ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Smith v. Pleau, 2015 ONSC 2723
COURT FILE NO.: FS-12-274 (BRT)
DATE: 2014-05-05
BETWEEN:
Natasha Smith
Paul D. Amey, Counsel for the Applicant
Applicant
- and -
Michael Pleau
Lloyd St. Amand, Counsel for the Respondent
Respondent
HEARD: January 14, 15, 16, 2015
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] Natasha Smith and Michael Pleau commenced cohabitation in February 2006. Two children were born to their relationship: Emillee Pleau, on March 10, 2007 and Matthew Pleau, on March 18, 2010. Separation occurred on May 9, 2011.
[2] The parties were able to resolve parenting and related issues. They share joint custody of the children. Emillee and Matthew reside primarily with their mother but spend considerable time with their father. This arrangement has been in place since separation and reflects the parenting plan during cohabitation. Despite their differences, the parties have been able to focus on the best interests of their children. Mr. Pleau now pays guideline child support to Ms. Smith. A final order was granted on these issues at the commencement of the trial pursuant to partial minutes of settlement.
[3] The issues requiring determination pertain to the apportionment of extraordinary expenses, retroactive child support and spousal support, both ongoing and retroactive. Entitlement to spousal support by Ms. Smith is conceded by Mr. Pleau. The dispute is with respect to her income, quantum and duration. Constructive trust and unjust enrichment are the focus of the property issues.
[4] Having previously heard and decided a motion for temporary child and spousal support, at the commencement of the trial I inquired if either party had any concern with my assignment as the trial judge. Both counsel reported there were no objections.
Litigation
[5] As hereafter discussed, the parties had an arrangement for approximately one year following separation. Ms. Smith consulted Mr. Amey and the within application was issued on June 27, 2012. She sought the following relief:
a) custody of the children;
b) child support;
c) spousal support;
d) health care coverage;
e) life insurance designation;
f) a 50% constructive trust interest in the family residence and the investment property;
g) in the alternative, an unjust enrichment award in the amount of $50,000.
[6] Mr. Pleau consulted a solicitor following service of the application. He would subsequently retain Mr. St. Amand prior to the trial. In his answer, Mr. Pleau agreed with Ms. Smith’s claims for child support, health care coverage and life insurance designation “in part”. He opposed her other claims and requested an order for:
a) joint custody;
b) requiring Ms. Smith to remove his name as co-borrower of her automobile loan; and,
c) re-imbursement of monies advanced by him in the net amount of $14,500.
[1] A motion by Ms. Smith resulted in a temporary order I granted on July 12, 2013 as follows:
a) Mr. Pleau to pay guideline child support to Ms. Smith, commencing August 1, 2013 in the monthly amount of $1245 on his reported annual income of $86,000.
b) Mr. Pleau to pay guideline child support to Ms. Smith for the period of June 1, 2012 to July 1, 2013 of $4025 forthwith, credit being given for voluntary payments;
c) Mr. Pleau to pay 75% of section 7 expenses;
d) Mr. Pleau to pay spousal support to Ms. Smith:
i) from June 1, 2012 to February 1, 2013, the monthly amount of $1200, all payable forthwith;
ii) $900 monthly, from March 1, 2013.; and
e) annual income disclosure in the usual manner.
[2] Following a review of written submissions from counsel, I granted a further order on November 26, 2013 directing Mr. Pleau to pay $3600 inclusive for the costs of the motion.
[3] As a result of that order, Mr. Pleau was in an immediate support arrears position. Despite being aware of the terms of the order, Mr. Pleau did not make any voluntary support payments. Rather, he waited on the Family Responsibility Office. Their standard delay meant enforcement did not commence until November 2013. A 50% garnishment of Mr. Pleau’s pay cheque has occurred since that month. The support arrears, as of December 8, 2014 were $20,645.87. He has not paid the cost award.
[4] Mr. Pleau did not provide disclosure of his 2013 income as required by the order until January 2015, shortly before trial. At the same time he provided a statement of his 2014 employment earnings.
