Court of Appeal for Ontario
Date: 20210602 Docket: C68396
Strathy C.J.O., Brown and Miller JJ.A.
BETWEEN
Kelly Sue Lesko Applicant (Respondent)
and
David Joseph Lesko Respondent (Appellant)
Counsel: Gary S. Joseph and Stephen P. Kirby, for the appellant Peter M. Callahan, for the respondent
Heard: February 12, 2021 by video conference
On appeal from the orders of Justice Michael R. Gibson of the Superior Court of Justice, dated May 19, 2020, June 25, 2020, and August 7, 2020.
BROWN J.A.:
I. Overview
[1] The appellant, David Joseph Lesko (“David”), and the respondent, Kelly Sue Lesko (“Kelly”), started to live together in September 1998 and married on August 23, 2003. They have two children. They legally separated on December 31, 2014 but continued to live together thereafter as a family until the matrimonial home at Valleyview Court in Oakville was sold in November 2015.
[2] By the time of the trial, the parties had settled many issues. The remaining issues were adjudicated by the trial judge, which resulted in his Divorce Order dated May 19, 2020 (the “Order”).
[3] David appeals three parts of that Order: [1] (i) awarding an equalization payment to Kelly. That award resulted from the trial judge’s finding that based on her unjust enrichment claim Kelly had a 50% interest in a property on Taplow Crescent, Oakville that David had acquired prior to the date of marriage. That finding permitted Kelly to deduct 50% of the marriage date value of that property in her net family property calculation; (ii) fixing David’s income at $208,000.00 for purposes of support calculations; and (iii) disallowing David’s claim of a credit against retroactive support obligations of approximately $48,000 in expenses that David contends he incurred between the date of legal separation and the sale of the matrimonial home.
[4] For the reasons set out below, I am not persuaded that the trial judge erred in his conclusions and I would dismiss David’s appeal. For ease of reference, I propose to deal with the relevant facts under each of the issues on appeal.
II. Standard of Review
[5] Orders resolving financial disputes in family law cases are entitled to significant deference. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.
III. First Issue: The Treatment of the Taplow Property
Background facts
[6] In June 1998, David purchased Taplow – a “fixer upper” property – through power of sale proceedings for $164,000. David financed the purchase through a $41,000 down payment and a $123,000 mortgage. By the time of purchase, Kelly and David had been dating for over a year. They decided to move in together once Taplow had been made habitable, which was accomplished by September 1998.
[7] Kelly did not contribute financially to the purchase of Taplow nor was her name put on title. However, starting in August 1998 she contributed $500 a month to cover the couple’s expenses, which included a monthly mortgage payment of $831.35. Those contributions continued until a few months before their first child was born in 2004.
[8] Taplow was gutted from top to bottom, and extensive renovations were made to the property between 1998 and the property’s sale in 2007, about four years after Kelly and David married. Since David and Kelly both worked full time, the renovations were done during evenings and on weekends. David completed most of the physical renovations, while Kelly took charge of housekeeping and home maintenance.
[9] When Taplow was sold in 2007, David and Kelly put the full sale proceeds into their new Valleyview Court house, another “fixer upper” in need of renovation. As with Taplow, they renovated their new house with a view to reselling it for a profit and investing the sale proceeds into yet another new property. Their separation occurred before they could fulfill this plan.
[10] In her Application, Kelly requested a declaration that she had a 50% beneficial interest in Taplow at the date of marriage on the basis of constructive trust as she had contributed to the acquisition, preservation, maintenance, and improvement of the property in both money and money’s worth. The trial judge awarded Kelly a half-interest in Taplow on the date of marriage.
David’s position on appeal
[11] David submits the trial judge erred in awarding Kelly an interest in Taplow as there was no unjust enrichment in this case. The trial judge never considered or applied the elements of unjust enrichment in his reasons and, without this clear finding, it was inappropriate to consider whether there was a joint family venture. Moreover, if the trial judge had properly considered the test for unjust enrichment, he should have concluded that Kelly’s claim failed because she was simply in a tenant-landlord type of relationship with David prior to their marriage. During that time, she provided her labour without any expectation of compensation.
[12] Further, there was no joint family venture in respect of Taplow. The factors outlined in Kerr v. Baranow, [2011] 1 S.C.R. 269, do not support the trial judge’s finding. Even if there was a joint family venture, Kelly’s contributions did not entitle her to a half interest in Taplow.
