CITATION: Crawford v. Crawford, 2016 ONSC 2144

COURT FILE NO.: 43/13 (Orangeville) and 144/14

DATE: 2016-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TERRI CRAWFORD

Applicant

Suzanne E. Deliscar, for the Applicant

• and -

BRUCE RANDAL CRAWFORD and THE ESTATE OF ARCHIE CRAWFORD (Deceased)

Respondents

Larry W. Haskell, for the Respondents

HEARD: January 19 and 20, 2016

REASONS FOR JUDGMENT

FRAGOMENI J.

[1] The Applicant wife, Terri Crawford, seeks relief pursuant to the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, F.3 ("Family Law Act"). The wife also advances a claim for quantum meruit as against the Estate of Archie Crawford, deceased.

[2] The two actions were tried together and the evidentiary record at trial forms the basis of all claims made by the wife.

[3] The trial issues are as follows:

1. whether spousal support should be awarded retroactive to the date of separation;

2. whether the property municipally located at 796001 3rd Line RR#3, Mansfield, Ontario, is a matrimonial home; and

3. whether the wife has established a quantum meruit claim as against the Estate of Archie Crawford.

Trial Evidence

The Applicant, Terri Crawford ("Terri")

[4] The parties were married on September 14, 2002. They initially separated on February 12, 2012.

[5] Terri met her husband Bruce Crawford ("Bruce") in 1998. Terri had been previously married and was divorced from her first husband in 1999. She had separated from her first husband in July 1998.

[6] Terri and Bruce started living together in a home owned by Terri's parents and brother. This home was located at 90 Rustic Crescent in Orangeville.

[7] The parties had intended to stay in Orangeville, however, Bruce's father's ailing health became a factor. Bruce's father, Archie Crawford ("Archie"), wished to remain in his own home in the country. Archie's home was situated at 796001 3rd Line, R.R.#3, Mansfield, Ontario.

[8] Although Terri was not on title to the Rustic home property, she was entitled to a portion of the equity in the event it was sold. In fact, the home was sold in 2003/2004 and Terri received about $17,000 for her share. Following the sale of the Rustic property Terri and Bruce moved in with Archie.

[9] Terri and Bruce were concerned about Archie living in the country on his own in light of his ailing health.

[10] Terri was aware that Archie had a will and that Bruce was the only beneficiary under it. It was her understanding that once Archie died, she and Bruce would sell that home and buy a place more suited to their own needs.

[11] During the time they lived with Archie, the following five children were also living there at various times prior to their separation in 2012:

1. Krystal Crawford – now age 25 – Bruce's daughter

2. Tyler Crawford – now age 23 – Terri's son

3. Jessie Crawford – now age 22 – Bruce's son

4. Candace Crawford ("Candace") – now age 22 – Terri's daughter

5. Katrina Crawford – now age 19, Terri's daughter

[12] Terri testified that she left Archie's home in 2012. The Application filed by Terri and dated April 4, 2013 states that the parties separated on February 12, 2012. The Amended Application filed by Terri on July 30, 2013 also sets out a separation date of February 12, 2012.

[13] After she left Archie's home in February 2012, Bruce asked her to go back. In April, she did go back but left the home again in October 2012. After October 2012 she went back and forth to the house until February 2013.

Terri's Employment

[14] Terri was employed at Shoppers Drug Mart as a cashier in 1998. In 2000/2001 she took an online training course and became qualified as a Pharmacy Technician. She worked full-time in that capacity until 2008.

Robbery at Shoppers Drug Mart

[15] On February 12, 2009, a very tragic and unfortunate incident occurred when she was working the nightshift. The store was robbed. The robber had a gun. The robber did not want money, he wanted drugs. Terri emptied a tray of drugs into the robber's bag. The robber took the drugs and left.

[16] The police were called and she provided a statement.

[17] The robbery had a permanent and significant impact on Terri. She could not leave the house for months. She engaged in counselling and took medication. The robbery "took over her life". She was unable to go back to work at Shoppers Drug Mart. She felt like she was letting her family down. She became suicidal. She felt like a failure, worthless.

[18] Terri sought medical help with Dr. Anna Davenport, her family doctor. Dr. Davenport diagnosed her with post-traumatic stress disorder ("PTSD"). Terri also saw Maureen Taggart, a counsellor. Psychologist Dr. Hoath also saw her for a couple of years. WSIB was involved from the outset and they paid for her medication.

[19] As a result of her difficult financial situation, Terri is no longer able to afford counselling or therapy at this time.

[20] After the robbery and her not being able to return to work at Shoppers Drug Mart, Terri re-trained as a bookkeeper. In such a job she would be able to avoid dealing with the public. She works now mostly from home as a bookkeeper and puts in, on average, ten hours per week.

Interim Agreement for Spousal Support

[21] On June 9, 2014, the parties entered into the following agreement for interim spousal support:

2 (a) Commencing on July 1, 2013 and on the first day of each subsequent month the Husband shall pay to the Wife the sum of $478.00 per month as payment of interim spousal support. The parties agree that the total sum owing in retroactive support as of December 31st, 2013 is $2,868.00 (July 2013 to December, 2013) which will be paid at the rate of $100.00 per month commencing January 1st, 2014. The Husband shall provide the Wife, upon execution of this Agreement, post-dated cheques commencing January 1st, 2014 up to and including December 1st, 2014 with a further twelve post-dated cheques to be provided annually thereafter for so long as spousal support is payable. The spousal support shall continue pursuant to this Agreement for so long as is agreed or until a Court Order is made or further Separation agreement with respect to spousal support.

