NEWMARKET COURT FILE NO.: FC-07-26289-00

DATE: 20120711

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kelly Booth

Applicant

– and –

Joseph Howser

Respondent

Unrepresented

Peter B. Cozzi, for the Respondent

HEARD: December 1, 2011, January 9, 10 and 13, 2012

McDermot J.

Introduction

1On October 13, 1999, the Applicant in this proceeding, Kelly Booth, was involved in motor vehicle accident. That accident exacerbated previous work related injuries and resulted in an action being brought for damages by Ms. Booth. In June, 2005, Ms. Booth received a settlement of her claim in the amount of $275,000. She spent those monies on a number of items, including paying out the mortgage on the common residence owned jointly with the Respondent, Joseph Howser. Other than the net proceeds from the sale of the common residence, there is nothing left of those funds today.

2It is the disposition of these funds that has largely driven this litigation. After the separation of the parties in October, 2005, the Applicant remained in the common residence. It was eventually sold in June, 2009, and of approximately $200,000 in net proceeds, the Applicant received her one half of the net proceeds, while the Respondent received $20,000. There is approximately $88,000 inclusive of interest remaining in trust and the Applicant claims all of the remaining proceeds because she says that the Respondent would be unjustly enriched by receipt of his remaining share of the proceeds of the sale of the common residence.

3This unjust enrichment claim is, however, not the only issue in this litigation. Ms. Booth seeks spousal support as well as child support in respect of the parties’ daughter, Kellsey, who is now 18. Mr. Howser wishes to pay neither; he states that Ms. Booth is well able to work and Kellsey is no longer a dependent as defined in Part III of the Family Law Act.¹

4Mr. Howser, as well, claims repayment of $10,000 paid by way of holdback on the closing of the sale of the common residence; he states that this amount was in respect of deterioration in the condition of the common residence after separation for which Ms. Booth is responsible.

5At the commencement of trial, Mr. Cozzi on behalf of the Respondent objected to the Applicant proceeding with her spousal support claim; he noted that she had been directed on October 12, 2011 to provide her financial statement and three years of tax returns; she had not done so prior to trial. The Applicant had no excuse for failing to comply with the October 12 direction, and I put to her the options of whether she should abandon her claim or whether the matter should be adjourned to allow her an opportunity to file that material, something that would obviously have severe cost consequences. The Applicant consented to her support claim being withdrawn.

6As the Applicant began to testify, however, it became apparent to me that she did not understand the nature or consequences of the consent which she gave at the beginning of trial. She testified as to the numerous pain relief drugs that she was taking at the time of trial, and these drugs appeared to me to impair both her judgment and her ability to testify in a coherent manner. I allowed her to withdraw her consent on the basis that she would file a financial statement in the continuing record the next day. As noted in Boswell J.’s endorsement of December 2, 2011, she did file the financial statement. Her income tax returns were filed as exhibits at trial. Other than the Respondent’s assertion that income should be imputed to the Applicant, her income was neither in issue nor questioned as it was solely CPP income. We were able to ascertain from testimony Ms. Booth’s partner’s income. I accordingly permitted the Applicant to continue with her claim for spousal support as well as child support.

7The trial proceeded over a four day period. The parties filed written submissions after trial; the final written submissions were filed by the Applicant and the Respondent respectively on January 30 and February 17, 2012.

8For the reasons set out below, I have determined the following:

a. The following amounts shall be paid to the Applicant from the Respondent’s share of the funds held in trust:

i. In respect of the Applicant’s trust claim, the sum of $25,132.34 plus 30.4% of the interest earned on the trust funds to the date of disbursement of these funds;

ii. In respect of retroactive base guideline child support unpaid by the Respondent, the sum of $5,436;

iii. In respect of section 7 expenses connected with Kellsey, the sum of $809.88;

iv. In respect of the Applicant’s spousal support claim, the sum of $40,000.

b. The Respondent’s claim for repayment of the $10,000 holdback provided to the purchasers of the common residence on closing is dismissed.

c. The Applicant’s claim for ongoing child support is dismissed; and

d. The Respondent shall receive a credit for $265 for the Applicant’s share of the costs of an appraisal obtained pursuant to the temporary order of Maddelena J. dated July 24, 2007.

Background Facts

9These parties met each other in high school. Ms. Booth is presently 44 years of age and Mr. Howser is 43.

10The parties could not agree as to when they began cohabitation. Ms. Booth said that the parties began to cohabit in 1986, about a year after they met. Mr. Howser stated that this was not cohabitation within the meaning of the Family Law Act; all that occurred was that Ms. Booth was forced out of her home by her parents in 1986 and she went to live at the Respondent’s parents’ residence. He states that he was in another relationship at this time; after Ms. Booth moved in, she was a nanny at his parents’ residence for several years. He stated in testimony that the parties began to live together in a relationship in 1987 or 1988 when he and Ms. Booth rented an apartment with his brother, John Howser.

11Mr. Howser’s evidence was that the parties had a number of apartments over the years until they purchased the common residence located at 24345 Valleyview Drive, Baldwin, Ontario. That property was bought by the parties as joint tenants in June, 1998 for approximately $200,000. Mr. Howser stated that the down payment of $10,000 came from his resources; Ms. Booth stated in evidence that she had saved her paycheques to make the down payment. Mr. Howser acknowledged that Ms. Booth provided several thousand dollars towards the legal fees and disbursements connected with the purchase of the property.

12The property was a rural property. It had a home, barn, several sheds and outbuildings and a mother-in-law suite attached to the main home. The main residence was 2,500 square feet; the in-law suite was about 1,000 square feet. During the fall of 2004, Mr. Howser’s parents moved into that suite. They resided in that suite and paid rent in the amount of $700 per month until well after the separation of the parties.

13Around the time that the parties commenced cohabitation, Ms. Booth obtained a job at a Pet Valu warehouse; she eventually became a supervisor. Her income was in the range of about $35,500 per annum. She testified that the job involved a lot of lifting; she had to lift bags of aquarium gravel and pet food bags weighing in excess of 50 lb. In April, 1998, the Applicant injured her back. She originally thought it to be a pulled muscle; she eventually required back surgery for a herniated disc on an emergency basis on May 13, 1998. She received WSIB payments at the rate of 80% of her salary which began on the date of her injury and ended on April 26, 1999 when she accepted a lump sum payment of $10,012.12 for a 14% permanent disability. Ms. Booth attempted on several occasions to return to work, but she could not. She says that she continues to suffer from the herniated disc and scarring from her surgery. Other than her early attempts to return to work she has not worked since the date of the work related accident in April, 1998.

14On October 13, 1998, Ms. Booth was involved in an at-fault motor vehicle accident. According to Ms. Booth, the accident exacerbated the lower back pain resulting from the work related injury, and also resulted in increased neck pains and headaches. She was unable to sleep. She suffered from tightness in her muscles and began to have cognitive problems arising from the chronic pain and sleep deprivation. She had difficulty in coping and was unable to work. She says that she still suffers from pain and depression resulting from this injury and she presently takes numerous prescription drugs to cope. She takes Cymbalta for depression and Oxycontin for the chronic pain that she still suffers from. Just prior to trial, she began to take Co-Valsartan for high blood pressure. She was also prescribed Endocet when necessary and Amitriptyline; she was not sure why she takes the latter. She takes Celebrex for muscle and neck pain.

15On May 12, 2005, the motor vehicle litigation was settled. Ms. Booth received $275,000; Mr. Howser received $30,000 for his Family Law Act claim. The Applicant’s lawyer, Lawrence Mandel, offered a structured settlement, but Ms. Booth elected to take a lump sum settlement and to pay off the mortgage on the jointly owned common residence. Mr. Mandel was concerned about this use of the funds, especially as these funds partially constituted proceeds of a claim for pain and suffering, normally exempt from equalization under the Family Law Act. A memorandum was filed from Mr. Mandel to an associate dated May 12, 2005. In that memorandum, Mr. Mandel stated that he had offered a structured settlement but that the Applicant had wanted to pay off the mortgage on the jointly held home:

I warned her about the fact that she is putting (sic.) into the matrimonial home and that if there is a break-up, the husband gets half the value of the house. She is aware of that and still wants to pay off the mortgage and I am satisfied, as long as she knows what the potential repercussions are if there is a break up, and she understands that.

16Mr. Mandel was not called as a witness; Ms. Booth confirmed, however, in cross examination that she did receive that advice from Mr. Mandel.