[13] Finally, the trial judge erred when he failed to consider whether the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) equalization scheme remedied any unjust enrichment arising from the relationship.
Governing legal principles
[14] If a party establishes the three elements of a claim for unjust enrichment – enrichment, corresponding deprivation, and lack of juristic reason – the remedy can take one of two forms: a personal (or monetary) award or a proprietary award: Kerr, at paras. 46, 55; Moore v. Sweet, [2018] 3 S.C.R. 303, at para. 89. The framework in which a court should assess the appropriate remedy was summarized by this court in Martin v. Sansome, 2014 ONCA 14, at para. 52:
In this way, the framework established in Kerr requires the court to ask the following questions:
Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out?;
If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;
If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,
If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?
[15] A monetary award is the default remedy and should suffice in most cases to remedy the unjust enrichment: Kerr, at para. 47; Moore, at para. 89. In Kerr, the Supreme Court of Canada clarified that monetary awards for unjust enrichment could be quantified in two ways. First, a monetary award may be calculated on a quantum meruit or “fee-for-service” basis – the value of the claimant’s uncompensated services. Second, a monetary award may be calculated on a “value survived” basis, by reference to the overall increase in the couple’s wealth during the relationship: Kerr, at paras. 49 and 55.
[16] The concept of joint family venture helps courts to quantify the monetary remedy where a claim of unjust enrichment has been made out. Where the evidence shows that the domestic arrangements under which the unmarried parties have lived amounted to a joint family venture, monetary damages should be calculated on the value survived basis, namely on the basis of a share of the wealth generated in the joint family venture proportionate to the claimant’s contributions: Kerr, at para. 102. If there was no joint family venture, monetary damages calculated on a quantum meruit basis are likely appropriate.
[17] The proprietary remedy of constructive trust in a property requires a claimant to show two things: that monetary damages are inappropriate or insufficient to remedy the unjust enrichment; and the claimant’s contribution was linked to the acquisition, preservation, maintenance, or improvement of the disputed property. The required link has been variously described as demonstrating a “sufficiently substantial and direct” link, a “causal connection”, a “nexus” or a “clear proprietary relationship”: Kerr, at paras. 50-51, 78; Moore, at para. 91. The extent of the constructive trust interest should be proportionate to the claimant’s contributions: Kerr, at para. 53; Moore, at para. 91.
Analysis
[18] I find no reversible error in the trial judge’s conclusion that Kelly established a claim for unjust enrichment which entitled her to deduct 50% of the marriage-date value of Taplow for purposes of the net family property calculation under the FLA.
[19] Although the trial judge’s reasons on this issue are terse and would have benefited from further elaboration and explanation, they disclose that he made the following findings:
(i) The evidence “clearly” demonstrated that the parties jointly planned to purchase the Taplow property, renovate it, and sell it for profit: at para. 53;
(ii) Kelly contributed extensively to the acquisition, preservation, maintenance and improvement of the property in both money and other contributions: at para. 55;
(iii) David would be unjustly enriched if he were to receive the benefit of Kelly’s efforts without recognition of them: at para. 56;
(iv) A clear connection existed between Kelly’s contributions and the property sufficient to impose a constructive trust in her favour: at para. 56; and
(v) The parties owned the property equally on the date of their marriage, with the result that each could deduct 50% of the net value of the property on that date for the purposes of calculating their net family property: at para. 57.
[20] Ample evidence supported findings (i) and (ii): in the months leading up to their co-habitation, Kelly helped David select a property that was a “fixer-upper”; following its purchase, Taplow was gutted; they moved in several months after the initial renovations made it habitable; the full renovation of the property consumed the next five years; while David completed the physical renovations, Kelly managed their household so that he could devote his free time to the renovations; she cooked, cleaned, did the laundry, gardened, landscaped, and generally maintained the house; she also assisted with the selection of fixtures, tiles, flooring, and backsplashes, among other furnishings; and Kelly contributed $500 a month to their household expenses, an amount that covered more than half the monthly mortgage payment of $831.35.
[21] That evidence also supported the trial judge’s finding (iv) that a clear connection existed between Kelly’s contributions and the property.