(b) The Husband and Wife both acknowledge and agree that this Agreement is made on a without prejudice basis, such that either party may proceed with a Motion to vary the amount or term of spousal support or the granting of spousal support itself. Specifically, the parties agree that it is open to either of them to argue that the income of the other is greater than stated and that the other does or is capable of earning a greater income than has been represented in the Court proceedings.

[22] One of the paragraphs in the pre-amble states, "And whereas unhappy differences have arisen between the Husband and the Wife and they have been living separate and apart since on or about the 12th day of February, 2012."

[23] Bruce has been paying spousal support in accordance with this agreement.

[24] Terri is now in receipt of CPP Disability and is receiving $923 per month. The CPP was approved on May 6, 2015 with an effective date of August 2014.

[25] Terri's plans are to go back to full-time employment. However, at this time she is unable to do so. Her PTSD is still ongoing and she stated that even after all this time, "some days are good and some days are not good".

Terri's Relationship with Archie

[26] After the parties moved in with Archie, Terri became Archie's primary caregiver. She started taking him to all of his medical appointments. At that time she was still working full-time hours at Shoppers Drug Mart. By 2007/2008, Archie needed more full-time care. Consequently, Terri decided to work part-time hours. Terri was additionally responsible for the five children who were also living at Archie's home with them. As Terri stated in her evidence, "she did everything for everybody".

[27] Bruce was always working full-time and worked long hours. Terri described Bruce as a really good provider. He worked hard as a truck driver and large equipment operator. He always took extra shifts.

[28] Archie's condition and failing health became more severe, which required Terri to do more for him. Archie suffered from the following five ailments:

1. skin cancer;

2. crippling arthritis;

3. brittle bones;

4. stomach bleeding; and

5. health issues with his eyes.

[29] Archie would have one to five/six medical appointments per month. In the last year or so, Terri would go with Archie once every two weeks to these appointments, sometimes for eight hours at a time.

[30] Since Archie's appointments were her first priority, she reduced her hours at Shoppers Drug Mart, which allowed Bruce to continue working his long hours.

[31] Terri estimated that she was 95 percent responsible for Archie's care. Krystal, Candace and Bruce would help out at times.

[32] Terri also assisted Archie with paying his expenses. Archie gave Terri his debit card number. Terri used this account to pay for Archie's expenses and bills. She also used it for family matters as needed and for anything she herself needed.

[33] Archie was aware of the fact that Terri took money out of Archie's bank account to go gambling at the casinos. Terri paid back the money she took out for that purpose.

[34] Archie told Terri that the money he received was theirs too. It would be going to her and Bruce anyway.

[35] Bruce did not know Terri was taking money out of Archie's account for gambling purposes.

Sale of Highway 89 Property

[36] The property next door to Archie's home on Highway 89 was purchased by Bruce during the marriage. Only Bruce's name was on title. Bruce told Terri it did not matter that her name was not on title as the property was theirs together, 50-50.

[37] Bruce sold the Highway 89 property in March 2014 without telling her. She only found out that he sold it in June 2014.

[38] The Highway 89 property is vacant land. As a result, the mortgage to buy it was registered against Archie's home. Terri received nothing from the sale of the Highway 89 property.

Cross-Examination of Terri

[39] Terri stated that they were married on September 14, 2002, at Archie's home. They separated initially on February 12, 2012 and then again in October 2012.

[40] After October 2012 and until February 2013 she was at Archie's house off and on. They have not lived together since February 2013.

[41] Terri was asked about the number of appointments she took Archie to over the period from 2003 to 2012. She acknowledged that she took Archie to the following number of appointments:

1. 52 appointments with Dr. Matthews in Stayner over a five to six year period;

2. more than five appointments with his dentist per year;

3. two appointments per year with his eye doctor; and

4. two appointments per year for his skin doctor.

[42] Terri took Archie on an average of two to five appointments per month. In the last couple of years of his life she also took Archie to hospital appointments.

[43] Terri stated she was on call for Archie 24 hours a day, 7 days a week. In addition to all of the appointments she did his laundry, dressed him, drove and cooked for him. She did it all.

[44] Terri did acknowledge that the mortgage registered on Archie's home was their responsibility. The mortgage was in the sum of $165,000, less the $70,000 realized on the sale of the Highway 89 property.

[45] Tab 1 of the husband's Document Brief is the Citi Master Card Account in Bruce's name to which they both had access. At page 12 of that account, the following cash advances were noted:

Period from Nov. 26/2010 to Dec. 28/2010

1. Nov. 30/10 Cash Advance, TD Bank, Shelburne $1,001.50

2. Dec. 1/10 Cash Advance, TD Bank, Shelburne $1,001.50

3. Dec. 6/10 Cash Advance, Georgian Downs, Innisfil $ 501.50

4. Dec. 6/10 Cash Advance, Georgian Downs, Innisfil $ 501.50

5. Dec. 6/10 Cash Advance, Georgian Downs, Innisfil $ 101.50

6. Dec. 7/10 Cash Advance, TD Bank, Orangeville $1,001.50

7. Dec. 11/10 Cash Advance, Georgian Downs, Innisfil $ 201.50

8. Dec. 11/10 Cash Advance, Georgian Downs, Innisfil $ 81.50

9. Dec. 11/10 Cash Advance, TD Bank, Alliston $ 801.50

10. Dec. 19/10 Cash Advance, TD Bank, Orangeville $ 901.50

[46] During the above time period, Terri acknowledged she was in a bad depression and was gambling more than she should have. She was having a very hard time. She asked Bruce to take over the finances but he refused.

[47] Tab 2 of the Document Brief is a Peoples Credit Union Account for Archie Crawford and Terri. She used this account to pay bills. She said she did not know if she used funds from this account for gambling.

