COURT FILE NO.: FS-13-386523 DATE: 20170519

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JUSTIN BRADLEY RYAN Applicant – and – CORENA MARGARET RYAN Respondent

Counsel: Gabrielle Pop-Lazic, for the Applicant Corena Margaret Ryan, In Person

HEARD: February 27, 28 and March 1, 2, 3, 6, 2017

WILSON J.

Reasons for Judgment

[1] Was the Respondent Wife unjustly enriched by the Applicant Husband’s contributions to the matrimonial home? If so, is this a rare case justifying the imposition of a remedial constructive trust rather than relying on the division of net family property (NFP) under the Family Law Act, R.S.O. 1990, c. F.3 [FLA]? Is the Applicant liable to pay spousal support to the Respondent when the slip and fall injury precipitating the Respondent’s need for support occurred post-separation?

Position of the Parties

[2] The Matrimonial Home (the Home) is registered in the name of the Wife, Corena Margaret Ryan (the Respondent). The Husband, Justin Bradley Ryan (the Applicant), seeks a declaration that he is the 50% beneficial owner of the Home. Alternatively, he seeks a judgment in the amount of $125,000.00.

[3] The Respondent argues that the Applicant’s contribution to the improvements to the Home is recognized in the division of NFP. The agreed-upon market value at separation takes into account any improvements to the Home made by the Applicant during the marriage.

[4] The significant debts of the Respondent, including a large debt to Revenue Canada accrued during the marriage, exceeded the value of the Home at separation and result in her having a negative NFP. Without considering the trust claim, the agreed upon figures result in the Respondent having a negative NFP of (-$63,070.07) and the Applicant having a negative NFP of (-$10,959.49). The application of the provisions of the FLA, with both parties in a net debt position at separation, therefore results in no equalization payment payable by either party.

[5] If the Applicant obtains a declaration that he is a 50% beneficial owner of the Home, he will be in a positive NFP position of $52,833.00 and the Respondent will be in a very significant net negative NFP position of (-$137,910.49).

[6] There is no evidence before me as to the present value of the Home. Given the Toronto real estate market, a reasonable inference is that the value of the Home has increased significantly since 2012.

[7] The Respondent argues that the elements of unjust enrichment have not been established. In light of the debts she accrued, which were used for family purposes, the imposition of a remedial constructive trust on these facts would be unjust.

[8] Concerning the second issue, the Applicant argues that he is not responsible to pay spousal support because the circumstances giving rise to the need occurred post-separation. Spousal support is not an insurance policy. The Respondent claimed that she had a pre-existing medical problem during the marriage that was exacerbated by the slip and fall accident.

Challenges in this Trial

[9] The Respondent was unrepresented. The Respondent was denied legal aid just days before the trial began. She had been unrepresented through much of the proceeding. Counsel had assisted in preparing the documents in support of the NFP, but unfortunately there were gaps in the relevant documents.

[10] Basic documents relevant to considering the merits of the trust claim, such as bank records of the parties and tax returns verifying income, were not available. Medical records of the Respondent during the marriage relevant to the support claim were not before the court.

[11] Some documentation was provided during the trial. Some documents were marked as exhibits to be filed and were produced after the conclusion of the trial, with the right of the parties to be recalled if requested. Some relevant documents were not produced at all.

[12] The documents that were filed after the conclusion of the hearing include the Applicant’s income tax information from 1997 to 2005 and his medical reports during the period of his disability while he was renovating the Home. The Respondent filed an up to date statement of her current RRSP holdings, as there was an error in her financial statement. She also filed a typed legible copy of a doctor’s note that had been filed as an exhibit during the trial but was illegible.

[13] Counsel for the Applicant, in spite of objections on the record, was helpful in cooperating to obtain some of the missing documents that were readily available but were not in evidence. I thank her for her assistance.

[14] Neither party sought to add additional evidence, to recall a witness, or to make supplementary submissions in light of these documents filed after the conclusion of the trial.

[15] This matter proceeded as a traditional trial. I suggest, at least for the unrepresented party, more extensive use could be made of Rule 7.2(i) of the Family Law Rules, O. Reg. 114/99, which allows a witness to give all or part of his or her evidence by affidavit. This approach would ensure that relevant evidence is before the court. Before trial, either an independent judge or the assigned trial judge could ensure that the appropriate and relevant evidence to address the matters in issue is before the court, promoting fairness to both parties in the ever-increasing number of trials with unrepresented litigants.

Outline of these Reasons

[16] My reasons will address the following:

(a) Outline of the undisputed facts (b) Findings of credibility and reliability (c) Findings of fact on the disputed issues (d) Outline of the law of unjust enrichment and conclusions (e) Consideration and entitlement and need for spousal support

Background Facts

[17] The parties were married in 1997 and have two children: Justice Corena Ryan, now 18, and Reign Justin Ryan, now 17. The parties separated in November 2012, after 15 years of marriage.