The Parties
i) Natasha Smith
[5] Ms. Smith is 34 years of age. She currently resides with the children in a single family residence at 19 Reade Street in Brantford. The property was purchased in June 2012 with the assistance of her parents.
[6] After completing high school, Ms. Smith enrolled in a business marketing program at Mohawk College. She left college prior to completion.
[7] At the time cohabitation commenced in February 2006, Ms. Smith was 25 years of age. She was then employed as a waitress at a local restaurant. During her first pregnancy, Ms. Smith enrolled in a real estate course, completing same in August 2007, a month after the birth of Emillee. She has been a licensed real estate agent since, associated with the Brantford Re/Max brokerage firm.
[8] Ms. Smith has been engaged as a full time realtor since obtaining her license, save for a brief period of time before and after the birth of Matthew in 2010. As hereafter discussed, Ms. Smith’s income as a realtor has been inconsistent, losing money, at least for income tax purposes, in most years. At the present time, her estimated annual income is $24,000.
ii) Michael Pleau
[9] Mr. Pleau is 44 years of age. He resides in the former family residence at 707 Colborne Street in Brantford. He purchased this property in 2005, prior to cohabitation.
[10] After completing high school, Mr. Pleau entered the work force. He obtained employment with Toyota Canada, at the Cambridge plant, in 2001. Mr. Pleau transferred to the Woodstock facility in 2013 to save on commuting and spend more time with the children. His employment income at present is $107,700 per annum.
Cohabitation
[11] During the five years of cohabitation, both parties were employed. They contributed their earnings for family and household expenses. Mr. Pleau, given his higher income, paid the majority of such expenses. They maintained separate bank accounts until the investment property was acquired.
[12] In 2007, the parties had a discussion regarding Ms. Smith’s career aspirations. Mr. Pleau supported her decision to enroll in a real estate program. After obtaining her license, Ms. Smith embarked on a career as a realtor on a full time basis. Mr. Pleau continued his employment at Toyota Canada.
[13] The parties shared parenting responsibilities. Mr. Pleau took a brief paternity leave following the birth of Emillee and almost one year after Matthew was born. Toyota Canada supplemented his employment insurance to 85 per cent of his prior employment income. During his paternity leave, Mr. Pleau was actively involved in parenting, allowing Ms. Smith to spend more time as a realtor.
[14] Throughout the period of cohabitation, the parties and their children resided in the family residence on Colborne Street. Mr. Pleau paid the mortgage, taxes and related expenses. Ms. Smith was responsible for the utilities, groceries and daycare. Ms. Smith also purchased furniture and contributed to the cost of renovations to the house and for landscaping of approximately $6000. Mr. Pleau paid a greater amount, undisclosed in the evidence. Both parties also participated in the work, hiring a contractor for part of the project.
[15] In December 2009, the parties purchased a 2010 Toyota Venza vehicle. The ownership was registered in both names. Mr. Pleau paid the deposit at the time of purchase, using his line of credit. The balance of approximately $34,000 was financed over four years. Ms. Smith was responsible for the monthly payments of $488. The debt was paid in full by January 2014. This vehicle was used for the family and by Ms. Smith in her real estate business. The vehicle remains in the possession of Ms. Smith. At trial, Mr. Pleau reported his agreement to transfer his interest to Ms. Smith.
[16] An investment property was purchased in September 2009, known as 66-68 Wadsworth Street in Brantford. Title was registered in the name of Mr. Pleau. The purchase price was $141,000 with a mortgage obtained for $136,914.
[17] Ms. Smith’s parents contributed $10,000 initially, perhaps to assist in the mortgage approval. This loan was repaid from the bank account set up for this property. Ms. Smith contributed the real estate commission earned as the purchaser’s realtor. Mr. Pleau used his line of credit, registered against the family residence, to pay the deposit on the property.
[18] At the time of acquiring the property, there were two tenants, each paying $900 monthly. There was a surplus of income after expenses.