[48] Tab 3 of the Document Brief is Archie's bank account. Terri had access to it as she had his card and pin number. Archie's total income was $32,000 per year and it was deposited into this account. She mostly used this account.

[49] From January 2011 to January 2012 there were cash withdrawals from that account totalling $21,485.67. Most of the funds were used for gambling.

[50] Archie did not spend his monthly income of $2,700 per month. Archie's housing expenses were $4,000 per year for property taxes and $7,200 per year for utilities (heat and hydro). With other incidental expenses, even if he spent $15,000 per year this would leave a significant amount from his $32,000 that Terri could use for her own purposes. Terri stated however, that Archie paid income taxes on that amount. In addition, Terri paid for his medical expenses, special furniture and appliances and expenses not covered by his health plan. Furthermore, Terri bought groceries with those funds.

[51] Terri was asked in cross-examination whether she expected to get paid for all of the things she did for Archie and the family, especially since they were a family unit and Archie was her father-in-law. Terri explained that she had her own home before she moved in with Archie. She did not have to live there rent free. She moved in with Bruce to help take care of Archie. It was their matrimonial home.

[52] At Tab 2 of the Document Brief, the cash withdrawals from the joint account she had with Archie totalled $30,044.92 for the period January 2011 to June 2011.

[53] Terri acknowledged that her gambling addiction was extreme. It is for this reason that she is prepared to accept less than half of the value of the matrimonial home. With respect to the home, Terri stated that Archie told her and Bruce that the home was theirs and would continue to be theirs when he died.

Krystal Crawford

[54] Krystal is now 26 years old. Terri is her stepmother. Bruce is her biological father. Krystal was 16 or 17 years old when she lived with Terri and Bruce. She went to college in September 2008 but moved back with them in December 2008 and then did not return to college. She lived with her aunt in the spring 2009. She went back to live with her parents at Archie's home and moved out in August 2009. In November 2011 she moved back to live with her parents until April 2013. She moved out permanently in July 2013.

[55] Krystal testified that her stepmother was responsible for paying bills. Archie ran his own errands for a while but then Terri helped him. Terri helped Archie with his medical issues and took Archie to most of his appointments. She did the grocery shopping for the household.

[56] Even after the parties separated, Terri would attend at the house to care for Archie.

[57] Terri accessed Archie's debit card the most.

[58] After the robbery at Shoppers Drug Mart, Terri's demeanour changed. She became depressed. Her life was overwhelming and she could not get out of bed. She slept a lot and did not want to leave her room.

Cross-Examination

[59] Krystal used Archie's debit card occasionally but she never withdrew money from the account. Krystal very rarely used it. Most of the time Archie would give her cash if he wanted her to do any errands for him.

[60] Krystal acknowledged that Terri had a gambling problem. Terri would gamble quite a lot at night, coming home after 1:00 a.m. or 2:00 a.m. During some weeks she would go gambling several times.

Lisa Kellow

[61] Lisa Kellow ("Lisa") is a Pharmacy Technician and she worked with Terri at Shoppers Drug Mart. Lisa continues to work at Shoppers Drug Mart.

[62] With respect to the 2009 robbery, she was not on duty that day and learned about it at a later time.

[63] Lisa did not see Terri after the robbery. She was never present to see Terri's care of Archie.

[64] Lisa had no idea of Terri's gambling issues.

Betty Prince

[65] Betty Prince ("Betty") is a chiropodist. She knows Terri from the times she would bring Archie in as a patient. Ms. Prince started treating Archie in 2008. Archie would attend her office once per week or every second week. Terri would bring Archie to the appointments most of the time. She treated Archie until 2012.

Candace Crawford

[66] Candace is 23 years old and a fourth-year student at Nipissing University in North Bay. Terri is her biological mother and Bruce is her stepfather.

[67] When Candace was in grade four the family moved in to Archie's house. Her mother did all of the cleaning, laundry and cooking. Her mother took care of the financial aspects of the house.

[68] Her mother was Archie's primary caregiver for ten years. She took care of his laundry, cleaning, meals, medication, injections and everything else he needed. Terri did all of this while she worked full-time at Shoppers Drug Mart.

[69] Her mother took Archie to most of his appointments.

[70] After the 2009 robbery her mother had a hard time. There was a dynamic change in her mother, she was depressed and not herself.

[71] Prior to the robbery, her mother was very involved and interested in her children's schooling. She made dinner. She did it all. After the robbery, her mother became withdrawn and stayed in her room. She did not care as much. She was taking a lot of medication. The family dynamics changed and the children had to fend for themselves. Candace felt that the home was no longer as much fun.

[72] Candace was living in Archie's home when the parties first separated. Candace stayed in the home that summer. Her mother later returned to the house. Terri and Bruce were working on their marriage.

[73] In cross-examination, Candace acknowledged that her mother had a gambling problem. According to Candace, Terri would go to the casinos two to three nights per week.

Lynn Boily

[74] Lynn Boily ("Lynn") has known Terri and Bruce for over 20 years.

[75] Lynn described Terri as fun and outgoing. Lynn described Terri as the "secretary" for Archie's house. She confirmed that Terri and Bruce moved in to Archie's house to care for Archie.

[76] Lynn did go to Archie's house several times. When she would attend there, Terri would always be very busy.

[77] Lynn knew that Terri primarily took care of Archie even while she worked full-time.

[78] After the 2009 robbery at Shoppers Drug Mart, Terri's personality changed. She was stressed and uptight. Terri could not cope. She was often crying. She was afraid and had anxiety.

[79] Terry and Bruce separated in 2012. Terri stayed with Lynn for one to one-and-a-half months. Terri was distraught and she had money issues.