[22] However, the trial judge did not expressly address arguments David made about why Kelly had not made out a claim for unjust enrichment, including the presence of a juristic reason for retaining the benefit. The trial judge should have. However, on the simple factual record before us I see no prejudice from the trial judge’s failure to do so. The answers to the question “why” the trial judge was satisfied that Kelly had established her claim to unjust enrichment are clear in the record: R. v. G.F., 2021 SCC 20, at para. 70.
[23] David first argued that a contractual reason existed which entitled him to retain the benefits conferred by Kelly. He contended that from the time they moved into Taplow in September 1998 until their marriage five years later in August 2003, their relationship was that of landlord and tenant. David contended that the $500 Kelly contributed each month from the time they started to co-habit was rent or, as he put it in cross-examination: “Um, she paid $500 a month I guess rent”. At trial, a receipt dated August 10, 1998 for $500 that David had given to Kelly was filed as an exhibit. On the receipt David had noted: “August 98 Rent”. David also made much of the fact that Kelly agreed on cross-examination that it was reasonable to suggest that she had given David post-dated cheques for her “rent”.
[24] When the evidence is viewed as a whole, there was good reason why the trial judge did not accept this argument by David. Admissions made by David during his cross-examination belied his characterization of their relationship as one that was landlord and tenant-like. David acknowledged that he and Kelly moved into a property that was barely livable and required extensive renovations, hardly a scenario in which one party would pay “rent”:
Q. So she was all in, and you were all in too. Buying this crappy house, fixing it up, fixing it up over, and living in it while you were fixing it up – she was in on all of that. And so were you.
A. Yeah. I suppose.
Q. Yeah, young people do crazy things like that. And you did it together. Right?
A. I guess, yeah.
Q. Yeah. And she lived in that Taplow house with you while it was basically under construction?
A. Yeah. I mean the main floor was done, but the – except other than the kitchen but that was you know another issue, but the basement was.... (Emphasis added.)
[25] David also acknowledged that Kelly contributed to their ability to proceed with and complete the renovations at Taplow:
Q. You said to this court sir, that you did the next phase of the renovation when you could afford it?
A. Yes.
Q. And Kelly contributed to the savings that led to you being able to afford it?
A. She contributed to the monthly you know maintenance and operational household expenses. Absolutely.
Q. And she reduced your monthly expenses because she had an income and she was contributing to the household?
A. Yeah.
Q. Yeah. She was keeping things together to allow you to do the physical work?
A. Um, yeah, I don't know because she also worked at nights too, so.
Q. Yeah, that’s right…
A. Yeah.
Q. ...because that’s what it took to keep this whole project afloat?
A. Sure.
Q. To keep money coming in so that you would have food on the table while you were still building this home? She had to do that. You needed extra money.
A. Yeah, sure. Absolutely. All money helps.
[26] David’s second argument was that even if there was unjust enrichment, the trial judge should have considered whether the FLA’s equalization scheme remedied the unjust enrichment. David emphasizes that the sale proceeds from Taplow were placed into the couple’s next home, in which they held title as joint tenants, thereby enabling Kelly to participate in any future appreciation of value.
[27] I see no merit to this argument. The FLA’s equalization scheme governs asset accumulation during marriage: McNamee v. McNamee, 2011 ONCA 533, at para. 66; Martin, at para. 66. While the equalization scheme will likely resolve most unjust enrichment claims resulting from a marriage, a claim that one party was entitled to an interest in a property existing at the date of marriage based on unjust enrichment arising prior to marriage requires analysis under the common law framework outlined in Kerr. Consequently, the trial judge was not required to consider Kelly’s entitlements that would arise post-marriage date under the FLA when considering her unjust enrichment claim based on events occurring before and in respect of an asset existing at the date of marriage.
[28] On appeal, David also argues that the mutual conferral of benefits that occurred during the pre-marriage stage of the relationship amounted to a juristic reason for his enrichment and Kelly’s deprivation. While mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, its use at that stage is limited to providing relevant evidence of the parties’ reasonable expectations that could support the existence of a juristic reason outside the settled categories, such as a contractual relationship: Kerr, at paras. 109 and 115. As the trial judge pointed out at para. 53, the evidence in the present case pointed in a different direction. After their marriage in 2003, David and Kelly sold the Taplow property and used the proceeds to buy another “fixer-upper”, this time with the title registered in both their names. Accordingly, the evidence as a whole showed that David and Kelly arranged their affairs to acquire “fixer-uppers”, renovate them, and then sell them at a profit, with both parties expecting to benefit from their mutual efforts.