17Ms. Booth states that it was Mr. Howser’s decision to pay off the mortgage. She says, as well, that her lawyer made a fundamental error when giving this advice; she says that he assumed that the parties were married and accordingly his advice was wrong as the pain and suffering damages exemption from net family property in the Family Law Act only applies to married couples. She stated that she did not understand that she was providing an immediate benefit to Mr. Howser.

18Mr. Howser stated that Ms. Booth alone decided to pay off the mortgage and that he was not involved in that decision. He stated that Mr. Mandel took Ms. Booth aside, and asked her what she wanted done with the funds. Mr. Howser states that Mr. Mandel was clear with her that if she put the money into a joint asset it became the property of both parties; the same would apply if the funds were deposited into a joint account. In fact, that is what occurred; Ms. Booth’s funds were put into the parties’ joint account used to pay the mortgage; it was eventually applied to the mortgage as set out below.

19Mr. Howser states that his $30,000 went into the joint account as well; Ms. Booth says that he, in fact, paid those funds into a separate account, and never paid them out toward family expenses. Neither party produced the bank statements in respect of the joint account at trial; however Ms. Booth did produce bank records in respect of the Respondent’s bank account from October, 2005. Those consisted of transaction records which showed a number of large cash withdrawals from the Respondent’s bank account, along with a Deposit Account History showing that Mr. Howser had in excess of $26,000 in his bank account in October, 2005. Mr. Howser did not give any evidence as to any other source for these funds, other than as being from his share of the motor vehicle accident proceeds.

20The mortgage was paid off in July, 2005. Mr. Howser recalls the amount paid to be $173,000. Other payments were also made from the funds received from Ms. Booth’s motor vehicle proceeds. Several credit card debts were paid off; Mr. Howser states that most were joint, but he acknowledges one of the cards paid off was his alone. The parties did the roof of the home for approximately $1,200; they also installed a hot tub and pool which together cost $6,600. The parties repaired the foundation and replaced the windows of the home at a cost of $3,450 and $11,000 respectively. Air conditioning and a furnace were installed for $1,400. An $11,000 loan for a Grizzly 4-wheeler purchased in Mr. Howser’s name in 2003 was paid off. A horse was purchased for Kellsey for $3,500. According to Mr. Howser, the parties even spent $6,000 on breast implants for Janet Armstrong, a friend of Ms. Booth’s. Ms. Booth denied paying for the breast implants; however, she later cross-examined Mr. Howser as to whether he had suggested paying for the implants and he said that he did. Not surprisingly, within six to eight months, most, if not all of the money paid to Ms. Booth was gone.

21In the meantime, Ms. Booth applied for and received CPP benefits. She says that ongoing benefits began in April, 2003. On April 26, 2003, Ms. Booth received a retroactive CPP payment of $28,642 which represented her CPP benefits retroactive to April, 2001, part of which she says was spent on paying off a loan on a motorcycle owned by the Respondent, which he continues to use today.

22Throughout most of the relationship, since 2000, Mr. Howser had been working at Quebecor; he was a second pressman making $36 per hour. His income in 2006 was $59,120.18. For several years, he worked a second job to help make ends meet.

23Prior to the date of the settlement of the motor vehicle action, the parties had long been struggling financially. Although Mr. Howser had a good income from his employment, Ms. Booth’s income had been solely from Canada Pension Plan receipts which were in the range of $11,000 per annum. In evidence, Mr. Howser complained bitterly about this; he stated that Ms. Booth should have been able to go back to work within six months or so of the motor vehicle accident. If this was, indeed, the case, Ms. Booth obtained both CPP benefits and her lost income claim (and Mr. Howser also received the benefits of that claim through payment of the mortgage) in the motor vehicle accident settlement through false pretences.

24In any event, Mr. Howser asked Ms. Booth to go back to work soon after receipt of those funds. She did not. He says that she seemed to be well able to work. He says that she was on the computer for hours at a time, and could have done that in an office. He notes that she did heavy physical work around the property, moving bails of hay in for the horses and mucking the stables. He assisted neighbours in taking care of their horses when they were away. He states that Ms. Booth was well able to work in 2005 when she received her motor vehicle proceeds, and is well able to work today. His evidence was that Ms. Booth stated that because she had received her motor vehicle accident proceeds and paid off the mortgage, she did not have to work.

25Ms. Booth denies that she did heavy work around the home. Although she did work with the horses, she states that she only worked one hour a day, and this mostly involved letting the horses out into the paddock. She states that she did move bails of hay around, but got help from the neighbour or Kellsey to do so. She stated that the housework was mostly light in nature and the heaviest work around the home was doing the clothes washing.

26Soon after the mortgage was paid out, the common residence was remortgaged to secure a line of credit. It appears that this was done in stages and it is uncontradicted that the funds raised by way of the line of credit or lines of credit registered against the common residence were used to fund a number of assets, all of which were placed in the name of Mr. Howser.

27Ms. Booth states that the first line of credit was registered against the home in October, 2005. Ms. Booth says it was for $200,000; Mr. Howser says it was less. Initially, Mr. Howser used these funds to purchase a property located at 10 Hoffman Drive in Sutton, Ontario. According to Mr. Howser, that property was purchased for $146,000 and the funds for the purchase of that property were raised through the first line of credit registered against the common residence. Ms. Booth says that she thought she was on title to that property and it was a surprise to her when she later discovered that she was not.

28The Respondent also purchased several vehicles in his name. Soon after buying Hoffman Drive, Mr. Howser used the funds from the October, 2005 line of credit to purchase a GMC truck. Mr. Howser puts the amount of the funds needed to purchase that truck at $35,000; Ms. Booth states that it was closer to $42,000. In any event, that vehicle was purchased with funds raised on the line of credit registered against the home and it too was placed in Mr. Howser’s name.

29Finally, in November, 2005, a Cadillac was purchased as a family vehicle; the Cadillac was purchased with very little down and financed for over $20,000. That vehicle was also placed in Mr. Howser’s name although Ms. Booth thought it was her car, and she used that vehicle until well after the separation.

30Ms. Booth states that the parties had placed a second line of credit against the home in April, 2006; those funds were originally intended for the construction of a garage on the property. The garage was never built and the loan for the Cadillac was paid off using that line of credit intended to be used for the construction of the garage. Ms. Booth filed a line of credit statement from Mastercard which indicated that the second line of credit had a limit of $97,000 and that the sum of $16,946.05 was withdrawn from that line of credit on April 13, 2006 to pay out the car loan on the Cadillac.

31Eventually, after separation, in November, 2007, the property at 10 Hoffman Drive was sold. The net proceeds of that property in the amount of $152,113.53 were applied to the line of credit on the common residence; however, when the Valleyview Drive property sold, there remained $50,264.67 outstanding on the line of credit which was paid on closing. Ms. Booth states that a portion of this was in respect of Hoffman Drive as she says that more than $152,113.53 was used by the Respondent to purchase Hoffman; Mr. Howser states that was not the case as Hoffman only cost him $146,000. Whatever version is correct, there is little doubt that the amount outstanding on the line of credit on the date of closing of the common residence represented assets purchased in the name of Mr. Howser alone.

32The separation, when it came, was acrimonious. On September 3, 2006, the parties fought over where the Respondent had spent the previous evening, and in the end Ms. Booth ended the relationship. The Respondent remained under the same roof for about a month, moving out in October, 2006. Although Mr. Howser states that he had initially intended to come back to maintain the property, he says that the Applicant called the police whenever he showed up, and he elected to stay away after that occurred.

33He continued to pay certain expenses of the property including the $500 monthly Ontario Hydro payments; however, he lost his job in September, 2007 and advised that he was no longer going to make those payments. He lost the job with Quebecor because there was an allegation that he had stolen some printing plates. He was not charged with the theft, and Mr. Howser states that the real reason that he lost the job was because of a new supervisor who did not like him. In any event, after termination, he was not eligible for Employment Insurance as he had been terminated for cause. He was no longer able to make payments toward the expenses on the home, including the hydro payments. Mr. Howser’s father, James Howser, testified that he and his wife left the in-law suite at the common residence because he was told that Mr. Howser would no longer be paying the hydro bill; however, he also stated in evidence that he moved out of the home in February, 2009, well after Mr. Howser lost his job and after the hydro was cut off by Ontario Hydro in August, 2008. However, he may have been confused as to the date he left the common residence; evidence was also given that after the hydro was cut off in August, 2008, Kellsey considered moving in with the Respondent and his parents in their apartment; she did not want to and moved in with a friend. This would imply that Mr. Howser’s parents had a separate residence where Mr. Howser was also staying prior to August of 2008.