[80] Lynn understood that Terri and Bruce were living at Archie's as a married couple. Lynn therefore understood that Archie's home was their home.

Karen Harrison

[81] Karen Harrison ("Karen") met Terri in 1998. She knew Bruce before she met Terri. She visited the parties at Archie's home.

[82] Prior to the 2009 robbery, Terri was outgoing and fun. After the robbery, Terri was stressed. She was not the same. Terri was attending counselling and was taking medication. Karen thought that Terri was taking unnecessary pills, although she does not think so now.

[83] Karen stated that Terri did it all. Terri took care of Archie and did everything.

[84] Karen met Archie countless times. He was an unhealthy man.

[85] The parties separated initially in 2012. They got back together in an attempt to work things out.

[86] With respect to Archie's house, Bruce told Ms. Harrison not to worry about it because Terri was his wife.

Respondent's Evidence

Bruce Crawford

[87] Bruce confirmed his income as set out in his Financial Statement, sworn January 19, 2016, at $61,565.51 for 2015. The Financial Statement was filed as Exhibit 6 and his Net Family Property Statement was filed as Exhibit 7.

[88] Archie Crawford is his father. In 2003, Archie broke his hip and he was not as mobile as he had previously been. Prior to his broken hip, he was a very active man. After he broke his hip and as the years passed, he started to slow down. In 2008, he used a cane to walk, could still make his own breakfast and lunch.

[89] After 2009, Terri became reclusive and was often in her room. Archie fended for himself and the children helped as well. A nurse came to assist in Archie's care once a week.

[90] While living at Archie's, Archie paid for the property taxes and hydro. Bruce and Terri would pay for the food and the internet. They did not pay Archie any rent.

[91] When they moved in with Archie, Archie's house was free and clear from any mortgage. Archie's expenses were $800 per month.

[92] In Tab 1 of the Documents Brief are statements from Bruce's Citi Bank Master Card. Terri had his card. Bruce did not look at the bank statements. He trusted Terri to look after the expenses.

[93] In Tab 2 of the Documents Brief are statements from Terri and Archie's joint account.

[94] In Tab 3 of the Documents Brief are statements from the account solely in Archie's name. Terri had Archie's debit card and pin number to this account.

[95] In Exhibit 8 of the Documents Brief there is an analysis of the bank statements done by Bruce to assist the court as an aide-mémoire.

[96] From Archie and Terri's joint account the total cash withdrawals at casinos total $4,115.50 for the period of January 2011 to January 2012. The ATM withdrawals and cheques for cash total $30,044.92 for the period of January 2011 to June 2011.

[97] With respect to Tab 3 of the Document Brief Archie's account, the total sum of cash withdrawals from casinos total $4,967.65. The ATM and cheques for cash from January 2011 to January 2012 total $21,485.67.

[98] The grand total of all of these transactions is $60,000, over a period of about 18 months from January 2011 to June 2012.

[99] Exhibit 9 is the Royal Bank of Canada statement setting out, in part, the period from November 1, 2010 to November 12, 2010. On November 1, 2010, there is a deposit of $45,650 into this joint account, which represent a re-mortgaging of the Highway 89 property. By November 12, 2010, ten days later, the account is at an overdraft of $126.68.

[100] Exhibit 10 confirms that the total mortgage registered on Archie's home was $170,000.

[101] Although he knew Terri went to the casino, he had no idea how bad her gambling problem was. Only after she left did he realize how bad it was. Bruce tried to get bank records for the years prior to 2010, but it would have been expensive and some of the accounts do not give descriptions of the nature of the withdrawals.

[102] In his Financial Statement, Bruce details the total V-day debt at $219,500. The Highway 89 property sold for $130,000 which left Bruce in a negative asset position.

Contempt Motion

[103] The order of Justice Snowie, dated September 20, 2013, sets out the following order regarding the sale of the Highway 89 property: "The husband shall advise the applicant's solicitor immediately upon the sale of either properties."

[104] Bruce testified that he misunderstood what he had to do pursuant to the order. He had no intention of breaching the terms of the order. From the sale proceeds he paid debts. He paid the $40,000 for the second mortgage. He paid Archie's funeral expenses. He paid the household expenses.

[105] The PACE Mortgage is still registered on Archie's home and it is now $150,000. Bruce has been paying it down.

[106] It was common knowledge when Archie was alive that Bruce was the only beneficiary of Archie's will. Bruce told Terri so. With respect to building a house on the vacant lot, they would cross that bridge when they get to it. There was a possibility that, if finances allowed it, they would build on the vacant lot after Archie died.

[107] Bruce confirmed that Terri indeed looked after the household finances and she primarily looked after other household issues. He trusted her to look after the household expenses. He never thought she would put him in the hole he is in now.

[108] In cross-examination Bruce made the following statements:

1. when the Highway 89 property sold in March 2014, he never even told his own lawyer, Mr. Haskell;

2. he only told Mr. Haskell about the sold Highway 89 property after the collection agency notified him of the outstanding funeral expenses;

3. Bruce had no evidence to substantiate that he told Terri's lawyer about the sale;

4. the parties did separate in February 2012 but Terri moved back into their home with Archie in May 2012, in attempt to reconcile;

5. Terri moved out again in the fall after May 2012;

6. After the fall of 2012, she would then go back and forth to Archie's and at times she would sleep over;

7. Bruce considered her move out in the fall to be the final separation;

8. he acknowledged that Terri was the primary caregiver for Archie; and

9. he acknowledged Terri's behaviour changed after the Shoppers Drug Mart robbery.