[18] The Applicant is 45 years of age. Throughout the marriage, he worked in construction in various capacities, except when injured in 2008 and 2009. The Respondent acknowledges that he is a very talented, skilled self-taught carpenter.

[19] The Respondent, also age 45, is a First Nation member of the M’Chigeeng band from Manitoulin Island. Her First Nation status is traced from her father. Her mother was Italian. The Respondent was born and raised in Toronto. She has a biology degree from Trent University. She had been a part-time student for the last five years of the marriage and completed her degree in 2013, shortly after separation. Her dream, prior to the slip and fall accident, was to become a medical doctor working in the Aboriginal community.

[20] During the marriage (apart from the first year where she worked ¾ time), the Respondent worked full-time for Native Leasing Services. She worked with First Nation people in the Toronto area with HIV and Aids. Her work in palliative care and coordinating volunteers was, in her words, to “coordinate the journey, going to the spirit world”. For the last several years of the marriage, the Respondent held a supervisory position and was involved in policy and protocol discussions in the provincial, national, and international spheres.

[21] The Respondent’s status under the Indian Act, R.S.C. 1985, c. I-5 is passed to the children. Therefore, the children are able to attend university that is fully funded, including all costs of tuition, books, residence, and living expenses.

[22] In spite of initial acrimony, the issues concerning the children were resolved in March 2014. Justice, their daughter, lived with the Respondent until she began attending her first year of university at McMaster University in September 2016. She is living in residence. Reign, their son, is in grade twelve and is living with the Applicant. He has been accepted at two universities and will begin his university studies in September 2017. He too will be living in residence. There is no claim advanced by the Applicant for child support.

Revenue Canada Tax Debt

[23] A major stumbling block in this proceeding is the large tax debt owed by the Respondent to Revenue Canada that accumulated during the marriage.

[24] The Respondent’s employer is located on Six Nations of the Grand River Nation Reserve. The Respondent was one of the litigants affected by a test case challenge as to whether or not her income was tax exempt pursuant to section 87(1)(b) of the Indian Act. The challenge had gone on for a number of years. The challenge was ultimately unsuccessful.

[25] The test case, involving three employees (not including the Respondent) who worked for Native Leasing Services, proceeded over the years through various levels of court, including the Tax Court of Canada in 2014 and the Federal Court of Appeal in 2015.

[26] Had the Respondent performed her work while residing on a reserve, her income would not be taxable. The legal analysis in the test case reviewed the “connecting factors” and concluded that the employment income for each Appellant in the test case was situated off-reserve and hence taxable.

[27] In April 2016 the Supreme Court of Canada denied leave to appeal from the Federal Court of Appeal decision, ending the challenge.

[28] The Respondent has not paid income taxes on her income earned from 1997 at the date of marriage to 2016, when her employment was terminated. Over the years, the Respondent has been filing a tax return showing zero income. Revenue Canada in turn has been assessing the Respondent for her taxes on income earned throughout the marriage to the date of separation and thereafter. Each year, the Respondent contested the assessment.

[29] In 2015, after the conclusion of the proceedings before the Federal Court of Appeal, Revenue Canada registered a lien against the Home for the Respondent’s tax arrears from 1997 to 2012 in the amount of $251,939.28. This debt remains outstanding. The parties acknowledge that this debt of $251,939.28 is the tax arrears related to the income earned by the Respondent during the marriage.

[30] Presently, the agreed upon debt owed by the Respondent to Revenue Canada is in excess of $325,000.00. The Respondent was successful in having some of the interest charges reversed because of the test case litigation. These are the figures taking into account that reduction.

[31] It is the debt owed to Revenue Canada at separation of $251,939.28, coupled with other debts, that results in the Respondent having a negative NFP at separation.

Applicant’s Work History and Earnings

[32] In the early years of the marriage, the Applicant was a shareholder with his father and mother in a construction company that bought three homes, performed significant renovations, and then sold them for profit. According to his father, he and his father received draws of $800 per week. This appears to be corroborated by the tax information filed after conclusion of the trial.

[33] Two projects produced profits after paying the weekly draw ($30,000, and $70,000). The profits were paid into the company to fund the next project. Unfortunately, the third and last project was a disaster. Sometime after 2001, the company declared bankruptcy as the last project lost some $650,000.00. The Applicant declared personal bankruptcy in 2004. His father also declared personal bankruptcy for the second time at around the same time. The Applicant then went into the construction business with a partner, then on his own, and earned modest net taxable earnings.

[34] There were two particularly difficult years—one when the Applicant declared bankruptcy disclosing negative income, and another when his truck and equipment were stolen and he again had negative income.

