ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-1856

DATE: 2014/04/03

BETWEEN:

P.D. Applicant

– and –

R.S. Respondent

Michael A. Chambers, for the Applicant

Respondent representing herself

HEARD: September 30, October 1, 2, 3, 2013 at Ottawa

REASONS FOR JUDGMENT

MINNEMA J.

[1] This was an application by the husband, P.D., seeking a divorce, equalization of Net Family Property including the sale of the matrimonial home, and an accounting regarding certain financial transactions since separation. The Respondent wife, R.S., was in agreement with those requests, except for the sale of the home. She was also seeking current and retroactive spousal support, exclusive possession of the matrimonial home, an unequal division of the Net Family Property such that she could retain the home, and retroactive ‘adult-child support’ for their child, N.D., born […], 1990. R.S.’s request for a constructive trust was also addressed.

Issues

[2] All of the claims set out above were issues in this trial. With a few exceptions that will be noted, the Net Family Properties of the parties were not significant points of contention. The main issues were the quantum and retroactivity of spousal support and whether R.S. should receive more than half the difference between the net family properties.

Background Facts

[3] The Respondent R.S.’s date of birth is […], 1968. Her family was of a military background. They moved to Orléans, Ontario, just north-east of Ottawa, in the summer of 1980 when she was twelve years old. She was immediately approached by M.H. to babysit her three children so that M.H. and her husband, the Applicant, P.D., born on […], 1949, could go out for an evening. The children were P.D.1, T.D. and K.D., born in the years 1973, 1976 and 1978 respectively. R.S. agreed. Although she was young to babysit three children, M.H. and her husband were not going to be far away.

[4] Afterwards, M.H. began to regularly enlist R.S. to help her care for the children, even when she herself was at home. Over the next five years, R.S. became quite close to M.H. and the children. She and M.H. would often have tea together and they became friends. The family would, at times, take her with them on vacations to help with the childcare.

[5] R.S. turned 17 years old on December 1, 1985, over five years after first meeting the P.D./H. family. Forty-five days later, on January 26, 1986, M.H. died suddenly from a heart issue.

[6] M.H.’s extended family, including her husband Mr. P.D., relied extensively on R.S. to care for the children during this very difficult time. For the next two weeks, R.S. said she did not leave the P.D. house. Afterwards, R.S.’s involvement with the family took up where it had left off, although her main point of adult contact was, of course, Mr. P.D.. She continued to look after the children for him and began having tea with him, as she had with M.H..

[7] Mr. P.D. initiated a physical relationship that started only a few months later. R.S. was still 17 years old and he was 36 years old at the time. They worked at hiding their relationship from R.S.’s parents and from Mr. P.D.’s children. R.S. had completed a placement through a high school co-op working with disabled children and, along those lines; she had planned to go to Toronto to Humber College upon graduating high school to study early education for children with disabilities. Those plans changed. The parties began to cohabitate. For a while, Mr. P.D. paid a peer/acquaintance of R.S.’s to have it appear as if R.S. lived with her and not with him. Mr. P.D. was a police officer with the R[…] (“R[...]”) and was concerned about what would happen if it was discovered that he was cohabiting with a minor. Some months later, on July 1, 1986, the facade was dropped and the parties ‘officially’ began living together. They have agreed that the later date is their ‘date of cohabitation’ for the purposes of this litigation.

[8] Following her mother’s death, Mr. P.D.’s oldest child, P.D.1, then about 12 years of age, was put in the care of her maternal grandmother. R.S. was therefore responsible for the care of the younger boys, T.D. and K.D., ages two and five, while Mr. P.D. worked.

[9] The house Mr. P.D. shared with his diseased wife at 1097 St. Lucia Place in Orléans, Ontario was sold. Mr. P.D. and R.S. chose to have a new home built. That house at 1701 S[...] Street in Ottawa, Ontario was bought by Mr. P.D. on November 25, 1986. R.S. said the reason it was not put in both their names was because as a minor she could not hold title. Mr. P.D. claimed there was no discussion about ownership. In any event, the purchase price was financed by the sale proceeds from his previous home, a death benefit and a mortgage. When they moved in, all new furniture and appliances were purchased and paid for by Mr. P.D..