POSITION OF TERRI

Spousal support

[109] Terri submits that as a result of the 2009 robbery at Shoppers Drug Mart she is a completely different person. CPP accepted her application on the basis of a disability that renders her unable to work. This disability is something that is beyond her control. Terri submits that she continues to be disabled and is therefore in need of support.

[110] Terri submits that continued support for a further period of ten years is reasonable.

[111] The parties first separated in February 2012 but the final separation was in February 2013.

Archie's Home

[112] Terri submits that this home was a matrimonial home. Archie had promised the parties that it was theirs.

[113] Archie died on November 7, 2012. The final separation of the parties occurred on February 2013. In those circumstances, the property comes within the definition of 'matrimonial home'. As of February 2013, the parties had lived in the home as husband and wife. Since Archie had died and the house was willed to Bruce, one of the parties had an interest in the property at the time of separation.

Contempt Motion

[114] Terri submits that it is clear that Bruce was in breach of the order and that the breach was wilful. There is no evidence that Bruce complied with the order. In those circumstances the wife submits that a fine would be a reasonable sanction on a finding of contempt.

Equalization

[115] Terri submits that in light of her gambling issues she is prepared to receive less than half of the value of the home. Terri submits that it would be reasonable for Bruce to be able to pay off all of the debts first. Whatever is left would then be divided 50 – 50 between them.

Quantum Meruit / Constructive Trust

[116] Terri submits that, if the court finds that the home is not a matrimonial home, she has a claim either on a quantum meruit basis or as a constructive trust.

Life Insurance / Health Benefits

[117] Terri submits that Bruce should be required to have life insurance to secure any spousal support order. He should also keep her on any health benefits available for her.

POSITION OF BRUCE

Spousal support

[118] Bruce submits that the length of marriage was only ten years and thus any support order ought to be time limited. Bruce has been paying spousal support in accordance with the Interim Agreement since July 1, 2013.

[119] Bruce acknowledged that the 2009 robbery was difficult for Terri. However, she overreacted to what happened to her. Her demeanour in court demonstrated that she is not a "shrinking violet".

[120] Bruce submits further that there is no medical information at all filed to support her claim that she cannot work at meaningful employment on a full-time basis.

[121] In light of all these circumstances Bruce asks the court to impute income for Terri in the amount of $30,000 for employment income. With the additional income of $12,000 from CPP her total income would be $42,000. With his income of $61,565.51 there would be no spousal support.

[122] Bruce also notes that he paid off all of the debts.

Equalization Of Property

[123] Bruce submits that, since his Net Family Property is a negative number, there cannot be an equalization payment. Terri's Net Family Property is nil.

Archie's Home

[124] Bruce submits that Archie's home cannot come within the definition of a 'matrimonial home'.

[125] Terri stated that the separation date was February 12, 2002, in both her Application and Amended Application.

[126] The trial evidence does not prove on a balance of probabilities that the separation date occurred after Archie's death. In those circumstances, although the parties lived in Archie's house as husband and wife, neither of them had an interest in the property at the time of separation.

Quantum Meruit

[127] Bruce submits that Terri's claim against Archie's estate on the basis of quantum meruit cannot succeed.

[128] The parties and the children all lived in Archie's house rent free. Archie paid the property taxes and hydro.

[129] Terri has benefited in those circumstances for a period of about ten years.

[130] Further, and more importantly even if she was entitled to a quantum meruit claim, Terri has been more than compensated through her significant abuse of Archie's debit account to support her gambling addiction.

Contempt Motion

[131] Bruce submits that the court should have a reasonable doubt that he intended to breach the order. Bruce testified that he was not sure what he had to do under Snowie J.'s order and thus any breach was not wilful. Further the formal order was never issued and entered.

[132] Terri knew he was selling the property and she was not prejudiced in any way from the sale. The $78,000 realized from the sale of the Highway 89 property was used to pay debts. Therefore, Terri would not have realized any funds from the sale in any event.

Analysis And Conclusion

Issue 1: Does Archie Crawford's home come within the definition of a Matrimonial Home?

[133] Section 18(1) of the Family Law Act, provides the following definition for 'matrimonial home':

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[134] There is no issue that the property was, at the time of separation, ordinarily occupied by the parties as their family residence.

[135] Bruce argues that neither party had an interest in the property at the time of separation. In Bruce's argument the date of separation becomes a critical factor.

[136] Terri argues that the final separation was in January 2013. Since Archie died on November 7, 2012 leaving the property to Bruce, Bruce had an interest in the property.

[137] I cannot accept Terri's position on this issue. The testimony of Terri and the witnesses she called in support of her claims do not establish that the date of separation is after Archie's death.

[138] Section 4 of the Family Law Act provides the following definition for 'valuation date':

1. The date the spouses separate and there is no reasonable prospect that they will resume co-habitation.

[139] I am not satisfied that the valuation date can be fixed on a date after Archie's death. The following factors are relevant to that finding:

1. in her Application dated April 4, 2013, Terri sets out the date of separation as February 12, 2012;

2. in her Amended Application filed July 30, 2013, Terri again sets out the date of separation as February 12, 2012;

3. in her Amended Application Terri sets out the following at paras. 4, and 5:

Archie always stated that house was Terri's and Bruce's to do with as they saw fit;

Although the parties' originally separated in February 2012, the Applicant had moved back into the house from June 2012 – August 2012.

4. until Archie's death on November 7, 2012, Terri continued to come regularly to the home to care for him and his medical needs, even though the parties had separated by that time; and

5. When Archie passed away on November 7, 2012, Terri returned to the property and arranged the funeral (including the luncheon afterwards) and looked after Bruce, their children and the matrimonial home as she had always done in the past.