[19] The parties established a joint bank account for the investment property, depositing rental income and paying property expenses. Both were involved in collecting rent, finding tenants, paying expenses and hiring contractors when work was required on the building. Mr. Pleau took over after separation.
[20] In January 2012, after separation, one unit became vacant. Work to this unit was required to make it habitable, said by Mr. Pleau to have an estimated cost of $20,000. The work has not been done and the unit remains vacant. In result, there is no longer a profit earned from the property. The present appraised value is said to be $90,000. The mortgage balance is about $121,000.
[21] Ms. Smith says there were discussions as to transferring ownership of the family residence and investment property to both jointly. Mr. Pleau says Ms. Smith never requested an ownership interest.
[22] The parties discussed marriage. Mr. Pleau gave Ms. Smith an engagement ring in June 2007.
Separation
[23] The reasons for separation are not relevant to the issues requiring determination. It is only necessary to recognize there were difficulties in the relationship.
[24] On May 9, 2011 Ms. Smith and the children moved out of the family residence while Mr. Pleau was at work. They stayed with a friend for a week. The parties then discussed living arrangements. Ms. Smith and the children returned to the family residence while Mr. Pleau moved into a vacant unit in the investment property. This arrangement continued until June 2012.
[25] During this period, Mr. Pleau continued to pay the mortgage, taxes and some utilities for the residence in the total amount of approximately $1080 per month. Ms. Smith paid the balance of household expense and all of the family expenses, including groceries and other needs of the children.
[26] Ms. Smith says she requested child and spousal support from Mr. Pleau but that he refused to pay.
[27] Mr. Pleau’s version of their discussion is different. He says there was an agreement that Ms. Smith would rent the house from him for $860 monthly. The rent, and utilities, up to $220, was not to be paid. Rather, this was considered a monthly contribution by him of $1080, being an amount he ascertained as appropriate by reviewing a Child Support Guideline chart. Mr. Pleau further says there was no discussion about spousal support.
[28] In June 2012, Ms. Smith purchased her own residence for $182,000, with a mortgage of $178,000. Her parents contributed the funds for the down payment and are guarantors on the mortgage.
[29] Mr. Pleau returned to the family residence and began paying $1080 monthly to Ms. Smith on June 1, 2012. Payments continued until the motion in July 2013.
[30] Ms. Smith’s parents reside in Caledonia. Ms. Smith is contemplating selling her residence in Brantford and moving with the children to Caledonia. She would continue her real estate work in Brantford.
[31] In August 2011, the parties had a discussion about their debts. On August 22, 2011 Ms. Smith delivered a cheque to Mr. Pleau for $7500. She says the purpose of the payment was to equalize debt. He says this was the balance owing by her on a prior vehicle loan.
Incomes
i) Ms. Smith
[32] Evidence tendered as to Ms. Smith’s income from real estate commissions was as follows:
Year
Gross Commissions
Expenses
Net Income(Loss)
2009
$23,970
$25,446
(1476)
2010
35,695
42,388
(6693)
2011
97,435
44,640
52,795
2012
24,153
28,781
(4628)
2013
29,683
23,915
5768
2014
69,723
45,294 (est)
24,429 (est)
[33] Ms. Smith also claims business use of home expenses to reduce her taxable income in profitable years. Expenses include items not requiring cash payment, including capital cost allowance on her vehicle. Such are recognized as legitimate business expense as the vehicle, for example, will require replacement.
[34] Ms. Smith anticipates her future income should be at least $24,000 and hopefully, higher with experience.
ii) Mr. Pleau
[35] Mr. Pleau’s employment income was as follows:
Year
Income
2009
$78,347
2010
57,349 (paternity leave)
2011
99,218
2012
104,144
2013
99,719 (transfer)
2014
107,770
[36] In addition, Mr. Pleau claimed rental income (loss), for income tax purposes, regarding the investment property, namely:
2011
$ 9
2012
(157)
2013
758
[37] Of some interest, Mr. Pleau also reported the family residence as rental property when occupied by Ms. Smith and the children, thus claiming an income (loss) as follows:
2011
($1581)
2012
( 347)
Discussion and Analysis
i) Overview
[38] To their credit, the parties resolved the more difficult issues of custody and access. Their parenting plan, during cohabitation and since separation, involves sharing responsibilities. The children benefit from their parents co-operation.