[10] Mr. P.D. still worked for the R[...] as an instructor at the P[…] College. At some point in 1986, he changed positions internally to work in the war crimes investigations unit. This new position required travel for extended periods away from Ottawa.

[11] In early 1987, R.S. went back to the co-op placement she had during high school and resumed working part-time with disabled children. She eventually became a supply teacher in the classroom. She said she was unable to work full-time as Mr. P.D. wanted her home with the children, especially when he travelled for work. She indicated that she quit this job in June of 1988 at his request.

[12] R.S. said that the initial delay to getting married was that she was a minor and her parents would not give their required consent. She considered herself to be engaged since December 1, 1986, when she turned 18 years old. For some time Mr. P.D. had a mistaken belief that a re-marriage would disqualify him from a widower’s benefit he was receiving. Once that was cleared up, the parties married on May 28, 1989.

[13] In the early 1980s, R.S. went to university part time at night. She said she could not go full-time because Mr. P.D. had to travel for his job. They discussed the possibility of her going full-time but, as the financial reality was that they would need to downsize their home to be able to afford it, they decided against it.

[14] In 1990, the parties discussed having a child. Coincidentally, Mr. P.D.’s daughter, P.D.1, then 16 years old, had a child on June 6, 1990. She named the baby N.D.. Although she tried, P.D.1 was in no condition or position to care for the child. She was having some difficulty with drug use and the criminal behaviour often associated with it. On September 21, 1990, after P.D.1 and N.D. visited with the parties, R.S. offered to look after the baby for the weekend and P.D.1 agreed. With other issues to deal with, P.D.1 did not seek the return of N.D. for some time and, as it turned out, the child remained in the care of the parties thereafter. On January 14, 1991, P.D.1 signed a document giving guardianship rights of N.D. to Mr. P.D. and R.S.. Over the years P.D.1 would, at times, make overtures to have N.D. returned to her. This caused some friction between the parties. Mr. P.D. wanted to see his daughter P.D.1 do well and therefore, at times, encouraged and supported her efforts when R.S. did not think it was appropriate. However, P.D.1 never quite got her life together in time for it to benefit the child and, as such, N.D. was treated as child of the parties. This was formalized by her adoption much later, on February 19, 1999, when she was nine years old.

[15] Mr. P.D. decided to leave the R[...] in 1991, after he did not obtain a liaison officer position that he was interested in that would have included an international posting. He obtained a position with the Ontario Ministry of [...] as a regional inspector, with a large eastern Ontario territory. That job ended five years later, in 1996, as a result of cutbacks.

[16] During that time, the relationship between the parties was experiencing difficulty. R.S. indicated that there was a sense that Mr. P.D. saw her role within the marriage as a “maid with benefits”, meaning that her job was to do the childcare, cooking and housekeeping, as well as to satisfy Mr. P.D. in the bedroom. He insisted that she not be involved in family finances or in decisions regarding “his” family, notwithstanding that they were married and she was the primary caregiver for T.D., K.D. and N.D.. R.S. said that she was young compared to him and vulnerable, as she was not working and was estranged from her family. If she argued with his authority, he would threaten divorce and, at times, would pack her suitcase and take her to a hotel. After staying a night she would need to beg him to be allowed to come back. He would, at times, take her car keys away from her. Letters written by Mr. P.D. supported her view of the relationship during this time.

[17] Also around this time, R.S. said that she suspected that Mr. P.D. and his mother were moving around assets, suggesting that this was designed to limit her sharing in them upon any subsequent breakup. Indeed, Mr. P.D. did buy two condominiums in his name. He indicated that all of the funding came from his mother; it was only for her benefit and that he was holding them for her to assist her. He indicated that these properties were not financed with the parties’ money. These properties had long been sold by the date of separation. It was not established that any money was diverted to Mr. P.D.’s mother. While R.S. said that she felt that there was a lot of bizarre shifting of money and ownership back then, she acknowledged that she was not clear as to how it related to the property issues in this case.

[18] After Mr. P.D.’s employment with the Ministry of [...] ended around 1996, he obtained a job with the [...] Agency (“[...] Agency). He worked briefly in Burundi, Africa. R.S. was approximately 28 years old. She indicated that this development created a positive shift in their relationship. While Mr. P.D. had previously excluded her from all financial matters and decisions, she said that with him living abroad she had to become involved or else, for example, bills would not get paid.

