude that the trial judge erred in two ways. First, he erred in ordering a lump sum payment without evidence that would allow him to make a proper calculation of the amount owing in accordance with the Child Support Guidelines. In this respect, he erred in basing the amount of child support on the assumption that the child would remain entitled to such support until age twenty-five. He also erred by including expenses to be proportionately shared under s. 7 of the Guidelines, such as post-secondary expenses. Both of these calculations were made without evidence about the likelihood that the child would continue in school after age eighteen and without allowing for contingencies.

[6] The trial judge calculated the child support obligation to be $345 a month based on an imputed income of $40,000 per year to the appellant.

[7] In the result, we order that there be ongoing periodic child support in accordance with the Guidelines in the amount of $345 a month commencing on January 1, 2007.

[8] In addition, pursuant to s. 12 of the Guidelines, we order that the appellant pay into court or to the Family Responsibility Office, as appropriate, the amount of $40,000 (the “Security Funds”) to pay and secure his ongoing child support obligations. The Security Funds are to be paid from the appellant’s share of the farm sale proceeds and the appellant may deduct from the Security Funds a credit for payments made in excess of $345 a month from the time of trial until the present.

[9] Further, after either the court, or the Family Responsibility Office, receives the Security Funds, it shall pay to the respondent the amount of child support provided by this order or such other amount of child support as may be determined by a court from time to time.

[10] We also direct that the court, or the Family Responsibility Office, pay to the appellant any remaining balance of the Security Funds upon termination of the child support payments.

[11] The appellant did not pursue his ground of appeal relating to the restraining order.

[12] The appeal is allowed in part in accordance with these reasons. Costs to the respondent are fixed in the amount of $14,000, inclusive of GST and disbursements.

“D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“R.G. Juriansz J.A.”