[39] The financial issues, save ongoing guideline child support, were not resolved. From listening to them testify and on my review of the evidence I conclude there are two reasons why these relatively straightforward issues require determination:
i) Mr. Pleau’s control over finances; and,
ii) Mr. Pleau remains upset Ms. Smith ended their relationship.
[40] From the date of separation, Mr. Pleau embarked on a plan to protect his financial resources and limit Ms. Smith’s ability to move on.
[41] The agreement for Ms. Smith and the children to occupy the family residence was reasonable. The financial arrangement imposed by Mr. Pleau was not. He decided to contribute what he determined was guideline child support by providing a credit for rent and utilities. But Mr. Pleau did not disclose his income at the time. Indeed, disclosure has been problematic throughout this case.
[42] Mr. Pleau claimed to be unaware of Ms. Smith’s income, neglecting the obvious fact her income had been revealed on his own tax return until separation. Mr. Pleau had to know her financial circumstances and that the family required greater financial support from him.
[43] Mr. Pleau refused to pay support after the temporary order was granted, being content to wait on the Family Responsibility Office to garnish his pay cheque. The four month delay caused considerable hardship for Ms. Smith and the children.
[44] Refusing to renovate the vacant rental unit reveals Mr. Pleau’s litigation strategy. He says he did not want to increase his debt even though there was ample room on his line of credit. At minimal expense, the unit could have been rented and the investment property would have generated a profit. By not doing the renovation, the property value declined, a perceived benefit to him on Ms. Smith’s constructive trust claim.
[45] The support issues are straightforward. While constructive trust claims can be difficult to assess, the amount involved in this case is not a large one. The expense of a trial cannot be justified.
ii) Incomes
[46] Findings regarding the parties incomes are necessary before addressing the support issues.
[47] Counsel are in agreement as to Mr. Pleau’s income in 2014 at $107,700. This represents his actual employment earnings at Toyota Canada. I accept that amount for support calculations.
[48] Mr. Pleau’s line 150 income should be higher with profit from the investment property. At the very least, his income cannot be artificially reduced by any purported loss on the property.
[49] Ms. Smith’s income is less clear. She estimated 2014 income at $24,000. On my review of the evidence, particularly the commission statements, I conclude this is a reasonable amount.
[50] Mr. St. Amand’s suggestion of grossing up Ms. Smith’s income to $30,000, due to notional deductions, is rejected. Such would be contrary to Schedule III of the Child Support Guidelines. The vehicle will need to be replaced. Only capital cost allowance claims for real property necessitate exclusion in determining income for support purposes.
[51] Ms. Smith and Mr. Pleau discussed her career plains in 2007. He was then supportive. Now Mr. Pleau says Ms. Smith should abandon her career as a realtor and find other employment. The decision on pursuing a career in real estate was appropriate given Ms. Smith’s work history and the parenting responsibilities that were about to arise. Few realtors enjoy immediate financial success. It takes time. By 2011, Mr. Smith had achieved financial reward for her efforts. But then the separation occurred.
[52] Separation had no impact on Mr. Pleau’s income. In fact, his earnings increased. However, separation had an obvious impact for Ms. Smith. Despite their sharing of parental responsibilities, Ms. Smith had the primary duty for child care on a daily basis. That would limit her availability to work and thus restricted her ability to generate income.
[53] By 2014, Ms. Smith has seen a recovery in real estate commissions. Further improvement is expected in years to come.
[54] Whether Ms. Smith ought abandon her real estate career is more properly the subject on a future motion to change. In my view, Ms. Smith has three options:
i) continue as a realtor;
ii) revert to her former career as a waitress; or,
iii) return to college for retraining.