34After the physical separation of the parties, Mr. Howser moved in with a friend, Richard Stevenson. Shortly after losing his job, Mr. Howser moved out of Mr. Stevenson’s residence; he lived in his car briefly and then moved in with his brother. He presently lives with his parents; he does not pay rent. He soon obtained a job with Hallmark Canada at their warehouse; initially, he was originally making $11 per hour stocking shelves but he has had several promotions since. He is now a lead hand with Hallmark Canada in Aurora making $22 per hour.

35Mr. Howser states that between the date that he moved out, and the date of the sale of the common residence, June 29, 2009, Ms. Booth allowed the condition of the home to deteriorate substantially. He states that Ms. Booth allowed the dogs into the home, and that they destroyed the floors of the home. He states that the roof was allowed to deteriorate and that there was water damage to the interior of the home. The horses were allowed into the yard and damaged the landscaping. He said that the pool and the hot tub were allowed to deteriorate and were not cleaned or properly winterized; he noted that Kellsey had a rash from the use of the hot tub. Mr. Howser filed an appraisal as part of his exhibit book (although he did not identify it or make it part of his case in testimony) which was intended to show that the property was worth $375,000 at the date of the appraisal (August 29, 2007) as well as pictures intended to show that the property deteriorated over the nearly three years between the date of separation and the sale of the property. He says that he would have come back to maintain the property, but every time he showed up, Ms. Booth would call the police; he ceased coming to the home and was unable to properly maintain the home.

36Ms. Booth denies that the property deteriorated. She acknowledged calling the police on the Respondent but that was after he punched a hole in the wall. She says that Mr. Howser came to the home and removed items from the shed contrary to a court order; she was forced to put a lock on the shed. She says that the dogs were always in the home, prior to and after separation; this was confirmed to some extent by the Respondent’s father who was a tenant on the property for 4 ½ years and who recalled the dogs being in the home prior to separation. Mr. Howser’s father also had testified as to the leaking roof, but later acknowledged that this was not first hand knowledge, but only gleaned from information from his son or Ms. Booth’s mother.

37It is, however, common ground that, at a certain point, the hydro was cut off of the property. This occurred after the home was listed and when Ontario Hydro came out to install a Smart Meter and found evidence of power diversion on August 8, 2008. Ontario Hydro immediately disconnected the power from the property and assessed a charge for diverted hydro in the amount of $13,154.63. Ms. Booth did not have the funds to restore the hydro connection and she lived in the home without hydro from the date of disconnection throughout the winter of 2008-09 and had an extension cord running from the neighbour’s residence to keep the sump pump running. The home was heated through this winter by a wood stove. When the home was sold, the power remained disconnected.

38The utilities charge assessed by Ontario Hydro was paid from the closing proceeds. Ms. Booth blames Mr. Howser for the hydro diversion, noting that he had some fairly shady characters working on the home prior to separation; Mr. Howser states that he knew nothing about the hydro diversion. He does not hold Ms. Booth responsible for the hydro diversion; he claims that the former owners may have diverted the power (the home was purchased in 1998 or so).

39Mr. Howser states that he suffered a loss of $10,000 due to the deterioration in the condition of the property. He states that this was reflected in a holdback taken on closing by the purchasers to do repairs on the property. That assertion is not borne out by the reporting letter of the solicitor acting on the sale of the home; she stated in the reporting letter that these funds were held back “in connection with restoration of power to the property and any possible damages that may have resulted due to the power being disconnected.”

40Mr. Howser notes as well that the purchaser eventually sold the property for substantially more than the parties sold it to it for; the home was sold by the parties for $300,000 and later was resold by the purchasers for $375,000. Ms. Booth notes that the property was purchased for speculative and restoration purposes and did sell for more because they did a substantial renovation on the property prior to sale. However, if the appraisal filed by the Respondent is accurate, the property apparently did fall in value between August, 2007 and June, 2009 when it was sold.

41Both parties complain about their personal property and household contents accumulated during marriage. Mr. Howser states that he had locked his tools and other items in a shed on the property; he stated that his lock was removed by the Applicant, and another lock put on preventing entry to the shed. When he arrived to pick up his items on June 28, 2009, he found the door ajar and most of his items gone or destroyed. He stated that little of value was left in the shed.

42Mr. Howser also stated that he had a number of items in the home, including a set of Harley Davidson Franklin Mint memorabilia, which he stated had a value of $7,000 as well as some watches, all of which were in a cabinet in the living room. Mr. Howser testified that when he arrived at the home on June 28, 2009, these items and the cabinet were missing.

43Ms. Booth acknowledges changing the lock on the shed. She said that this was because the Respondent kept on coming to the property and removing items and that she had to lock the shed to prevent him from removing his property. She says that the Applicant’s tools were left in the shed and that he picked up his Franklin Mint memorabilia and his watches. In correspondence forwarded by her solicitor to Mr. Cozzi after closing, she stated that Mr. Howser had picked up his items and had also left a large mess to clean up.

44Ms. Booth was more concerned about the vehicles retained by the Respondent than the household contents. When the common residence sold, the line of credit in the amount of $50,264.67 was paid off from the sale proceeds. As noted above, these funds were used to purchase the Respondent’s truck and Cadillac. The Respondent kept his truck; as well, after separation he picked up the Cadillac from a parking lot when the Applicant and Kellsey were at a movie. They had to make their way home and had no vehicle after that. Mr. Howser was unapologetic about this; he stated that it was his asset and he had a right to pick up the car. He eventually sold the Cadillac for $2,500 and bought a VW Jetta with the funds. He also ended up with the Grizzly 4-wheeler, which was paid off from the motor vehicle accident funds; he sold it for $2,000 and used the funds to live on.

45Ms. Booth has since closing lived with her new partner, William Harper. Kellsey continues to live with Ms. Booth as has been the case since separation. Ms. Booth’s partner works and earns income of $4,500 per month after taxes. In evidence, his gross income was acknowledged to be somewhere between $69,000 and $75,000 per annum. Kellsey has been sporadically attending school. In the last school year, she should have attained 8 credits but only obtained 1.5 credits. The report cards filed disclose an abysmal attendance record. Kellsey has only 12 high school credits and is 18 years old. Notwithstanding Ms. Booth’s statement that Kellsey was “back on track” and now attending school, the evidence filed did not bear this out; Kellsey is obviously uninterested in school at present.

Evidence at Trial

46Both of the parties gave evidence at the trial. There were, naturally enough, significant differences between the evidence of the parties, and in particular in respect of Ms. Booth’s ability to work. Mr. Howser’s father, James Howser, also gave evidence in respect of the deterioration of the home, as well as in respect of work done around the property by Ms. Booth.

47Mr. Howser submitted that there were serious credibility issues concerning Ms. Booth and the evidence that she provided. As proof of this, he proffered an Affidavit of Justification by a Surety wherein Ms. Booth offered herself as surety for Keith Furlong, who was described as a mutual friend of the parties. The affidavit was dated October 17, 2006 and states that Ms. Booth was a joint owner of both the Valleyview Drive property as well as the Hoffman Drive property. When she swore that affidavit, she was, of course, not an owner of the Hoffman Drive property which was solely in the Respondent’s name.

48Ms. Booth was charged with perjury and obstruction of justice as a result of a complaint made by the Respondent at the Newmarket court house. He says that the affidavit sworn by the Applicant stated that Ms. Booth had consulted with him regarding placing these properties as security for Keith Furlong when she had done no such thing. Ms. Booth acknowledged pleading guilty to an offence and paying a fine. She insisted that she did consult with Mr. Howser about using the property as collateral and that she texted him and he agreed that she could act as surety for Mr. Furlong.

49In fact, Mr. Howser’s father, James Howser, confirmed Ms. Booth’s version of events. He testified that he observed Ms. Booth telling Mr. Howser of the fact that she was intent upon bailing out Keith Furlong. Moreover, Ms. Booth testified that she had always thought the Hoffman Drive property was jointly owned and only discovered well after it was purchased that it was in Mr. Howser’s name alone.

50This is the first of a number of inconsistencies in Mr. Howser’s evidence which causes me some concern. There were others. One example is the fact that Mr. Howser stated that he had transferred his $30,000 received for his spousal claim in the motor vehicle litigation into the joint account; in fact, the funds apparently were transferred into his own account as evidenced by the bank statements of his account from October, 2005. Another example is the fact that he had testified that he did not take printing plates from his work place and that he had been falsely accused of doing so; later in cross examination, he admitted to taking the plates, but said that “everyone did it.” At another point, he testified that during cohabitation, the dogs were never allowed in the home other than on cold nights when they went into the basement; Mr. Howser’s own father testified that he observed that the dogs normally lived in the home.