[29] To summarize the analysis to this point, I see no reversible error in the trial judge’s findings (i) to (iv) described in para. 19 above that supported his conclusion Kelly was entitled to a remedy in respect of her contributions to the renovation of the Taplow property on the basis of unjust enrichment.
[30] That leaves for consideration the trial judge’s finding (v) that David and Kelly owned the Taplow property equally on the date of their marriage, with the result that each could deduct 50% of the net value of the property on that date for the purposes of calculating their net family property. Having found that Kelly had made out her claim for unjust enrichment, the trial judge did not then consider whether monetary damages would suffice to address the unjust enrichment, which Martin indicates is the next step in the analysis. Given the way the parties framed the issues for the trial judge’s determination, it is understandable that he did not consider the sufficiency of a monetary award.
[31] The remedy Kelly sought for the unjust enrichment was not a monetary award in the trial judgment or a proprietary interest in an existing asset. Instead, Kelly sought a remedy that would enable her to include part of the value of Taplow at the date of marriage in her net family property statement thereby recognizing the unjust enrichment David had received.
[32] On his part, David did not argue that monetary damages would provide Kelly with an adequate remedy; he sought to prevent Kelly from obtaining any remedy that would permit her to claim part of the marriage date value of Taplow in her net family property statement. On appeal, David has not argued that the trial judge erred by failing to consider a monetary award; instead, he argues that the trial judge erred by allowing Kelly to include 50% of the marriage date value in her NFP statement.
[33] Unfortunately, the trial judge gave no reasons for his conclusion that fairness required Kelly to receive a 50% interest in Taplow for her contributions. As stated in Kerr at para. 53:
The extent of the constructive trust interest should be proportionate to the claimant’s contributions. Where the contributions are unequal, the shares will be unequal… As Dickson J. put it in Rathwell, “The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions.” (Citations omitted.)
[34] Unlike the FLA, which presumes that couples are entitled to an equal share of net family property accumulated during marriage, there is no presumption that a finding of unjust enrichment entitles a claimant to a half interest in the property. The extent of the claimant’s interest must be proportionate to their contributions: Kerr, at para. 102. When the contributions are unequal, the shares should be unequal: Kerr, at paras. 84-85.
[35] I have concluded that on the record before us, the trial judge’s finding that Kelly was entitled to deduct 50% of the net value of the Taplow property on the date of marriage for purposes of calculating her net family property is a reasonably fair and equitable remedy. It is clear from the evidence that prior to their marriage Kelly and David were engaged in the joint project of renovating the Taplow “fixer-upper” for their mutual benefit. As well, the trial judge’s finding is supported by the evidence that David applied the full proceeds from the sale of Taplow to acquire the Valleyview Court “fixer upper” and put Kelly on title as co-owner, without any separate financial contribution by Kelly. Although that purchase took place four years after the date of marriage, it stands as a powerful recognition by David of Kelly’s equal contribution to the success of the Taplow renovation, which enabled them to move up the economic ladder to a higher-end house. Accordingly, I would not interfere with the trial judge’s finding on this issue.
IV. Second Issue: David’s Income for Support Purposes
Factual background
[36] David’s income for support purposes was contested at trial. David earned his living through his successful painting business, Mr. Paint. David and Kelly each hired experts to review David’s personal and corporate financial information and opine on David’s annual income. Their opinions were relatively similar, with Kelly’s expert finding a slightly higher income than David’s expert:
| Year | 2013 | 2014 | 2015 | 2016 | 2017 |
|---|---|---|---|---|---|
| Kelly’s Expert | $147,605 | $178,637 | $105,550 | $111,464 | $207,904 |
| David’s Expert | $92,626 | $140,103 | $87,379 | $115,706 | $193,816 |
[37] David argued that his income for support purposes should be set at $132,300, based on the average of his income in 2015, 2016, and 2017. He contended that his income in 2017 was an outlier and that the loss of a client in 2018 had resulted in a significant reduction in his earnings.