[55] At the present time, an income of $24,000 exceeds that in the second and third options.
[56] In result, I find Ms. Smith’s income to be $24,000 for the purposes of support calculations.
iii) Child Support
[57] The guideline child support claim was resolved. I understood counsel to say Mr. Pleau will be paying $1505 monthly, commencing January 1, 2015.
[58] Two issues require determination, namely:
i) apportionment of section 7 extraordinary expenses; and
ii) retroactive child support.
[59] Given my findings as to incomes of $24,000 and $107,700, Mr. Pleau is required to pay 82 per cent of section 7 expenses.
[60] The child support obligation arose on separation in May 2011. For the next year, Mr. Pleau contributed the purported equivalent of $1080 monthly. He reported this amount as being taken from the Child Support Guideline chart. He was incorrect, either by failing to consider his actual income or misreading the chart. A monthly payment of $1080 would be for an income of $73,000. Mr. Pleau’s income in 2011 was $99,218. He underpaid child support from the outset.
[61] I would be prepared to recalculate child support as of the date of separation given the misrepresentations of income. Child support is the right of the child. Mr. Amey, however, restricts the claim to June 2012 when Ms. Smith and the children moved out of the family residence. At that point in time, Mr. Pleau was actually paying $1080 monthly and would do so until July 2013.
[62] My order of July 12, 2013 required Mr. Pleau to pay a further $4025 for the period from June 1, 2012 to July 1, 2013 and pay ongoing support of $1245, commencing August 1, 2013. The support award was based on Mr. Pleau’s report of his income at $86,000.
[63] On his actual income of $99,218 in 2011 and $104,144 in 2012, Mr. Pleau should have been paying at least $1416 monthly. I calculate his underpayment as follows:
a) From June 1, 2012 to July 1, 2013, $1416 – 1080 = $336 X 13 = $4368; and
b) From August 1, 2013 to December 1, 2014, $1416 – 1245 = $171 X 13 = $2907.
The shortfall is $7275, less $4025 as ordered, being $3250.
[64] Mr. St. Amand submits that while Mr. Pleau’s child support payments may not have been correct, such was initially appropriate and reasonable. He further argues there was no suggestion the children’s financial needs were not met. With respect, I disagree.
[65] The underpayment of child support shifted the burden to Ms. Smith. Mr. Pleau never properly disclosed his income until the trial. He either deliberately reported a lesser income or, at least, made no effort to ascertain his actual income. As Mr. Pleau acknowledged in cross-examination, he can access his paystubs and year to date income electronically at any time. In these circumstances, fairness dictates a retroactive adjustment.
[66] In result, Mr. Pleau shall pay to Ms. Smith $3250 as a retroactive adjustment for guideline child support, payable forthwith. Such is in addition to any monies still owing on the temporary order.
iv) Spousal Support
[67] Two issues require determination with respect to Ms. Smith’s claim for spousal support, being:
i) quantum of ongoing and time period for same; and,
ii) retroactive adjustment.
a) Ongoing Spousal Support
[68] Mr. Pleau concedes Ms. Smith is entitled to some ongoing spousal support. Mr. St. Amand suggests $300 monthly to end, or at least be reviewable, in June 2016. This, he says, would be when the period of separation matches the period of cohabitation.
[69] Mr. Amey submits there ought be $1050 paid monthly for an indefinite period.
[70] Entitlement in this case is based on compensatory and non-compensatory principles as defined by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. While the income disparity of the parties since separation is comparable to what it was when they commenced cohabitation, the critical fact here is the decision to have children.
[71] Ms. Smith’s employment or career advancement was delayed as she is the parent primarily responsible for child care. This delay will continue, at least in the immediate future. Need results from the separation, including the loss of Mr. Pleau’s income for the family unit and its impact on her standard of living.