51These concerns are bolstered by Mr. Howser’s actions during marriage and afterwards. When he purchased property using joint funds from the matrimonial home, he inevitably put it into his own name. He protected himself by placing his share of the motor vehicle funds into his own account. He removed the family vehicle from the possession of Ms. Booth, thereby depriving her and Kellsey of transportation. While that may have been his legal right, it smacks of a “dog in the manger” mentality, and deprived his own daughter of transportation when she and her mother lived in the country, away from public transit. The evidence indicates that while Ms. Booth was inordinately generous, if not careless with her funds, Mr. Howser was exactly the opposite; he ensured that almost every asset other than the common residence was placed in his name alone, and took advantage of this after separation.

52My assessment of the evidence provided by the parties is that Ms. Booth’s evidence is generally more credible than that of Mr. Howser. I found Mr. Howser’s testimony self serving and inconsistent as noted above. Accordingly, where Ms. Booth’s evidence conflicts with that of Mr. Howser, I generally prefer the evidence of Ms. Booth.

Analysis

53These proceedings were commenced by Ms. Booth on February 5, 2007. She claimed the matrimonial home by way of constructive trust interest, as well as child and spousal support. Mr. Howser filed an answer; other than claims as to return of personal property, custody and child support this was largely a response to the claim of the Applicant. In his closing submissions, Mr. Howser did not request any relief respecting the home other than payment of $10,000 being the holdback on closing paid to the purchasers of the common residence noted above. He did not request anything respecting his chattels and, indeed, did not provide evidence of the value of the chattels that he says he did not receive other than a set of Harley Davidson collectables which he stated was worth about $7,000.

54Therefore, and according to the submissions of the parties, the issues for me to decide are as follows:

a. Is the Applicant entitled to part or all of the Respondent’s net proceeds of the common residence pursuant to the doctrine of unjust enrichment and constructive trust?

b. Is the Respondent entitled to a credit for one half of the $10,000 holdback which was retained on closing by the purchasers of the common residence located at 24345 Valleyview Drive, Baldwin, Ontario?

c. Is the Applicant entitled to retroactive or ongoing child support in respect of Kellsey Howser including section 7 expenses under the Child Support Guidelines²?

d. Is the Applicant entitled to ongoing and retroactive spousal support payable by the Respondent?

e. Is the Respondent entitled to reimbursement for one half of the cost of an appraisal obtained by him pursuant to the temporary order of Maddelena J. dated July 24, 2007?

55I shall consider each of the abovenoted issues in turn.

(a) Is the Applicant entitled to part or all of the Respondent’s net proceeds of the common residence pursuant to the doctrine of unjust enrichment and constructive trust?

56The Applicant relies upon several factors in making her claim for a trust interest in the Respondent’s one half share of the net proceeds of the home. She firstly states that the money that allowed the discharge of the mortgage on the home came from her motor vehicle accident proceeds, which are acknowledged to have been used to pay off that encumbrance. It is her evidence that the Respondent asked her to do this, although the Respondent denies this to be the case. The Respondent also had credit card debts and a $10,000 loan on a four wheeler owned by him paid off. A substantial amount of those funds were used to pay for improvements to the common residence. Moreover, further assets were purchased through a line of credit placed on the now mortgage free home; both a truck and a Cadillac were purchased using these proceeds, both of which ended up in the name of the Respondent. The Respondent retained possession of both of these vehicles after separation, and the line of credit amount of $50,264.67 was paid upon the sale of the home. Were it not for the Applicant’s motor vehicle accident proceeds, the Applicant notes that there would have been little or no equity from which to fund the line of credit on that home.

57In argument, the Respondent concentrated on the intentions of the Applicant when the funds were received by her in 2005; he points to the advice received by the parties by Mr. Mandel, who advised the Applicant that the motor vehicle accident proceeds were exempt assets and would lose their exemption once paid into the joint account and thereafter into the joint asset which was the common residence. He states that this was clear evidence that the Applicant intended to gift him the benefit of those funds, and that there is no presumption of resulting trust to disprove based upon the clear intentions of the donor of those funds, being Ms. Booth. As such, Mr. Howser states that he is entitled to his one half of the net proceeds of the common residence presently held in trust. He has, as noted above, already received $20,000 from his one-half share of the net proceeds.

58The claim by the Applicant essentially lies under the doctrines of unjust enrichment and constructive trust; the overall remedy of a resulting trust in family law matters based upon presumed common intention is now no longer seen as a remedy in family law matters: see Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para. 24. It is to be noted that the ruling in this case does not affect a resulting trust claimed in respect of a gratuitous transfer between parties; that doctrine remains applicable as will be outlined below: see paragraphs 17 to 19 where a distinction was made by Cromwell J. between gratuitous transfers between parties, as in the present case, and other cases where assets in one party’s name are acquired through the joint contribution by both parties.

59This does not mean, accordingly, that the issue of a resulting trust in favour of the Applicant is not relevant; it is relevant to the issue of the gift alleged to have been bestowed upon the Respondent by the Applicant when she paid off the mortgage and paid for improvements on the home, as well as when the property was remortgaged to purchase assets for Mr. Howser. This is because the issue of gift is directly relevant to the claim in constructive trust being made by the Applicant in this proceeding.

60To make out a constructive trust, three elements are necessary. As set out in Kerr v. Baranow, supra, at paragraph 32, “Canadian law... permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment”. There is no issue in this case respecting the first two elements; Mr. Howser received a clear benefit in this case insofar as the mortgage on his interest in the common residence was discharged and he clearly benefitted from the debts being paid by Ms. Booth as well as the improvements on the home. He was able to purchase significant personal property through these funds and the lines of credit later placed against the common residence, including the four wheeler, the GMC Sierra and the Cadillac.

61There was also a clear deprivation to Ms. Booth. She could have placed the funds in a structured settlement which presumably would still be providing her with income at present. She did not. She paid off the mortgage and has now ended up with the $100,000 in net proceeds paid to her on closing, significantly less than the funds received by her in 2005. There is little doubt that there is a deprivation to Ms. Booth as required to make out a constructive trust.

62Accordingly, the major issue is whether there is some juristic reason for the transfer or enrichment of the Applicant. If there is, there is no constructive trust remedy available to the Applicant. One juristic reason noted in several cases is the issue of “donative intent”, which, if present, would prevent a constructive trust remedy in favour of the claimant. In other words, if the claimant intended a gift in favour of the Respondent, there is a juristic reason for the transfer of the asset, in which case there is no unjust enrichment or constructive trust remedy available to the claimant: see Kerr v. Baranow, supra at para. 41, Campbell v. Campbell (1999), 1999 CanLII 2294 (ON CA), 43 O.R. (3d) 783 (C.A.) and Rashid v. Shaher, [2010] O.J. No. 3490 (S.C.J.) at para. 174.

63Moreover, the transactions in question each constituted a gratuitous transfer of a benefit to Mr. Howser. He received a benefit when the mortgage was paid down and when the property which he owned was substantially improved by the expenditure of the Applicant’s funds. He also received a further benefit when he was able to purchase his property at 10 Hoffman Drive, as well as the truck and Cadillac by way of funds raised through encumbering the jointly owned common residence. As such, and as stated in Kerr v. Baranow, supra, the Applicant may rely upon a resulting trust to set aside that gratuitous transfer; if this is the case, there may be little reason to go beyond this remedy to consider the issue of unjust enrichment.

64The doctrine of resulting trust, in the case of a transfer without consideration, is a presumptive rule which affects the burden of proof in a civil action. Where normally the claimant bears the burden of proving that a transaction should be set aside, this is not the case in the event of a purported gift to a party; the onus shifts to the recipient of the gift because of the lack of consideration for the transfer of the asset. As stated by Rothstein J. writing for the majority in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795:

24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters' Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts. 25 The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

65Mr. Cozzi on behalf of the Respondent cites Saylor v. Madsen Estate, (2004) CarswellOnt 5446 (C.A.) as authority for the proposition that the reliance of the courts on the doctrine of resulting trust in the case of a gift is now greatly diminished, and should, in fact, only be evoked where the evidence is unclear as to intent: see paras. 24 and 25 of the report. This case was, however, decided prior to Pecore wherein Rothstein J. extensively discussed, inter alia, the presumption of resulting trust. He determined that the presumption of resulting trust still has a valid role to play in the determination of inter vivos gifts; he also did not go as far as did LaForme J.A. in Saylor. Rothstein J. stated that, in the case of a gratuitous transfer of an asset, the starting point was the presumption of a resulting trust; the onus was on the recipient of the benefit to prove the gift and rebut the presumption of a resulting trust on the balance of probabilities. At para. 44 of the report, Rothstein J. states:

44 As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor's actual intention. Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

66Later, at para. 55, Rothstein J. states, “Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted.”

