NEWMARKET

COURT FILE NO.: FC-12-40553-00

DATE: 20151110

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Joanne Gibson
Applicant

– and –

Douglas Mead
Respondent

Helen M. McCullough, for the Applicant

Ryan G. Gillissie, for the Respondent

HEARD: May 28 and 29, 2015, and June 1, 2, and 3, 2015

DECISION ON CHILD SUPPORT, SPOUSAL SUPPORT AND UNJUST ENRICHMENT

SUTHERLAND J.:

Background

[1] The applicant, Joanne Gibson (“Applicant” or “Applicant/Mother”) and the respondent, Douglas Mead (“Respondent” or “Respondent/Father”) met in April/May 1990. The Applicant, prior to meeting the Respondent, lived in the city of Toronto, Ontario. She was previously married for approximately one and a half years. After the end of her marital relationship, she moved to Keswick, Ontario to visit family and live with her sister. The Respondent was working full time in Toronto. The Applicant lived with her sister for approximately one year and then towards the end of 1990, the Respondent moved in with the Applicant and her sister. In 1991, the Respondent and Applicant moved together into a small home on Lake Drive in Keswick. In 1991, when the Respondent and Applicant moved together on Lake Drive, neither one of them were working and they were both on social assistance. The Applicant became pregnant. The Applicant and Respondent agreed that they needed a bigger home and they moved into a two bedroom home across the street.

[2] Their first child, Michelle Mead (“Michelle”), was born December 2, 1992. After the birth of Michelle, the Applicant did not work and stayed at home to take care of Michelle full time.

[3] In November 1993, the Applicant, Respondent and Michelle moved to a home on Tampa Drive, Keswick, Ontario owned by the Respondent and his father (341 Tampa Drive, Keswick, Ontario) (the “Tampa Property”). The Respondent’s father loaned the Respondent $5,000 to aid him in purchasing the Tampa Property. The family lived in this Tampa Property.

[4] From 1993 to 1995, the relationship between the Applicant and Respondent was not going well. They were prone to “slap matches” as described by the Applicant. On November 22, 1995, their second child, David Mead (“David”) was born. It is the Applicant’s evidence that while she was pregnant with David, the Respondent told her that he was having an affair with a woman at work and he left the home and moved in with this woman. The Respondent was gone for months. The Applicant’s sister stayed with her while she was pregnant with David and to help take care of Michelle. During this time period, the Applicant indicates that she was scared and was not certain whether the Respondent was going to stay in the relationship her or if their relationship ended. Once the Respondent left, the Applicant, in her evidence, indicated she had no income and was forced to go on social assistance and that she was on social assistance for approximately one year. In 1996, the Applicant and the Respondent reconciled, and he moved back into the home on Tampa Drive.

[5] On April 15, 1997, the Applicant and the Respondent entered into an amended separation agreement. The amended separation agreement amended a previous separation agreement dated February 10, 1997.

[6] The Respondent bought his father’s interest in the Tampa Property on April 3, 2002.

[7] The Applicant and the Respondent along with their children, Michelle and David (the “Family”), resided in the Tampa Property until it was sold by the Respondent on August 3, 2006.

[8] On August 3, 2006, the Respondent purchased 285 Annsheila Drive, Keswick, Ontario (“Annsheila Property”). On the date of purchase, the Respondent received a mortgage in favour of CIBC Mortgages Inc. in the amount of $191,250. On July 7, 2010, the Respondent entered into a secured line of credit in favour of CIBC in the amount of $50,000. On May 3, 2011, an on-demand line of credit was secured upon the Annsheila Property in the amount of $88,600. On October 24, 2011, the mortgage in favour of CIBC Mortgages Inc. was increased to consolidate the mortgage and the two lines of credit for a total of $258,000.

[9] The Family resided in the Annsheila Property until the Respondent left the property on June 21, 2011.

[10] The Respondent moved back into the Annsheila Property on September 12, 2011, and the Applicant vacated the property.

[11] In early September 2011, just before the Applicant vacated the Annsheila Property, the Respondent took back a van which the Applicant was driving and she had no vehicle for transportation for months after leaving the Annsheila Property on September 12, 2011. After leaving the Annsheila Property, the Applicant resided at a girlfriend’s home sleeping on the couch for approximately three months. The Applicant was able to obtain an apartment for herself in December 2011, and her son, David, moved in with her in the new apartment. Michelle was sometimes living with the Respondent and sometimes living on her own. During this period, Michelle was in and out of the Respondent’s home. In December 2011, Michelle was nineteen years old and David was sixteen years old.