Analysis
[38] I would not interfere with the trial judge’s decision to use David’s 2017 income for support purposes, rather than a three-year average.
[39] The starting point for determining income for both child and spousal support is ss. 16 to 20 of the Federal Child Support Guidelines, S.O.R./97-175. [2] Section 16 sets a presumption that a spouse’s most recent [3] annual income shall be determined from the sources of income set out in Revenue Canada’s general tax return Line 150 income: Punzo v. Punzo, 2016 ONCA 957, at para. 19. Section 17(1) permits a court to look over the last three years in the following circumstances:
17(1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
[40] Accordingly, “the Guidelines rely on the more recent past to predict the near future and do not adopt averaging as a default methodology:” Mason v. Mason, 2016 ONCA 725, at para. 138. The language in s. 17 is permissive, not mandatory. The trial judge was under no obligation to average David’s income: Decaen v. Decaen, 2013 ONCA 218, at para. 50.
[41] Furthermore, the evidence at trial indicated that David’s suggested three-year averaging of his annual income at $132,300 would significantly understate his actual income. On cross-examination, David conceded that based on his current mortgage, tax, and insurance costs alone, he would have to be earning “at least” $160,000 a year to support those expenses. As well, as the trial judge noted David did not call at trial a representative of the client which Mr. Paint lost in 2018.
[42] Finally, I see no basis for interfering with the trial judge’s decision to exclude David’s 2018 T4 Statement of Remuneration Paid and Mr. Paint’s unaudited 2018 Financial Statements. In his reasons on the voir dire, the trial judge noted that David’s counsel conceded that the two documents were “not essential to the case” and their only value was that the corporate revenue report indicated that 2017 was an “exceptional year” and revenues fell in 2018. The trial judge stated that he was not satisfied that David took all reasonable steps to expedite the production of the T4 and company financial statements knowing that the matter was scheduled for trial at the April 2019 sittings. He further held that the document’s late disclosure prejudiced Kelly as her expert did not have sufficient time to consider them. The trial judge concluded that the “prejudice accruing from the admission of these documents would outweigh their probative value” and, as a result, he would not admit them into evidence: Family Law Rules, O. Reg. 114/99, ss. 1(8)(d) and (8.1). It was within the trial judge’s discretion to exclude that evidence on the ground that its prejudicial effect outweighed its probative value: Gray v. ICBC, 2010 BCCA 459, at para. 1.
[43] For these reasons I would not interfere with the trial judge’s decision to use David’s 2017 income for support purposes. Of course, if David’s income materially declines in the future, he may bring the appropriate motion to change.
V. Third Issue: David’s Claim for Post-Separation Expenses
Factual background
[44] At trial, Kelly and David both sought reimbursement for family-related expenses, most of which were incurred between the date of their legal separation on December 31, 2014 and the sale of the matrimonial home in November 2015. As mentioned, the family continued to reside in the house until its sale.
[45] Kelly sought reimbursement from David for his share of expenses charged to the family Visa card after separation relating to home maintenance, Mr. Paint expenses, medical, family vacation, children’s activities, and interest charges. The trial judge granted this claim writing simply: “The amount owing by [David] in this regard would be $12,285.59.”
[46] David sought reimbursement for half of the $48,160.68 in expenses he testified he had incurred in respect of the family home from January 1, 2015 until the house was sold in November 2015. In disposing of this claim, the trial judge wrote, in full: “This was not advanced in his Answer. [David] should not be entitled to an adjustment of the household expenses that he claimed.”
[47] David submits that two errors infect that conclusion by the trial judge:
(i) The trial judge applied a “double standard” in considering the parties’ reimbursement requests, disallowing David’s because he did not plead it in his Answer but allowing Kelly’s although she had not included them in her Application;
(ii) The trial judge erred in law by failing to give David credit against his retroactive support obligations for payments he made to third parties on a support recipient’s behalf, namely Kelly and their children.
Analysis
[48] I do not accept David’s first submission that Kelly failed to advance a reimbursement claim in her Application. In para. 16 of her Application, Kelly pleaded: “The Applicant is in need of funds to support herself and the children and to pay the credit card debt that the parties’ accumulated after separation. The Applicant has requested that [David] consent to the release of a portion of the sale proceeds, however, [David] has refused this request with no reasonable explanation.” Kelly squarely put the issue on the table from the start of the litigation.