[72] In this case, I see no reason to depart from the Spousal Support Advisory Guidelines. See: Fisher v. Fisher, 2008 ONCA 11, and Gray v. Gray, 2014 ONCA 659. Mr. Pleau’s proposal is less than the lowest SSAG range. It is not appropriate as it would continue to penalize Ms. Smith and further delay any reasonable prospects for self-sufficiency. The mid range SSAG is, in my view, reasonable for ongoing spousal support provided there is a correction for prior underpayment.
[73] Mr. Amey provided an SSAG printout on incomes of $24,000 and $109,000, closest to my findings. Mid range is stated to be $1059. Accordingly, ongoing spousal support shall be paid by Mr. Pleau to Ms. Smith in the monthly amount of $1050, commencing January 1, 2015.
[74] A time limited order or provision for review is not appropriate given the child support order and the need for permanency. See: Leskun v. Leskun, 2006 SCC 25, at para. 39. Rather, the support order should be for an indefinite period of time. A motion to change based on a material change in circumstances is the more appropriate procedure to consider spousal support in the future.
b) Retroactive Adjustment
[75] Similar principles apply as with the retroactive child support analysis.
[76] Mr. Pleau did not pay spousal support prior to my order of July 12, 2013. The obligation then imposed was $1200 monthly from June 1, 2012 to February 1, 2013 and $900 monthly commencing March 1, 2013.
[77] I am not inclined to recalculate spousal support for the period from June 1, 2012 to February 1, 2013. Monthly support of $1200 was reasonably close to mid range SSAG given the incomes of the parties in 2011 and 2012.
[78] The second time period from March 1, 2013 to December 1, 2014 demands adjustment given Mr. Pleau’s misrepresentation as to his income. Mid range SSAG was approximately $1384, not $900 as ordered. The adjustment is in the additional amount of $10,648 ($1304 – 900 = 484 X 22 months). Mr. Pleau shall pay this amount to Ms. Smith forthwith. It is in addition to any monies still owing on the temporary order.
v) Constructive Trust
[79] The Supreme Court of Canada has introduced the concept “joint family venture” in the discussion of constructive trust claims in family law cases. The court emphasized the continued requirement of establishing the three elements of unjust enrichment:
i) an enrichment to the respondent;
ii) a corresponding deprivation to the applicant; and,
iii) the absence of juristic reason for the enrichment.
Relevant evidentiary factors were said to include:
i) mutual effort;
ii) economic integration;
iii) actual intent; and,
iv) priority of family
See: Kerr v. Baranow, 2011 SCC 10.
[86] Other relevant principles apply to the discussion in this case. The contribution need not be financial or relate to the acquisition of the property but, rather, a sufficient nexus may exist where the contribution pertains to the preservation, maintenance and improvement of the property. See: Sorochan v. Sorochan (1986), 1986 CanLII 23 (SCC), 2 R.F.L. (3d) 225 (S.C.C.). Further, enrichment and deprivation may result from the provision of domestic services. See: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980 (S.C.C.).
[87] During their five years of cohabitation, the parties kept most of their finances separate. Yet, they established a joint bank account for the investment property and they jointly owned a vehicle. Both contributed funds for family and household expenses, essentially proportionate to their incomes. There was discussion of marriage and Mr. Pleau gave Ms. Smith an engagement ring. There was also discussion, I find, regarding the transfer of title of the real property to joint ownership.
[88] The family residence was acquired by Mr. Pleau prior to cohabitation with a minimal down payment. It became the home for all four members of the family unit. Ms. Smith contributed labour, including domestic services, to maintain the property. She also provided funds towards upkeep and renovations. So did Mr. Pleau. They did it together.
[89] The investment property was acquired by the efforts of both parties. Mr. Pleau used the equity in the family residence to make the down payment, using his line of credit. Ms. Smith was the realtor and contributed her commission. Both were involved in searching for tenants, collecting rent, paying expenses and arranging for repairs. They used a joint account for this venture. Mr. Pleau now says he purchased the property for “my children”. He meant to say, I suggest, “our children” or “our family”.
[90] A motor vehicle was purchased and registered in both names. It was used by Ms. Smith for her work as a realtor and for the family. Mr. Pleau paid the deposit, again using his line of credit. Ms. Smith paid the monthly instalments.