[19] When Mr. P.D. was offered a family posting for [...] Agency in Rwanda to work on the […] Tribunal, he asked R.S. if she wanted to go. Again, she saw this as a very positive development in their relationship. They decided together. Only the parties and N.D., then around seven years old, went. Mr. P.D.’s sons, T.D. and K.D., who were by then around 20 and 18 respectively, stayed in Canada.

[20] They were in Rwanda in 1997 and 1998. Following that, they came back to Ottawa. They had rented out the S[...] house when they left for Rwanda and decided to therefore rent in Ottawa themselves. Mr. P.D. found what he called his first “hourly wage” jobs, being in charge of security for the Commissionaires at the […] Centre and working part-time teaching public speaking at the University of [...].

[21] Around this time, the family received a financial set-back. Mr. P.D. had failed to file his income tax for several years while abroad. In 1998, he received a tax bill from Revenue Canada although the actual amount of the bill was not supported by any documentation. R.S. thought the bill was approximately $100,000. Mr. P.D. recalled it was closer to $50,000. He said it was paid by re-mortgaging the S[...] property, although, it is not clear when that happened.

[22] Mr. P.D. then accepted a position with […] Hotels in Whistler, B.C., leaving Ottawa in January of 1999. He was there for six months before he brought R.S. and N.D. with him. He then took a position as a regional representative with B.C. […], with a large territory along the Pacific coast. R.S. worked at an elementary school for the year she was in Whistler, the same school N.D. went to, as a special assistant providing one-on-one teaching in a kindergarten class.

[23] Mr. P.D. then received a contract job offer from the International Committee of the R.1[...] in 2000. This offer involved his working in Geneva, Switzerland. R.S. fully participated in the decision in his accepting this job. They moved in December of 2000 and lived in France while Mr. P.D. worked in Geneva a short distance away. This was a two-year contract, which was renewed twice, for a year each time. They were there until the summer of 2004. N.D. went to an International School. As a foreigner, R.S. indicated that she was unable to work.

[24] During this time, Mr. P.D.’s oldest child, P.D.1, had another baby. R.S. was interested in taking the child, as she was N.D.’s sister. N.D. was then around 12 years old. Mr. P.D., then around 53 years old, was not interested, seeing his role more as a grandfather. With P.D.1 still struggling with her life, this child was cared for within the Quebec child protection regime and eventually adopted. R.S. took a role in that process as best she could from a distance, advocating for some relationship or contact with the family and, in particular, between N.D. and her sibling. This process for this child continued for some time, even after the parties separated, until Mr. P.D. asked R.S. to end her involvement indicating that she was no longer part of the family.

[25] Also during this time when they lived in France, Mr. P.D.’s mother fell ill. As I understood it, R.S. went to Canada sometime between September and December of 2003, to help her and advocate for her proper care. This was even though there was evidence of past friction between R.S. and her mother-in-law, as the latter had not approved of R.S. or the marriage.

[26] Mr. P.D., still with the R.1[...], was offered an opportunity to work in Pretoria, South Africa, in the summer of 2004. He accepted this contract/placement and, again, the parties decided together. While based in Pretoria, Mr. P.D.’s work involved travel outside of South Africa. The home they lived in was provided by the R.1[...] and had all the amenities, including a pool, grounds keepers and maid service. They were able to save a significant sum of money during this time, putting what they would have been required to pay for rent aside in a bank account. R.S. could not work in South Africa but volunteered with services that dealt with abandoned babies and street children.

[27] A comment here about the evidence on the property at 1701 S[...]. As touched on above, it was purchased by Mr. P.D. in his name alone before marriage. The other evidence was as follows:

(a) The purchase date was November 25, 1986 for $163,900 and it had a mortgage on that date of $75,000. At the date of marriage in 1989, the value was still the same and the mortgage stood at $72,974. A mortgage amending agreement on August 21, 1992 indicated that the mortgage at that time was $64,458. It had been rented and the parties did not live in it since they went to Rwanda in 1997.