[140] Terri also notes at pages 6 and 7 of her Amended Application that the parties separated on February 12, 2012 and attempted reconciliation multiple times up to and including the end of January 2013.

[141] Terri's trial testimony does not set out what transpired from November 7, 2012 to January 2013 regarding those attempts at reconciliation. There is no indication that they occupied the home as their family residence.

[142] Bruce's testimony is that he was of the view that the final separation was in the fall of 2012, prior to the death of his father.

[143] At its highest, the evidence of Terri and her witnesses is such that after Archie's death she attended at the house on and off for a period of time. The evidence falls short of establishing that those attendances were done for the purpose of reconciliation. The evidence also falls far short of establishing that during the time period after Archie's death the property was being ordinarily occupied by the parties as their family residence. Terri had her own residence by then.

[144] Another factor that militates against Terri's position on the valuation date is found in the June 9, 2014 temporary spousal support agreement in the third pre-amble on page 1:

And whereas unhappy differences have arisen between the husband and the wife and they have been living separate and apart since on or about the 12th day of February 2012.

[145] This is a clear acknowledgment by the parties that the February 2012 date was essentially the time period they both accepted as the separation date. This agreement is dated June 9, 2014, over 18 months after Archie's death.

[146] I am not satisfied on the evidentiary record before me that Archie's house was a matrimonial home. Though the pleadings are not evidence, issues in a proceeding are defined by pleadings. The date of separation was a serious issue to be determined by the court. However, the evidence called on the issue was not very complete or detailed, especially as it related to Terri's stated position in her pleadings that efforts to reconcile were made after Archie's death.

[147] In Spencer v. Riesberry, 2012 ONCA 418, 114 O.R. (3d) 375, Gillese J.A. sets out the following issues at paras. 32 and 33:

[32] The appellant submits that the trial judge erred in finding that the respondent did not have an interest in the property within the meaning of s. 18(1) of the FLA. He makes the following three arguments in support of this submission:

(1) the respondent's interest as a beneficiary of the SFRT was sufficient to establish an interest in the property within the meaning of s. 18(1); (2) the respondent's role as a trustee of the SFRT, combined with her beneficial interest in the SFRT, was sufficient to establish an interest in the property within the meaning of s. 18(1); and [page382] (3) enforcing the notion of the separate entities of trustee and beneficiary will defeat the desired effect of the FLA and the special treatment afforded a matrimonial home in that legislation.

[33] As I will explain, I do not accept this submission or any of the arguments advanced in support of it. 1.

[148] At paras. 37 to 39 Justice Gillese states:

[37] Unless the terms of the trust expressly provide otherwise, a beneficiary has no property interest in any specific asset of the trust, prior to or absent an appropriation of such asset to the beneficiary by the trustee: see Gennaro v. Gennaro, 1994 CanLII 7484 (ON SC), [1994] O.J. No. 183, 111 D.L.R. (4th) 379 (Unif. Fam. Ct.).

[38] In Gennaro, Vita Gennaro owned a house on Case Street. Under her will, she named her son Angelo the trustee of her estate. As trustee, Angelo was given wide powers of sale and administration. Angelo and his two siblings were the residuary beneficiaries of their mother's testamentary trust. After Ms. Gennaro died, Angelo and his wife lived in the Case Street property until they separated.

[39] Justice Steinberg held that the will did not vest any specific property in any of the heirs. No beneficiary under the trust, including Angelo, could rely on receiving a conveyance of any interest in the Case Street property. Accordingly, Angelo did not have an interest in the Case Street property within the meaning of s. 18(1) of the FLA. [page383]

[149] In all of the circumstances, therefore, Archie's home was not a matrimonial home. Bruce did not acquire an interest in the property until Archie died on November 7, 2012. On that date, the parties had separated and were not ordinarily occupying the residence as their family residence.

Issue 2: Does Terri have a Quantum Meruit claim as against the Estate of Archie Crawford or in the alternative a claim against the Estate by way of constructive or resulting trust?

[150] Terri's claim for Quantum Meruit is grounded in two ways:

1. Archie had stated his intention to transfer the property to both her and Bruce upon his death. Terri testified that Archie told them the house would be theirs; and

2. As a claim for services provided to Archie for his care, as she was his primary caregiver she ought to be compensated for those services.

[151] On either basis, Bruce submits that Terri has been more than compensated.

[152] I am not satisfied that Terri has established her entitlement to a share of the value of Archie's home at the time of his death. There are several reasons for reaching this conclusion.

[153] Terri and Bruce lived at Archie's house rent and mortgage free. Archie paid for the property taxes and utilities from the pension income he received. The balance of the funds he received were deposited into his accounts.

[154] Terri and Bruce bought the groceries and paid for the internet. There were not many other expenses associated with the home. The parties lived with Archie for a period of about ten years.

[155] A further and significant reason for concluding that Terri has been adequately compensated relates to the fact that she had access to Archie's bank accounts and took a substantial amount of money from those accounts for her own personal use. A large sum of money was used by Terri over the years to feed her gambling addiction.

[156] By her own admission Terri had a significant gambling addiction. On two bank statements provided at trial Terri could have easily used up to $60,000 for her use, even for gambling. This figure could and most likely would be much higher had the bank statements and records been available for the years prior to 2010.

[157] It is truly an unfortunate situation that Terri found herself in after the 2009 robbery at Shoppers Drug Mart. Her gambling addiction became worse and she required more funds to sustain it. Archie deposited all of his income into accounts to which Terri had access. Neither Archie nor Bruce would know what the extent of her addiction was. This is a significant factor and one that militates against her quantum meruit claim.

[158] Bruce trusted Terri to properly look after the household expenses.