[35] In 2008, the Husband had a back injury requiring two surgical interventions. He was on short-term disability from February 2009 to December 2010, receiving $2,000 tax free per month. He took training to become a mortgage broker and earned a small amount of income in 2009 and 2010 in this field.

[36] The Respondent testified that the Applicant’s earnings throughout the marriage were erratic until he obtained stable employment as a property manager in 2010, where he works to this day.

[37] A summary of the earnings of both parties throughout the marriage is confirmed in “Schedule A”. Most of the earnings were confirmed in tax documents and, for some of the years, viva voce evidence sufficed. I accept the earnings of the parties throughout the marriage as outlined in Schedule A.

[38] In 2010, a friend of the Respondent told her about the job opportunity for the Applicant as a property manager. The Respondent helped the Applicant prepare his resume. He got the job and has worked there earning stable income from November 2010 to the present. He is presently earning $82,000.00 per year.

Respondent’s Work History and Earnings

[39] During the marriage, the Respondent worked for Native Leasing Services. The Respondent’s net income before taxes increased to approximately $60,000.00 when she was given the supervisory position. The family then moved to Harbour Square and rented for five years prior to the purchase of the Home.

[40] The Respondent’s reported taxable income as confirmed on Schedule A was somewhat higher than the amounts she actually received, as the employer paid for various benefits deducted from her income (CPP, etc.).

[41] Prior to the marriage, the Respondent had put her potential income tax amounts aside in a separate account until the taxability of her income was determined. However, these tax funds were used to pay for the parties’ wedding expenses.

[42] After the marriage, the parties used all of the Respondent’s gross income. Both the net income and the taxes were deposited into the Respondent’s account and used for family purposes. No amounts were put aside for potential tax liability if the challenge with Revenue Canada was unsuccessful.

Acquisition of the Home

[43] During the marriage, the parties spent their earnings to the limit and then some. Prior to the purchase of the Home, they incurred debt through the joint line of credit at its maximum limit of $30,000.00 used to finance a lifestyle (a second vehicle, a boat, and a camper trailer, and to consolidate credit card debts).

[44] In the fall of 2008, the Respondent found out about a programme called the Miziwe Biik Aboriginal Housing Program (AHP), which was designed to encourage eligible First Nation members living off reserve to purchase a home.

[45] Their daughter wanted a dog and the family sought some permanence and financial stability.

[46] The Respondent applied for the AHP loan as soon as the program was introduced. She qualified for a loan in the amount of $17,400.00 (the Loan). The Loan would be forgiven if the Respondent owned the Home for 20 years. The Loan did not require any monthly payments. If the Home is sold, or title is transferred prior to expiry of the 20 years, then the original capital amount becomes payable, along with the capital appreciation amount, which is the proportionate share that the Loan represented in relation to the original purchase price.

[47] The parties’ means to acquire the Home, both in terms of capital and income, was very limited. In the fall of 2008, they were renting in Harbour Square. The parties had no assets and only debt.

[48] The Respondent would not qualify for the Loan and mortgage with the joint line of credit $30,000.00 debt. The Applicant arranged for a short-term loan with a mortgage broker to temporarily repay the joint line of credit. The Respondent then qualified for the Loan and the Mortgage. After the Home was purchased, the short-term loan was immediately paid back to the mortgage broker from the line of credit, reinstating the debt. This debt had not been repaid prior to separation and is outstanding to this day.

[49] At the time of the purchase of the Home, the Respondent was working full-time earning $61,000.00 per year. The Applicant’s taxable net income in 2008 was minus $13,345. From 2008 to 2010, the Applicant was off work and in receipt of disability payments of $2,000.00 per month. He was working towards obtaining his mortgage brokers licence and received modest income from that endeavour ($15,933.00 in 2009 and $6,065.00 in 2010).

[50] The Home is located at 244 Woodbine Ave, Toronto. It was purchased by the Respondent for $380,000.00 in October 2008 and the purchase closed in February 2009.

[51] A $5,000.00 deposit was provided to purchase the Home. The Respondent confirmed that she saved the deposit from her salary. Given the Applicant’s precarious financial status in 2008, it is not clear from the evidence that the Applicant made any contribution to the deposit.

[52] Apart from the $5,000.00 deposit, the Home was fully financed by way of the Loan of $17,400.00 and a mortgage in the amount of $372,371.50. The parties also had their debt for the joint line of credit of $30,000.00.

[53] After the acquisition of the Home in 2009, the Applicant and his father did considerable physical labour to improve it. As well, the Applicant’s parents provided the parties with a gift of $5,000.00 to allow them to finish the basement apartment to generate income for the family.

[54] The Applicant testified at some length and in detail about the various components of the work performed. The Applicant valued the total of the work performed and materials contributed by himself and his father as between $47,000.00 and $55,000.00 had the parties had to engage a third party contractor. The Applicant testified that the work and materials provided increased the value of the Home at the time the work was done by $100,000.00.