[91] The parties shared child care responsibilities. Mr. Pleau took paternity leaves that allowed Ms. Smith to continue working.
[92] Post separation, the parties equalized their debt. Ms. Smith paid $7500 to Mr. Pleau, no doubt prior to obtaining legal advice. Mr. Pleau continued his employment without interruption. Ms. Smith’s career was limited by increased child care duties.
[93] The evidence, in my view, has all the markings of a joint family venture. The nature of the relationship, functions within the family unit, individual and joint contribution and all other matters indicate an economic partnership. The only missing factors are marriage and joint ownership of real property. The factors, however, as noted above, have been established. The benefit or enrichment, and the corresponding deprivation are clear and obvious. There can be no juristic reason for the enrichment. I conclude the elements of unjust enrichment are likewise established.
[94] Mr. Pleau has attempted, post separation, to structure his financial position in a manner as to attempt to defeat Ms. Smith’s rightful claim. He imposed an arrangement following separation that had the obvious impact of impoverishing Ms. Smith. In failing to provide proper financial support, Mr. Pleau was prepared to jeopardize their children’s needs. He placed his own in priority.
[95] Of further concern, Mr. Pleau has allowed the investment property to decline in value. The property was profitable on separation. Refusing to repair the vacant unit, even though he had the resources, was unreasonable and, in my view, vindictive.
[96] By the time of trial, Mr. Pleau remained in considerable arrears regarding his support obligations. He could have paid but chose not to do so.
[97] A litigant cannot be allowed to conduct his financial affairs in such a manner as to allow a legitimate claim to be defeated.
[98] Ms. Smith’s entitlement crystallized on the date of separation. Mr. Pleau continued to benefit from her contribution thereafter. He had the resources to address this claim on the date of separation. He will now have to deal with it at greater expense.
[99] In result, I reject the appraisals of the real property, tendered by Mr. Pleau, as a basis to determine the claim. At the very least, Ms. Smith’s contributions maintained and preserved the properties. I find there was, in fact, an increase in equity by the date of separation. Her domestic services and child care duties also are factors.
[100] A monetary award, rather than proprietary, is the appropriate remedy. In all of the circumstances, I conclude a fair and reasonable award is $15,000 in addition to Mr. Pleau transferring his interest in the 2010 Toyota Venza vehicle. I so order.
Summary
[101] At the commencement of the trial, a final order was granted pursuant to partial Minutes of Settlement regarding custody, access and ongoing guideline child support. For the above reasons, a further final order is granted on the following terms:
a) Mr. Pleau shall pay 82 per cent of the children’s extraordinary expenses;
b) Mr. Pleau shall pay to Ms. Smith $3250 as and for a retroactive child support adjustment, payable forthwith;
c) Mr. Pleau shall pay spousal support to Ms. Smith in the monthly amount of $1050, commencing January 1, 2015, on his income of $107,700 and her income of $24,000.
d) Mr. Pleau shall pay to Ms. Smith $10,648 as and for a retroactive spousal support adjustment, payable forthwith;
e) Mr. Pleau shall execute any documents necessary to transfer ownership of the 2010 Toyota Venza vehicle to Ms. Smith;
f) Mr. Pleau shall pay to Ms. Smith $15,000;
g) the parties shall make the usual annual income disclosure, in accordance with the Child Support Guidelines, commencing June 1, 2015; and,
h) a support deduction order shall issue.
[102] If the parties are unable to resolve the issue of costs, brief written submissions, along with any offers to settle or other relevant documents, shall be delivered to my chambers in Cayuga within 30 days of the release of this decision.
Gordon, J.
Released: May 5, 2015
CITATION: Smith v. Pleau, 2015 ONSC 2723
COURT FILE NO.: FS-12-274 (BRT)
DATE: 2015-05-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natasha Smith
Applicant
- and -
Michael Pleau
Respondent
REASONS FOR JUDGMENT
Gordon, J.
Released: May 5, 2015