[12] The Applicant commenced her application on April 20, 2012. She amended her application on January 30, 2013. The amended application removed the claims for equalization of net family property, exclusive possession of the matrimonial home, being the Annsheila Property, exclusive possession of contents and sale of family property, and put forth a claim for unjust enrichment, and, as such, seeks relief based on joint family venture.

Issues

[13] The issues flowing from this trial are as follows:

(a) The date of separation. The Applicant states that the date of separation is June 21, 2011, and the Respondent states January 5, 1997.

(b) Child support for David and Michelle, if any.

(c) Spousal support.

(d) Unjust enrichment/joint family venture.

Date of Separation

[14] The Applicant has put forth that the date of separation is June 21, 2011. The Respondent has put forth the date of separation as January 5, 1997. In support of the Respondent’s position, he refers to the amended separation agreement dated April 15, 1997 executed between the Applicant and the Respondent. In that amended separation agreement, it states that the Applicant and the Respondent have been living separate and apart since January 5, 1997 and that the effective date of the amended separation agreement is April 15, 1997. The amended separation agreement further has the Respondent paying child support of $865 per month and $6,000 per year in regular bi-monthly payments for medical, child care and extraordinary expenses for the two children of the marriage, namely Michelle and David. It also states that the children shall continue to reside in the home and that the Respondent shall have the children every other weekend in his care. It further states that the Respondent shall be allowed to have telephone access to the children. The amended separation agreement also takes precedence to an agreement dated February 10, 1997. This February 10, 1997 agreement was not produced in evidence by either of the parties. Later on, the amount of child support paid by the Respondent increased to $225 per week.

[15] The amended separation agreement was not witnessed. It did not comply therefore with Section 55(1) of the Family Law Act[^1]. However, failing to comply with the provisions of Section 55(1) of the Family Law Act in of itself does not make the amended separation agreement unenforceable.[^2]

[16] The Respondent in his evidence also indicates that an incident that took place in March 1997 which was a crystalizing moment for him where he determined in his own mind that the relationship with the Applicant was at an end. This incident took place with the Respondent had a vehicle in the driveway of the residence on a carjack. He was working under the vehicle and in his evidence he indicates that the Applicant attempted to kick the jack onto the ground whereby the vehicle would land upon him. The Applicant’s evidence is that she attempted to kick him and not the carjack. Notwithstanding who is correct in the interpretation of the Applicant’s behaviour, the fact is that in the evidence of the Respondent, it was in his mind that the incident in March 1997 was the crystalizing event where he realized that his relationship with the Applicant was at an end.

[17] However, the behavior of the Respondent after March 1997 does not indicate that the relationship was at an end. After March 1997, the Respondent lived in the Tampa Property. The evidence is that he had numerous affairs with other women while in a relationship with the Applicant. But notwithstanding this fact, he still lived in the home and treated himself in a marital-like relationship with the Applicant. They went on trips together. They attended family events together. They attended weddings together as a couple. They did events with the children, together. He came home and slept in the home. The Applicant and the Respondent had occasional sexual relations.

[18] The Respondent and the Applicant also exchanged gifts on birthdays and Christmas and exchanged Valentine’s Day cards and anniversary cards.

[19] Notwithstanding the submissions of the Respondent’s solicitor, where he stated that it was the intention of the Respondent to live separate from the Applicant but continue to maintain a family relationship with her, I find that the behaviour and conduct of the Respondent shows indicia of a common law relationship. From reviewing the evidence as a whole and the conduct of the Applicant and the Respondent in the relationship, I find that the Applicant and the Respondent were in a common law relationship up to June 21, 2011. I accept the evidence of the Applicant. Her evidence on this point has been consistent throughout the trial. In contrast, I find the evidence of the Respondent being inconsistent. He has stated that the date of separation is January 5, 1997, then also stated that the crystalizing event for him was in March 1997, and then further has stated that he continued to live in the home and act as a “couple” with the Applicant notwithstanding his belief that the separation was back in 1997. I find that the evidence of the Respondent, on this point, to be inconsistent and unreliable.

[Text continues exactly as in the decision…]

Released: November 10, 2015
Justice P.W. Sutherland