[49] As to David’s second submission, given the thinness of the trial judge’s reasons on this issue a consideration of the record is required to ascertain whether it provides a clear answer: G.F., at para. 70.
[50] David and Kelly agreed on a legal separation date of December 31, 2014. However, they and their children continued to live together in the family home until it was sold in November 2015. Kelly testified that during 2015 she and David carried on with the “status quo”, “playing like [they] were together” as they did not want their children to know about the separation until the house was sold. As to their understanding about the responsibility for family expenses following the legal date of separation but before the sale of the house, Kelly testified on cross-examination as follows:
Q. Okay. And so the same principle, just so I understand – I’m not belabouring the point, so the same principle would apply to the family vacation in Florida, the Sabres game; in other words, you were living in the same house, you hadn’t told the kids yet, and there was no expectation that there was going to be some formal accounting of how money was spent.
A. All we were doing as we always had done – I was still buying the groceries, I was still – my role was still - hadn't changed...
Q. Right.
A. …since we separated, so.
[51] Prior to the date of separation, David had made all the payments on the family Visa card. After the date of separation, David only made occasional payments on the card even though family expenses, including expenses related to the family home, continued to be charged to the card. David explained that notwithstanding his pre-separation payment of all charges to the card, he stopped paying because technically the Visa card was in Kelly’s name and he just had a secondary user’s card.
[52] As to his own claim against Kelly for 2015 expenses in respect of the family home, David only advised Kelly a few weeks before the April 2019 trial that he would be seeking reimbursement for them. [4] He explained that he only decided to claim reimbursement when he realized that Kelly was seeking retroactive child and spousal support. However, cross-examination revealed that position to be completely unfounded. David admitted that Kelly’s September 2016 Application clearly stated she was seeking retroactive support.
[53] At trial, Kelly did not dispute that David had paid most of the $48,160.68 in expenses he was claiming but pointed out that his claim for reimbursement was a departure from the status quo regarding the management of the family’s affairs that had prevailed during 2015 until the house was sold.
[54] By the time of the trial, over three years had elapsed between the time David had incurred the expenses and his 11th hour reimbursement claim just prior to trial. He clearly knew from Kelly’s September 2016 Application that she was asserting claims for retroactive child and spousal support, yet he included no claim for any reimbursement of expenses in his November 2016 Answer. Prior to trial, David only paid monthly child support of $250, notwithstanding his position at trial that his income during that period of time averaged at least $132,300. Further, his claim for reimbursement of post-separation expenses marked a departure from the parties’ “status quo” approach between the date of legal separation and the sale of the house, an approach adopted in the interests of their two young children. The expenses for which David was seeking reimbursement benefitted all members of the family, including himself, as he continued to live in the family home until it was sold. Given those circumstances, I see no error in principle, or unreasonableness in the result, of the trial judge exercising his discretion to deny David his 11th hour, three-year old claim for expenses incurred during 2015. Accordingly, I do not give effect to this ground of appeal.
VI. Disposition
[55] For the reasons outlined above, I would dismiss the appeal. Based on the agreement of the parties at the hearing, I would award Kelly her costs of the appeal fixed at $15,000, inclusive of disbursements and applicable taxes.
[56] At the end of oral submissions, Kelly’s counsel requested an order that the parties’ real estate solicitor release the remaining sale proceeds held in trust in accordance with these reasons. David’s counsel did not object to that request. Accordingly, an order shall go that the remaining funds held in trust be distributed to the parties in satisfaction of the amounts awarded in the trial judge’s Order and the costs of this appeal.
Released: June 2, 2021 “G. R. S.” “David Brown J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. B.W. Miller J.A.”
Footnotes
[1] David’s factum also argued that the trial judge erred by making the August 7, 2020 order. However, during oral argument, David’s counsel advised the court that this issue is now moot and effectively settled. Kelly’s counsel agreed. Accordingly, there is no need to comment on the merits of this argument. As well, David requested that this court re-visit the costs awarded below only in the event he succeeded on the appeal, which he has not.
[2] Section 6.1 of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) states that “the starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines.”
[3] Section 2(3) of the Federal Child Support Guidelines states that: “Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.”
[4] March 18, 2019 Trial Scheduling Endorsement Form.