67There is no issue that the transfers of the benefits in this matter were gratuitous in nature and without consideration. Accordingly, it is apparent to me that the proper course is to begin with the presumption that the transfers of the benefits to Mr. Howser were subject to a resulting trust in favour of Ms. Booth, and then to determine whether that presumption has been rebutted under the circumstances of this case. Although the onus to rebut that presumption is that of Mr. Howser, it is also clear to me that the overall intentions of the parties govern based upon the evidence led by both parties.

68There are two separate transactions to be considered. The first was the transaction which both parties concentrated their energies on at trial, being the payment of the mortgage and improvements to the home through the funds realized by the Applicant in her motor vehicle settlement. The second transaction is less obvious, but is just as important. That is the subsequent remortgaging of the home in order to allow the Respondent to purchase 10 Hoffman Drive, as well as his GMC Sierra truck and the Cadillac that the Respondent owned and later picked up from a parking lot outside a movie theatre while Ms. Booth and Kellsey were watching a film.

69Regarding the payment of the first mortgage, there was little difference in the evidence provided by the parties. Both agree that Ms. Booth received the sum of $275,000 in satisfaction of her motor vehicle accident claim. Both agree that this claim had a loss of income component as well as a general pain and suffering award. Both agree that the advice received by Ms. Booth from her lawyer, Mr. Mandel was as set out in the memorandum filed as part of the trial record and outlined above; both parties agreed in evidence that Mr. Howser would be receiving a benefit from the payment of the mortgage on the common residence, and Ms. Booth acknowledged being aware of the fact that this payment would benefit Mr. Howser as well as herself. Both parties agreed on the work that was done on the home as well as the costs of that work. Although the parties disagreed on several of the expenditures and on whose credit cards were paid off, the evidence about the circumstances under which the mortgage was paid was similar.

70Ms. Booth says, however, that there are several factors which would affect my finding regarding the intentions of the parties to pay the mortgage and benefit Mr. Howser through this payment. She noted that Mr. Mandel made a fundamental error in giving his advice as he spoke of the fact that the motor vehicle proceeds were exempt property under the Family Law Act when, in fact, the parties were not married and the Family Law Act equalization provisions would therefore have no application. She states that had he known that the parties were unmarried, his advice would have been different, and Ms. Booth’s decision as to whether to pay off the mortgage would have been affected.

71The issue before me, however, is not whether Ms. Booth received independent legal advice before making the decision of payment of the mortgage. The issue is whether she intended to benefit Mr. Howser at the time of paying the mortgage and subsequently improving the property. The statement from Mr. Mandel is only evidence of what Ms. Booth’s state of mind was at the time; she knew from this statement that she was, in fact, providing a benefit to her partner, Mr. Howser, which was little affected by whether the parties were married or not. She stated at one point in time that she did not know that she was conferring an immediate benefit in favour of Mr. Howser; however, her statement in evidence that, when she paid the money, she trusted that Mr. Howser would not “screw her” speaks volumes. In saying this, she indicates that she was aware that, by benefitting him through providing the funds to pay down the mortgage, she was enabling him to do just that. She, perhaps naively, trusted him to give her back the benefit bestowed upon him on separation. The fact that she so trusted him does not take away from the fact that she knew at that time that she was conferring a gratuitous benefit on Mr. Howser, and was aware that he may very well take advantage of this fact on separation.

72Accordingly, I find that, in respect of the payment of the mortgage and the subsequent improvements to the jointly owned common residence, Ms. Booth intended to bestow a gift in favour of Mr. Howser. As such, and as there is donative intent, there can be no resulting trust remedy available to Ms. Booth. There can be, as well, in respect of this transaction, no unjust enrichment or constructive trust, as there is a clear juristic reason for the benefit to Mr. Howser, being the intent to bestow a gratuitous benefit or gift on the claimant.

73The second transaction, however, is more problematic for Mr. Howser. This is the subsequent remortgaging of the common residence which allowed Mr. Howser to purchase a number of assets, all of which were placed in his name. These included the property at 10 Hoffman Drive, the GMC Sierra and the Cadillac. Mr. Howser ended the relationship owning all of these assets and received the ultimate benefit of those assets, howsoever small that ultimate benefit might have been. He certainly received possession of both vehicles.

74Almost no evidence was led by either party as to the intentions of the parties surrounding this particular transaction. Although the line of credit statements from Mosaic Mastercard were put into evidence, neither party spoke of what Ms. Booth’s state of mind was when she signed either of the lines of credit in question; the only evidence provided was Ms. Booth’s evidence that she had understood that Hoffman Drive was put into her name as well as Mr. Howser’s, and that she had originally thought that it was partly her property. However, all of the net proceeds from that particular property were paid toward the line of credit, leaving just over $50,000 owing on the line of credit, which was paid off by both parties upon the sale of the common residence at Valleyview Drive.

75Moreover, and more concerning, there was no evidence of common intent to provide a benefit to Mr. Howser through this transaction. As noted in Campbell v. Campbell, supra, there must be some common intention of donative intent before a gift can be found. There was no common intention in this case; firstly Ms. Booth thought that she was an owner of Hoffman Drive, when she was not. Moreover, Ms. Booth states that she thought that the Cadillac was her vehicle for her use; Mr. Howser took ownership of the vehicle and later took possession of the vehicle as outlined above. There was no common intention proven of a gift and I can take into account post-transfer evidence in determining the intention, or lack of intention of the parties at the date of the gift: see Pecore v. Pecore, supra at para. 56 et sequent.

76As there was no evidence led by either party in respect of this particular transaction, which effectively went to the gratuitous benefit of Mr. Howser, I am forced to rely upon the presumptions at law spoken of earlier, specifically the presumption of resulting trust. The law does not presume a gift, and in the event that there is no evidence proving the gift led by the recipient, the presumption of resulting trust gives rise to a remedy in favour of the claimant, Ms. Booth: see Pecore as cited above. Moreover, as I cannot find donative intent, there is no juristic reason why Ms. Booth would have provided her signature to the lines of credit in respect of her interest in the common residence, and as such a remedy lies in her favour concerning the remortgaging of the home to enable Mr. Howser to purchase the items that he did.

77The remedy is quantified by the line of credit which was left outstanding after the proceeds of Hoffman Drive were applied to pay down that line of credit, and which was paid out on the closing of the sale of the Valleyview Drive home. That line of credit was in the amount of $50,264.67 on the date of closing; Ms. Booth is entitled to reimbursement of one half of this amount as paid by her on closing, or $25,132.34 to be paid from the Respondent’s share of the net proceeds of the property presently held in trust. She is also entitled to interest earned on these funds while they were held in trust; the evidence was that the net proceeds left in trust after the payments of the funds to both parties to the credit of the Respondent was $82,588.44; the sum payable to the Applicant under this award constitutes 30.4% of the amount held in trust. The Applicant is accordingly entitled to 30.4% of the interest earned on the trust funds to the date of disbursement of these funds.

(b) Is the Respondent entitled to a credit for one half of the $10,000 holdback which was retained on closing by the purchasers of the common residence located at 24345 Valleyview Drive, Baldwin, Ontario?

78During trial, the Respondent complained long and hard about the fact that the Valleyview Drive property deteriorated while in the possession of the Applicant. However, the Respondent has not made a claim respecting the alleged waste committed by the Applicant in his written submissions other than for reimbursement of the $10,000 holdback eventually remitted to the purchasers of the Valleyview Drive property, which the Respondent states was in respect of the condition of the property on the date of closing. Presumably the claim is for one half of this amount as the Applicant had already paid her one half of this claim from her share of the matrimonial home proceeds on closing.

79It is to be noted that the Respondent did not make a claim in his pleadings for reimbursement for waste committed by the Applicant in respect of her period of possession of the common residence and did not seek an amendment to his Answer and Claim by Respondent to make that claim at trial. His only claim in his Answer was for custody of Kellsey, child support and for the return of his personal property. The Respondent is bound by his pleadings and cannot make claims not outlined in his pleadings as served and filed.