(b) Mr. P.D. suggested that when they “came back”, which I took to mean that when they moved back to Canada in 2007 per the chronology that follows, this property was still rented out and then it was subsequently sold. However, R.S. produced a Geowarehouse Report from Teranet and cross-examined Mr. P.D. on it. I find that the property was sold on July 30, 2004 and not sometime in 2007 and that the sale price was $308,000.

(c) R.S. was involved with the family finances by this time and indicated that the property netted approximately $95,000 and that amount made its way into their finances. Mr. P.D. would not agree to that amount, although he was evasive in response to R.S.’s questions. He said that he was “unaware of these figures” and avoided her question about how the property would have come to secure what she calculated would have been a large mortgage given the difference between the sale price and her view of the net sale proceeds. R.S. said that there was a $200,000 mortgage on it when sold, although there was no documentation to support that and it was not her property. Mr. P.D. deflected these questions. He simply said that he sold the property because of tax advice.

(d) When R.S. asked Mr. P.D. if he was obliged to sell the property at that time in 2004 because of other properties he owned (it was not established in the evidence that he owned other properties at that time), the tax debt noted above and other undefined accrued debt, Mr. P.D. would only say that his accountant told him that it did not make sense to keep the property. When R.S. asked him whether he could explain the equity, Mr. P.D. simply said, “I don’t have the figures”. He provided no Statement of Adjustments or other evidence about the sale.

(e) Despite the above, in her evidence R.S. indicated that she could only suggest that most of the equity in the S[...] house was lost because of Mr. P.D.’s huge tax arrears.

[28] There was an indication in January of 2007 that the R.1[...] was not going to renew Mr. P.D.’s contract, as it was seeking to reduce costs. He negotiated a six month extension that involved his going to Cameroon, a country in west-central Africa, on the condition that R.S. and N.D. could stay in Pretoria so that N.D. could finish school. The R.1[...], as well as paying for the accommodations in South Africa, was also paying for 90 percent of N.D.’s school.

[29] R.S. identified this time as when she knew that the marriage was over. Despite the difficult start and her limited role in almost all but domestic duties up until 1996, there was no noteworthy evidence of marital difficulties from 1996 up until that time.

[30] At the end of June 2007, Mr. P.D.’s last contract with the R.1[...] expired and the family moved back to Canada. On July 24, 2007, they purchased a home at [...] Place in Ottawa for $193,760.

[31] Mr. P.D.’s was entitled to a R.1[...] pension that he began receiving immediately. A portion of it was available to be taken out to purchase a home, a special consideration in recognition that R.1[...] employees often had to work abroad for many years. Although difficult to follow in the documentation, according to the parties the purchase price and closing costs for the […] Place property came entirely from the pension withdrawal of $91,133, along with the money that they had saved. That money included what had been set aside when they did not have to pay rent in South Africa and what was left over from the proceeds from the sale of the S[...] property. There was also a mortgage on the property securing a line of credit, although it had only been drawn on to the amount of $19,407 at the time of separation, just five months later.

[32] Shortly after repatriating to Canada, Mr. P.D. had a number of employment opportunities. One was with I[...], the international police organization based in France. The other was with the L.P[...] in Ottawa as the Deputy Director (the “P[...] job”). R.S. wanted the former, indicating that it paid better and would bring her back to France where she had recently spent four years and had made social connections.

[33] As noted above, R.S. said that she saw the end of the marriage as imminent in the first half of that year and with the spectre of separation around them, Mr. P.D. asked R.S. if she would stay with him if he took the I[...] position. She said “yes". In October of 2007, Mr. P.D. decided to take the P[...] job instead. He said he wanted to establish roots and work in Ottawa. He said he did not want to re-pack and that they had spent large amounts of money storing their belongings over the years. Lastly, he said that the choice of where they lived seemed to him to be a poor reason for them to stay together.

[34] Mr. P.D. indicated that he had a heart attack around this time, although there was little evidence about how serious it was or whether it had any lasting impact.

[35] Shortly afterwards, on January 1, 2008, the parties separated. Mr. P.D. left […] Place. R.S. stayed in the home with N.D.. Since their “official” cohabitation date, the parties had been together over 21 years.

... (continues verbatim through the remainder of the judgment)

Mr. Justice Timothy Minnema

Date: April 3, 2014

Released: April 3, 2014

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