[159] The use of Archie's money offsets any claim Terri may have on a quantum meruit basis or even on a constructive or resulting trust basis.

[160] Finally, even if Terri was entitled to relief under these claims, she has provided no evidence to substantiate what amount would be reasonable.

[161] Although Terri's Financial Statement, sworn June 30, 2015 states that her 50 percent share of Archie's home was $200,000, she did not file any certified appraisal reports confirming that value. There was no other evidence filed to assist the court in determining what the V-day value of Archie's home was.

[162] Terri conceded that the debts have to be deducted from the value of the home before a calculation was made as to what her share would be.

[163] Terri readily acknowledged in her trial testimony that the total debts of $219,000 ought to be paid for first to account for her gambling issue. Only the balance should be divided on a 50-50 basis with Bruce. Even if I could accept a $400,000 value for the home as set out in her Financial Statement, after deducting $219,500, real estate commission of 5 percent and real estate fees, the net value for division would only be about $155,000. Fifty percent of $155,000 would be $77,500.00.

[164] I am satisfied that even if Terri's share could be set at $77,500, for all of the reasons I set out, she has been more than compensated for the primary care of Archie.

Spousal Support

[165] The temporary support agreement dated June 9, 2014 commenced support payments to Terri on July 1, 2013 in the amount of $478.00 per month.

[166] The issue of whether Terri is able to obtain meaningful full-time employment is difficult to assess on the evidence. Terri did not file any medical reports to substantiate her position on this issue. The fact that she is receiving CPP disability payments confirms, however, that she has sufficient medical and psychological issues to qualify for government disability income.

[167] The evidence at trial was compelling with respect to Terri's change in demeanour following the February 2009 robbery at Shoppers Drug Mart. All of the witnesses corroborated Terri's testimony that after the robbery she became withdrawn, isolated and depressed.

[168] I am satisfied that the February 2009 robbery did have a significant impact on Terri's ability to work. It is now March 2016, seven years past the robbery. Bruce has been paying her spousal support since July 1, 2013.

[169] Terri testified that she does want to become self-sufficient and does not want to rely on Bruce for support or the government through disability payments. However, Terri maintains that at this time she is unable to work at a full-time level even in her new bookkeeping business.

[170] Bruce's income is $61,565.51. Bruce argues that Terri's income ought to be imputed at $30,000 plus an additional $12,000 for her CPP disability benefits. On that basis there would be no order for spousal support.

[171] There was no evidence called with respect to what effect earning an income would have on Terri's CPP benefits.

[172] I am satisfied that an income ought to be imputed to Terri in the amount of $25,000 in total. This would be about the range of income she could earn at a minimum wage job. If she could earn that amount, it is doubtful she could continue to receive CPP. However, without evidence on that issue I cannot make that finding conclusively.

[173] On the basis of those respective incomes the DivorceMate calculations set out the following range:

1. Low – $457

2. Mid – $533

3. High - $609

[174] I am satisfied that an award in the amount Bruce is presently paying would properly reflect the division of labour that the parties were engaged in during their marriage. There is no doubt that Bruce was a good provider and worked long and hard hours.

[175] Terri also worked full-time up to February 2009. While she worked full-time, she primarily took care of the household duties and cared for the children. As one witness put it, "she did it all". Additionally, she was the primary caregiver to Archie. She did most of the necessary care for Archie and I am satisfied the evidence demonstrates that. In fact, Bruce conceded that she was the one who mostly cared for Archie.

[176] Terri is in need of support and Bruce is able to pay to the extent I have ordered.

[177] I am not satisfied that Terri's position that spousal support should continue for a further ten years is appropriate.

[178] As I previously indicated, Bruce has been paying spousal support since July 1, 2013. I am satisfied that Terri wants to become self-sufficient and not rely on Bruce for indefinite support. I accept her evidence on that point.

[179] It has now been over seven years since the 2009 robbery. Though Terri has had considerable time to return to meaningful employment I am not satisfied that spousal support should be terminated at this time. Terri did not file any medical reports or medical information to assist the court in assessing the issue of her employability and the circumstances that prevent her from working full-time. Yet, the evidentiary record I have from Terri and the witnesses she called support Terri's position that the robbery did have a significant impact on her ability to work full-time.

[180] Terri was born on August 3, 1970. She is only 45 years of age and has a long working life ahead of her. I am prepared in all of the circumstances to give her some additional time to obtain meaningful employment and become self-sufficient rather than rely on Bruce indefinitely for support.

[181] In that regard, the spousal support payments will continue for a period of two years from July 1, 2016, which would make the total time period for Bruce to pay support six years (from July 1, 2013 to July 1, 2018). After July 1, 2018, the issue of spousal support can be automatically reviewed at the request of Bruce and on a motion by him on notice to Terri.

[182] During that two year period, Terri will be required to advise Bruce of the efforts she makes to obtain full-time employment. She will be required to provide him the particulars of all applications made to seek out employment. Terri will be required to make her best efforts to seek out full-time employment.

Issue: Should the court find Bruce Crawford in contempt?

[183] The order that is the subject matter of the contempt motion is Justice Snowie's order of September 20, 2013. In her endorsement, Justice Snowie ordered that the Applicant bring a separate action against the Estate of Archie Crawford to be joined with the family law action. Justice Snowie then made the following endorsement:

The H[usband] shall advise the Applicant's solicitor immediately upon the sale of either properties.

[184] The endorsement sheet indicates that Bruce was present with his lawyer, Mr. Larry Haskell.

[185] Bruce's position that he misunderstood what he had to do after selling the property is difficult to accept. The order was very simple: upon the sale of either property he was to advise Terri's solicitor. Presumably, if he had any question about it he would have asked Mr. Haskell.