80However, even if this claim can be seen as an adjustments issue on the property claims made by the Applicant, and accordingly did not have to be specifically pleaded, there is no basis for this claim. According to the reporting letter of the solicitor who closed the Valleyview Drive transaction, the holdback was not in respect of the condition of the home on closing, which would have been apparent when the purchasers inspected the home, but was for the hydro reconnection charges. At page 2 of the reporting letter, the solicitor states:

Pursuant to the terms of the Agreement of Purchase and Sale, the amount of $10,000 was held back by the Purchaser’s solicitor in connection with the restoration of power to the property, and any possible damages that may have resulted due to the power being disconnected. The Purchaser’s solicitor has provided his personal undertaking not to release funds to the purchasers without proper invoices for the work done and any funds not required will be returned without deduction, penalty or interest.

81The actual agreement of purchase and sale was not filed by either party.

82Neither party led any evidence as to what the purchasers expended the funds on or as to whether either of the parties disputed the expenditure of these funds by the purchasers. Certainly, this was an obligation that arose from the power diversion discovered by Ontario Hydro, which resulted in the electricity being disconnected for nearly a year prior to the sale of the home. Significantly, although Ms. Booth blamed Mr. Howser for the power diversion, Mr. Howser did not similarly blame Ms. Booth. He stated that he thought that the last people to divert power were the previous owners of the residence (it was purchased by the parties in 1999). If he is not blaming Ms. Booth for the power diversion, he can hardly blame her for the results of the lack of hydro for that lengthy period of time, culminating in the $10,000 holdback taken on closing and presumably expended by the purchasers.

83Accordingly, the Respondent’s claim for reimbursement of his share of the $10,000 holdback is dismissed.

(c) Is the Applicant entitled to retroactive or ongoing child support in respect of Kellsey Howser including section 7 expenses under the Child Support Guidelines?

84There are two major issues regarding the Applicant’s claim for child support, which are as follows:

i. What, if any, retroactive and ongoing base guideline child support does the Respondent owe to the Applicant?

ii. What section 7 special or extraordinary expenses are owed by the Respondent to the Applicant for Kellsey’s expenses?

85I will consider those issues in turn.

(i) What retroactive and ongoing base guideline child support does the Respondent owe to the Applicant?

86Ms. Booth requests in her submissions “proper child support support under the Ontario Guidelines for Kellsey’s (sic.) Jade Howser.” Presumably, this constitutes a claim for retroactive support as well as ongoing child support.

87Mr. Howser is presently paying child support of $209 per month under the interim order of Maddelena J. dated January 31, 2008. That support is based upon income being attributed to the Respondent in the amount of $24,700 per annum and the support was to commence the first day after the date of the closing of the common residence. Accordingly, the Respondent has been paying child support since July 1, 2009, which was the month after the sale that the matrimonial home closed.

88The basis for the commencement date of child support was presumably because the Respondent was paying certain costs of the home, although evidence was given that the Respondent stopped paying the hydro bill of $500 per month after he lost his job in 2007 and the taxes were in arrears for 2008 and 2009 in an amount in excess of $4,500 when the home sold. Other than as noted above, no evidence was led by either party as to what expenses of the common residence were being paid by the Respondent and the January 31, 2008 order does not outline what expenses the Respondent was expected to make in respect of the home. It appears that the Respondent was, in fact, paying some expenses of the home as the Respondent was writing expenses off against the rental income of the home in order to reduce his income for tax purposes. This was presumably because his parents were residing in the in-law suite in the home, and Mr. Howser was paying certain expenses of the home. Other than in 2009, Mr. Howser’s Statements of Rental Income filed with his tax return were not provided as part of the material filed so it is unknown what expenses he actually paid.

89The child support also appears to be based upon an income that was never that of Mr. Howser. The order states that Mr. Howser had income of $24,700 per annum; in fact, since separation, Mr. Howser’s Line 150 total income as set out in his tax returns is as follows:

Year	Total Income (Line 150)
2006	$59,120.18
2007	$55,120.18
2008	$40,883.00
2009	$30,489.083
2010	$43,181.00

90Accordingly, it appears that, at least since July 1, 2009, Mr. Howser has significantly underpaid base guideline child support.

91Although not raised before me in argument or at trial, one issue that arises is whether I award any child support prior to June 29, 2009, when the sale of the common residence closed. I decline to do so. Although Mr. Howser had ceased to pay hydro and taxes, it appears that he did pay some expenses of the home prior to the sale of the home. The party seeking retroactive child support has some onus to lead evidence as to what exactly was paid, and what should have been paid; the latter is clear from Mr. Howser’s income as set out in his tax returns, but little or no evidence was led on the former. I am not going behind the July 1, 2009 commencement date of support as set out in the interim order for child support.

92Since July 1, 2009, as noted above, the Respondent has paid child support based upon income in the amount of $24,700. Mr. Howser’s income was, in fact, substantially more. The first issue raised by Ms. Booth was what Mr. Howser’s actual income was for 2009. In that year, he claimed rental losses of $10,103.26; a large amount of this was in respect of the taxes and utilities paid out by both parties on closing, which totalled $4,514.60 and $13,154.63 respectively. The former figure reflects tax arrears for 2008 and 2009; the latter was the hydro amount assessed in August, 2008 resulting from the hydro diversion discussed earlier in this judgment.

93As noted by Ms. Booth, the common residence was not rented out in 2009. The evidence of Mr. Howser’s father, James Howser, was that he and his wife vacated the in-law suite well before the beginning of 2009 when Mr. Howser had announced that he was no longer paying hydro. There was also evidence that Mr. Howser lived with his parents away from the home at that time as Kellsey considered going there when the hydro was disconnected by Ontario Hydro. Accordingly, the deduction for rental losses was improperly taken as there were no tenants in the in-law suite in 2009. In his Statement of Rental Income filed with his 2009 income tax return, Mr. Howser confirms that no rent was paid to him or Ms. Howser during 2009.

94Under the Child Support Guidelines, I can impute income where expenses are improperly deducted against income: see s. 19(1)(g). I find that Mr. Howser’s income for 2009 is his actual income from employment, which was $40,404.41. At that income, Mr. Howser should have been paying guideline income from July 1 to December 31, 2009 in the amount of $367 per month when he actually paid $209 per month; this makes for a deficit of $158 per month. Accordingly, for the six months of 2009, Mr. Howser owes retroactive child support of $948 (6 months @ $158 per month).

95For ongoing child support, Mr. Howser has been paying $209 per month and his 2010 income was $43,181 for that year; no improper deductions were taken by Mr. Howser. At $43,181 per annum, the child support that Mr. Howser should have paid would have been $396 per month, which makes for a deficit each month of $187 per month.

96The question then arises is when the child support for Kellsey comes to an end. In the present case, Kellsey turned 18 on December 1, 2011. The issue is whether she remained in full time attendance at a program of education in order to extend child support beyond the date of her 18th birthday; otherwise child support comes to an end as Kellsey would no longer be a dependent entitled to support within the meaning of s. 31(1) of the Family Law Act.

97As stated above, Kellsey’s school records indicate that her attendance at high school has been abysmal. Her June 30, 2011 report card indicated that she had taken 1.5 credits during the previous year instead of the normal eight credits offered during each school year. She earned one half of a credit; in the other course, she achieved a 30% mark and the credit was not granted. In the class that she failed, she missed 91 classes out of 178 during the entire year. Ms. Booth stated that Kellsey was now “back on track” and attending school during that term on a full time basis; however, she did not produce at trial Kellsey’s fall 2011 report card confirming the courses Kellsey was taking or her present attendance records.

98Ms. Booth pointed out that Kellsey has always struggled at school. Her attendance records in 2005 and 2006 were produced, and they were also poor. She failed to pass her literacy test and the next test was deferred because of Kellsey’s past failure. She states that Kellsey’s problems in school are not necessarily her fault as demonstrated by her past history.

99This falls short, however, of a diagnosed condition which would allow Kellsey to continue to be eligible as a dependent for support purposes. It is correct that Kellsey has always struggled in school, but the issue is whether Kellsey continues to attend school on a full time basis. The Applicant admitted during cross examination that Kellsey chronically skipped school, and continues to do so. She says she took four courses in fall, 2011, but failed to provide written proof of Kellsey’s attendance at those courses. She admitted that Kellsey has not taken four courses in a single term since 2009.

100I accordingly have little choice but to find that Kellsey is not attending school on a full time basis, and is accordingly no longer a dependent for child support purposes. The evidence is clear that Kellsey is not interested in school and is not attending school consistently. Even if this has always been the case, the fact remains that Kellsey will eventually reach a point where she ceases to qualify as a dependent and under the legislation, this is when she leaves her minority at age 18, and is not “enrolled in a full time program of education.” The Applicant could have provided written proof through Kellsey’s report card from the fall term of 2011 and failed to do so. I accordingly find that Mr. Howser’s child support obligation comes to an end on December 1, 2011, which was Kellsey’s 18th birthday.

101Accordingly, assuming that Mr. Howser has paid child support at the rate of $209 per month, he has underpaid child support at the rate of $187 per month for a 24 month period (January, 2010 to December, 2011). Accordingly, Mr. Howser owes Ms. Booth child support in the amount of $4,488 (24 months @ $187 per month).

102Accordingly, total arrears of child support are $5,436 ($948 + $4,488), which arrears shall be payable to the Applicant from the Respondent’s share of the net proceeds of the common residence.

(ii) What section 7 special or extraordinary expenses are owing for Kellsey’s expenses, which remain unpaid by the Respondent?

103For the purposes of determining the issue of the Respondent’s proportionate share of Kellsey’s section 7 expenses (as well as spousal support considered below), the Applicant’s income must be determined. As noted at trial and in the Respondent’s written submissions, the Respondent states that the Applicant is intentionally underemployed and income in the range of $35,000 per annum should be attributed to her.

104As noted above, the Applicant’s income has consisted mainly of Canada Pension Plan payments since 2001. She has proven to the satisfaction of CPP that she is disabled and not able to work. Notwithstanding this, Mr. Howser states that this is nothing but a sham; his evidence is that Ms. Booth often did heavy manual work around the property. He says that she moved heavy bails of hay for the horses, mucked the stables and often rode the horses. He says that as early as 2005, when the funds were paid out for the motor vehicle accident settlement, Ms. Booth was well able to work. He points to a medical report dated May 11, 1999 (prior to the motor vehicle accident) where the doctor states that Ms. Booth was able to work at a job involving lifting of no more than 15 pounds and no repetitive bending. He states that Ms. Booth spends hours on the computer every day; as such she could do this in an office. He acknowledges that a portion of the payment made to Ms. Booth was because of her pain and suffering, but also partly was compensation for Ms. Booth’s loss of income claim when she could, in fact, work; in fact, by stating this he acknowledges that the settlement which benefited both parties was effectively a sham and a fraud on the insurer which paid out the settlement.

105That being said, Ms. Booth denies that she committed such a fraud. She states that she spends a maximum of an hour on the computer each day; she cannot spend more due to the fact that she cannot sit or read for extended periods of time. She says that she was barely able to do housework for extended periods of time. Although she did care for the horses, this was for no more than one hour a day. She would clean the stables but used the neighbour’s tractor or hay wagon to move the large bails of hay for the horses. She denies that she ever moved the bails of hay herself.

106As noted above, where Ms. Booth’s evidence conflicts with that of Mr. Howser, I generally prefer the evidence of Ms. Booth. Although she did not produce any recent medical evidence confirming that she could not work, my own observation of Ms. Booth on the witness stand indicated to me that she had apparent disabilities. She was on heavy dosages of pain and other medication which appeared to affect her ability to manage her presentation at trial; she was unable at times to coherently give evidence in an ordered fashion and when I saw her on the witness stand, it became apparent to me that because of the medication that she was on, she did not understand or comprehend the nature and effect of the consent that she gave to withdraw her spousal support claim. My own observation of her leads me to believe that she would be unable to work on a full time basis, or earn income greatly in excess of that Canada Pension Plan income that she is presently receiving. Finally, Ms. Booth has been accepted for disability income from the Canada Pension Plan, which presumably requires clear evidence of disability before payments will be made under that program.

107Mr. Howser seeks to impute income based upon the fact that Ms. Booth is intentionally underemployed as provided for in s. 19(1)(a) of the Child Support Guidelines. To do this, he must provide an evidentiary foundation for the imputation of income to the Applicant; without such an evidentiary foundation, income cannot be imputed to the income earner in question: see Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.) and Bekker v. Bekker, 2008 CarswellOnt 173 (S.C.J.). Mr. Howser has not done so in the present case. I do not find his evidence believable. Moreover, both parties relied upon Ms. Booth’s inability to work to obtain a significant damages award which substantially benefitted Mr. Howser on a number of fronts; it does not lie in his mouth to subsequently say that she should have been working then and now.

108Accordingly, I find that Ms. Booth’s income is as disclosed in her various income tax returns, which was in 2010 about $12,000 per annum. I realize that due to Kellsey reaching her majority, this income has reduced somewhat; I am not willing to reduce the income from that disclosed in the income tax returns as filed as Ms. Booth did not provide documentary evidence as to the decrease in income, and I believe that Ms. Booth is probably capable of limited work which would earn the equivalent of her former Canada Pension Plan income in any event.

109That being said, and based upon Ms. Booth’s 2010 income of $11,956, and Mr. Howser’s income for that year in the amount of $43,181, Mr. Howser’s proportionate share of the expenses is 62.8% of the expenses. The next issue is which expenses as claimed are within the definitions contained in s. 7 of the Child Support Guidelines.

110The expenses claimed are as follows:

a. Dental Expenses

111Ms. Booth claims the sum of $1,368 for dental expenses as outlined in several receipts. One receipt provided is a collections notice for an amount owed to Dr. Azim Parekh in the amount of $728.40. The remaining receipts provided are in respect of a root canal, and an oral exam and polishing; those receipts are for services provided between November 5, 2010 and April 12, 2011.

112The collections notice provides no information whatsoever as to what services were provided or to whom. I am disallowing this claim.

113The remaining amount of $639.60 is the co-payment amount for the services after the payment by the applicable extended medical and dental coverage plan; at times the plan used appears to have been at times that of Mr. Howser and at times that of Mr. Parker. In any event, the expenses are properly documented and there is nothing to the claim that the discolouration issue is cosmetic and should not be paid for as raised by Mr. Cozzi in cross-examination. Mr. Howser’s responsibility is 62.8% of that amount, or $401.68, payable from his share of the common residence proceeds.

b. Driver’s License and Driver’s Education

114Ms. Booth claims $125.00 for the issuance of Kellsey’s driver’s license, and the costs of driver’s education which was $650.

115The latter expense is clearly allowable under s. 7 of the Guidelines, as it is within the definition of “educational programs that meet the child’s particular needs” as set out in s. 7(1)(d). Mr. Howser’s 62.8% share of that expense is $408.20, again payable from his share of the net proceeds of the common residence.

116The amount of $125 is for the issuance of the driver’s license, and does not fit within the definitions of any of the items capable of proportionate sharing under s. 7(1) of the Guidelines. That expense is disallowed.

c. School Clothing and Snowboarding Clothing Expenses

117Ms. Booth has provided a number of receipts for school clothing and clothing for snowboarding which total $460. Clothing for a child is not an extraordinary expense for the education of the child and is also not included in the base child support payable by Mr. Howser. No evidence was provided as to why the snowboarding is an extraordinary extracurricular activity, rather than one which is again covered by based guideline child support. These expenses are disallowed.

118Accordingly, Mr. Howser owes the sum of $809.88 for section 7 expenses for Kellsey, payable from his share of the net proceeds of the common residence.

(d) Is the Applicant entitled to ongoing and retroactive spousal support payable by the Respondent?

119I have already determined that income is not to be imputed to the Applicant for child support purposes; as the criteria for imputation of income for child support purposes are also applicable to spousal support, this finding stands for the purposes of determination of spousal support: see Rilli v. Rilli, [2006] O.J. No. 2142 (S.C.J.) and Perino v. Perino, 2007 CanLII 46919 (ON SC), [2007] O.J. No. 4298 (S.C.J.). I specifically find that based upon my observations of the Applicant and the evidence led at this trial, including the medical reports, the acceptance of the Applicant for Canada Pension Plan disability benefits as well as the receipt of the motor vehicle award including a loss of income claim, that the Applicant is unable to become self sufficient beyond her former CPP income in the amount of nearly $12,000 per annum.

120Mr. Cozzi, on behalf of Mr. Howser raises again the issue of financial disclosure by Ms. Booth as a bar to her claim for spousal support. I had already covered this at trial and earlier in these reasons for judgment. I had allowed Ms. Booth to withdraw her consent to withdraw her spousal support claim based upon her comportment on the witness stand and her apparent inability to understand the consent. We were able to establish at trial Ms. Booth’s income throughout; indeed, Mr. Howser’s counsel did not allege that she was making undeclared income; nor did he cross examine her about this. We were able to determine the income of Ms. Booth’s partner from her testimony and Mr. Cozzi relied upon this evidence in his closing submissions. There is no basis for dismissing Ms. Booth’s claim for spousal support based upon her failure to file a financial statement as earlier discussed.