[186] The evidence is that he not only failed to tell his own lawyer he sold the Highway 89 property but that he breached the order by failing to advise Terri's solicitor of the sale as well.

[187] I have considered Bruce's evidence and I do not accept it. In accordance with the three step analysis set out in R. v. W.D., I also conclude that Bruce's evidence on this point does not leave me in a state of reasonable doubt.

[188] The balance of the evidence on this issue establishes beyond a reasonable doubt that Bruce wilfully did not comply with Justice Snowie's order.

[189] Bruce submits that, even if I find that he was in contempt of that order, there was no prejudice to Terri. The proceeds of sale were used to pay off debts. Bruce did not receive any funds for his own use other than to pay off financial debts.

[190] Rule 31 of the Family Law Rules sets out the contempt of court provisions. Rule 31(5) states that the court may make the following orders if a person is found in contempt:

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order. O. Reg. 114/99, r. 31 (5).

[191] In all of the circumstances of this case and considering that all of the net proceeds of sale were used to pay debts, I am of the view that a remedy pursuant to sub-section (c) would be reasonable and appropriate as a penalty. Court orders cannot be ignored and a message must be sent to Bruce and others that there will be consequences in doing so. A post-facto analysis that justifies the breach is not the proper approach. The consequences of the breach, although relevant, are not determinative. The Court cannot condone that type of conduct as to do so would bring the administration of justice into disrepute.

[192] In Cassidy v. Cassidy, 2010 ONSC 2707, [2010] O.J. No. 1927, the Court set out the following regarding sentencing in contempt proceedings:

The sanction imposed upon a finding of contempt must be significant and of such consequence as to ensure the administration of justice is not brought into disrepute. Sentencing in contempt proceedings, particular in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produces the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances. In determining an appropriate sentence in the present case, considerations include the following:

(a) The available sentences: For practical purposes the list of available penalties for civil contempt is a short one, consisting of: no penalty (where the contempt has been purged), a suspended sentence (perhaps conditional upon some act or event occurring), a fine, or incarceration.

(b) The proportionality of the sentence to the wrongdoing: A sentence, to be fit, must be proportionate to the gravity of the wrongdoing. Although a finding of contempt carries with it the recognition that the conduct was deliberate and wilful, contempt can reflect degrees of wrongdoing. All instances of contempt are serious, but some are more serious than others.

(c) The similarity of sentences in like circumstances: A sentence should not reflect a marked departure from those imposed in like circumstances. Unfortunately, in the area of sentencing for contempt the reported and unreported decisions are scarce. Those that do exist are heavily fact-driven. While each case turns on its own facts, the general principles applied by the court are the same and the penalties differ, depending on the facts.

(d) The presence of mitigating factors: An admission of the facts by the contemnor may constitute a mitigating factor.

(e) The presence of aggravating factors: That the contemnor's conduct was flagrant and continued over a long period were aggravating factors: That the contemnor's conduct was flagrant and continued over a long period were aggravating factors.

(f) Deterrence: The primary purpose of sentencing in contempt proceedings, apart from coercing compliance, is deterrence: both general and specific. The punishment for contempt should serve as a disincentive to those who might be included to breach court orders.

(g) The reasonableness of a fine: Where civil contempt is concerned, the ability to pay a fine is a crucial consideration in determining its size. A small fine for a wealthy person is not a punishment. Deterrence is not achieved unless fines are imposed in meaningful amounts. A fine must be a punishment, not a nuisance. Where a fine is imposed it must, in all of the circumstances, reflect the seriousness of the contempt.

(h) The reasonableness of incarceration: Incarceration is reasonable only where no other less restrictive sanction is appropriate. It is appropriate in cases where there have been multiple breaches of court orders.

For any motion necessitated by contempt, the contemnor must pay the solicitor and client costs of the moving party.

[193] In Boucher v. Kennedy, [1998] O.J. No. 1612 (C.J.) the following factors were considered when determining the appropriate sanctions:

(a) whether the contemnor had admitted the breach;

(b) whether the contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the Court;

(c) whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;

(d) whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than as a result of mistake or misunderstanding;

(e) the extent to which the conduct of the contemnor displayed defiance;

(f) whether the Order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the Order;

(g) the need for specific and general deterrence; and the ability of the contemnor to pay.

[194] I am satisfied in light of these guiding legal principles that Bruce should pay $2,500 to Terri as a penalty.

Life Insurance/Health Benefits

[195] I am not satisfied on the record before me that an order for Bruce to have life insurance to secure any spousal support order ought to be made, nor am I satisfied that an order for Bruce to keep Terri on any health benefits available to her should be made.

Judgment to Issue as follows:

1. A Divorce shall issue;

2. the Respondent husband shall continue to pay to the Applicant spousal support in the sum of $478 per month, payable on the first day of each month; the husband shall continue to provide the wife 12 post-dated cheques annually for so long as spousal support is payable;

(a) the spousal support payment should continue until July 1, 2018. On July 1, 2018 the spousal support payment shall be automatically reviewed at the request of the Respondent by way of an application on notice to the Applicant;

(b) commencing immediately the Applicant shall advise the Respondent of the efforts she is making to obtain full-time employment; the Applicant shall provide to the Respondent the particulars of all applications she makes for full-time employment or any of the particulars of her employment status; the Applicant is required to make her best efforts to seek out full-time employment.

3. the Respondent husband shall pay to the Applicant wife the sum of $2,500 for the finding of contempt; and

4. the parties shall file written submissions on costs within 20 days.

Fragomeni, J.

Released: March 31, 2016