121The major outstanding issue concerning the entitlement to spousal support, accordingly, is the fact that Ms. Booth presently resides with her new partner, William Harper. Mr. Harper makes between $69,000 and $75,000 per annum; either way, the combined income of Mr. Harper and Ms. Booth is well in excess of that of Mr. Howser. Mr. Cozzi states in his submissions that this militates against an order for spousal support.

122Mr. Cozzi states that Ms. Booth’s standard of living is well beyond that of Mr. Howser; based upon the fact that her family income including that of her partner is well in excess of $85,000 per annum, she should be disentitled to spousal support. He based this upon s. 33(9)(a), (b) and (f) of the Family Law Act which read as follows:

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

a) the dependant’s and respondent’s current assets and means;

b) the assets and means that the dependant and respondent are likely to have in the future;

f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

123Mr. Cozzi notes that a court may take into account the fact of cohabitation by the claimant in a new relationship in determining entitlement and quantum of spousal support: see Horlock v. Horlock (1984), 1984 CanLII 4783 (ON CA), 42 R.F.L. (2d) 164 (Ont. C.A.) and Juvatopolos v. Juvatopolos (2005), 2005 CanLII 35677 (ON CA), 19 R.F.L. (6th) 76 (Ont. C.A.).

124It may very well be that Ms. Booth is presently enjoying a comfortable standard of living. However, the standards of living are not the only issue to be taken into account. I must have regard to the purposes of a spousal support award as set out in s. 33(8) of the Family Law Act, which reads as follows:

(8) An order for the support of a spouse should,

a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

b) share the economic burden of child support equitably;

c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

125The major issue in this case is outlined in paragraph 33(8)(a) of the above section, insofar as Ms. Booth has suffered a serious economic loss as a result of this relationship, and the decisions made by both spouses during their cohabitation. She decided with the encouragement of the Respondent not to place her funds realized from her motor vehicle accident in an income earning structured settlement which would, presumably, still be earning income today. She placed the money into the common residence which was jointly owned; soon after she did that, the relationship came to an end. Part of that claim was acknowledged by both parties to be a loss of income claim, and was to replace future income, although the breakdown of the damages award was not provided at trial. This is clearly to me a compensatory claim, and not a claim based upon means and needs as discussed by Mr. Cozzi in his submissions.

126Under such circumstances, cohabitation with another individual and the comparative lifestyles of the parties are not as important as it would be as with a means and needs claim. It is to be noted that Horlock is a means and needs case and in any event, the court noted that a new common law relationship is not necessarily a bar to support. Finally, I note that at the time of trial, Ms. Booth had resided with her partner for less than three years and as such, had no claim for maintenance from him were the relationship to break down. From the evidence given, this relationship is not particularly strong, and there has been at least one separation in the past.

127As Ms. Booth gave up her structured settlement and the income that would presently be produced through that means, I find that she is entitled to a compensatory claim for support.

128The other issue raised was the date of cohabitation between the parties. In fact, the evidence of both of the parties was not that far apart; Ms. Booth stated that the parties commenced cohabitation in 1986; Mr. Howser stated that the commencement of cohabitation was actually somewhere between 1987 and 1988 when the parties moved in with Mr. Howser’s brother. I find that the parties moved in together in 1988 and that the period of cohabitation for spousal support purposes is 17 years.

129Under the Spousal Support Advisory Guidelines, Mr. Howser would pay spousal support in a range of between $664 and $885 per month with a midpoint amount of $774 per month: see the Guideline calculation attached as Schedule “A” to these Reasons for Judgment. However, it is my view that periodic support is not in these parties’ best interests. It is in both their interests that there be some sort of clean break so that they can get on with their lives. Moreover, a lump sum amount of support takes into account the fact that the Applicant is being compensated for the loss of a lump sum amount of support. Finally, a lump sum award can be used to deal with the fact that I do wish to take into account Ms. Booth’s present circumstances and her present standard of living.

130At the midpoint figure of the SSAG calculation attached, the lump sum award for Ms. Booth would be $87,772. I feel this would be excessive under the circumstances. Part of the responsibility for the decisions made during marriage resulting in her loss was hers. She presently enjoys a comfortable standard of living and no longer has a dependent daughter (although as a practical matter, I am sure that Kellsey will continue to live under the Applicant’s roof and will be supported to one extent or another by the Applicant and her partner). I am accordingly awarding a lump sum amount of spousal support in the amount of $40,000 payable from the Respondent’s share of the net proceeds of the matrimonial home. This is a figure that provides the Applicant with some compensation for her losses suffered as a result of the marriage, yet reflects her role in the dissipation of her motor vehicle accident funds, as well as her present standard of living compared to that of the Respondent.

(e) Is the Respondent entitled to reimbursement for one half of the cost of an appraisal obtained by him pursuant to the temporary order of Maddelena J. dated July 24, 2007?

131Based upon the submissions of the Respondent, he spent $530 on an appraisal of the home pursuant to the order of Maddelena J. made on July 24, 2007. That order stated that the “Respondent shall pay the costs up front for the opinion of value or certified appraisal and the Applicant shall adjust and contribute to half of the cost, at the conclusion of this file.”

132The Applicant notes in her submissions that the Respondent had claimed the appraisal costs on his income tax return for that year; as well she states that she had already obtained an appraisal. For these reasons, she does not want to reimburse the Respondent for his $530 cost of the appraisal.

133Regarding the first issue, the Respondent may have claimed for this in his income tax return, but the Applicant did not cross examine him on this issue, and the amount of the tax savings was not canvassed or proven. The fact that it was claimed on his income taxes does not affect the order, which is that the cost of the appraisal would be adjusted for in the final payment to be made to the Applicant in this matter.

134The second issue was known when the order was made. The appraisal that the Applicant obtained was done in October, 2005, and the fact that this was done does not affect the order made, which was that the Applicant reimburse the Respondent for one half of the costs of the appraisal.

135Accordingly, there will be a credit to the Respondent in the amount of $265 being one half of the costs of the appraisal obtained by the Respondent under the order noted above.

Order

136Accordingly, there will be a final order to go as follows:

a. There will be a declaration that the Applicant is entitled to a constructive trust in respect of the Respondent’s net proceeds of the sale of the common residence in the amount of $25,132.34, and that shall be satisfied by payment of the sum of $25,132.34 along with 30.4% of the interest earned on the trust funds from the date of deposit to the date of disbursement of these funds.

b. The Respondent shall pay arrears of child support to the Applicant from his share of the net proceeds of the common residence as follows:

(i) In respect of retroactive base guideline child support unpaid by the Respondent, the sum of $5,436;

(ii) In respect of section 7 expenses connected with Kellsey, the sum of $809.88;

c. The Respondent shall pay the Applicant lump sum spousal support in the amount of $40,000, which shall be payable to the Applicant from his share of the net proceeds of the common residence. No periodic spousal support is payable by the Respondent to the Applicant.

d. The remaining amount of the funds held in trust after payment of the above amounts shall be paid to the Respondent.

e. The Respondent’s claim for repayment of the $10,000 holdback provided to the purchasers of the common residence on closing is dismissed.

f. The Applicant’s claim for ongoing child support is dismissed and periodic child support shall cease as of November 30, 2011 as the child is no longer a dependent of the parties within the meaning of the Family Law Act;

g. The Respondent shall receive a credit of $265 along with any child support paid after November 30, 2011 pursuant to the temporary order of Maddelena J. dated January 31, 2008, which amounts shall be deducted from the payments due and owing to the Applicant under paragraphs a, b and c above.

137The parties may speak to the issue of costs by way of written submissions. The Applicant shall provide written submissions within 20 days of the date of release of these reasons for judgment, which shall be no greater than 10 pages in length, not including any offers to settle and costs outlines attached. The Respondent to have a further 15 days after service of the appellant’s costs submissions to provide written submissions as to costs on the same terms.

McDERMOT J.

Released: July 11, 2012

Footnotes

1. 1R.S.O. 1990, c. F.3
2. 2O. Reg 391/97
3. 3In 2009, while Mr. Howser’s line 150 income was $30,489.8, his actual income from employment was actually $40,404.41. Mr. Howser achieved this reduced income by writing off the expenses of the common residence as an expense when, in fact, the in-law suite was not actually rented out. Ms. Booth has objected to this, and Mr. Howser’s 2009 income will be discussed later in these reasons for judgment.