[55] It is this work and materials that underpin the Applicant’s claim for unjust enrichment and constructive trust.

Title of the Home Registered in Respondent’s name

[56] By separation in 2012, taking into account the improvements, the parties acknowledge that the Home was worth $605,000.00.

[57] As required by the terms of the Loan, title was registered in the name of the Respondent.

[58] In light of the Applicant’s bankruptcy, he testified that he was concerned about potential future bankruptcy claims related to his work, and therefore title to the Home was in the name of the Respondent.

[59] The Applicant’s father, who had declared bankruptcy in the late 1990s and again around 2004, confirmed that he had spoken to his son about title to the Home, and that “for liability purposes” “we were not the owners of property”.

[60] The Respondent’s evidence was that, until 2010, she provided the lion’s share of the money for the family and that her income, including the income from the unpaid taxes, was spent supporting the family and to maintain the Home. This is corroborated by the income tax information summarized in Schedule A.

[61] The parties leased the basement apartment in 2012 in the Home for $1,350.00 per month. The lease was in the name of both parties. The Respondent collected the rent post-separation. It is not clear whether the apartment was rented until 2014 or 2016.

Facts Relevant to Support

[62] In September 2014, the Respondent had a slip and fall accident at a No Frills that caused injuries to her hips and back, precluding her from working. She has an outstanding lawsuit that is unresolved.

[63] After the accident, she was paid her salary by her employer until August 2016.

[64] The Respondent was on short term disability payments until December 2016 in the amount of $3,000.00 per month. As of January 2017, she became eligible for long-term disability payments in the amount of $3,000.00 per month, non-taxable.

[65] In January 2017, the Respondent amended her pleading to claim spousal support.

Facts Relevant to the Unjust Enrichment Claim

[66] Most of the important facts about the work performed by the Applicant and the history of the marriage are not in dispute.

[67] The Applicant gave detailed evidence about his work on the Home. He is understandably proud of the improvements he made to the Home during the marriage. He kept photos of the work as part of his portfolio for potential future customers. The extent and quality of the work is confirmed in the numerous photos. I accept his evidence about the work that was performed and the quality of that work.

[68] I accept the evidence of the Applicant as to the work he did on the Home, which is corroborated by the photos as well as the evidence of the Respondent and the Applicant’s father.

Contested Factual Issues

[69] There was little independent evidence called by either party to corroborate their version of events on the contested factual issues.

[70] The four contested factual issues are:

(a) whether, prior to his full-time employment in 2010, the Applicant contributed his earnings to the Respondent’s account to be used for family purposes; (b) whether the Applicant knew of the Revenue Canada debt prior to the end of 2009 or before the Home was purchased; (c) the extent of the Applicant’s use of drugs and alcohol during the marriage; and (d) the Respondent’s health situation prior to separation. (I will review this issue when I consider the entitlement to spousal support).

Credibility and Reliability of the Evidence of the Parties

[71] Cross-examination of the Applicant by the Respondent was very awkward. The Respondent’s questions at times were either unclear or speeches rather than questions. Once the Respondent understood that she could put to the witness her view of the evidence, matters went more smoothly.

[72] The Applicant was quiet and controlled in the courtroom. He was careful with his answers. His negative attitude and disdain for the Respondent was palpable. During cross-examination, the Applicant flat out denied some of the Respondent’s assertions, but many of his answers were that he “could not recall”. It appears that he either had a poor memory or declined to answer some difficult questions. He was a careful, well-prepared witness.

[73] By way of contrast, the Respondent’s evidence, both in chief and in cross-examination, was spontaneous, unpredictable, at times highly relevant, and at times not relevant at all to the matters in issue. She was passionate about describing her work and the pride and importance in her role in the First Nations community. She held a responsible, policy-oriented position.

[74] At trial, the Respondent had significant medical problems and was taking considerable medication for her condition.

[75] Almost as soon as the trial commenced, the Respondent requested permission to lie on the floor to hear and to give her evidence as she was in considerable pain. I could not permit this as I could not see her and she could not see the witness. On the second day of the trial, the staff were able to find a solution by renting a reclinable remote-controlled chair for the week. The Respondent spent much of the time during the trial in a reclined position.

[76] As the trial progressed, I had an opportunity to review the documents filed as exhibits. A document from Dr. Al-Rawi, a sports medicine specialist who is one of her treating physicians, confirmed the significant health issues of the Respondent as at September 2016:

I have been following Corena Debassige for her hip and back injury since her accident in September 2014. I initially saw her on October 16, 2014. Ds. Debassige has now been referred to another surgical opinion as she has failed all other forms of conservative treatment.

Ms. Debassige is currently on a number of medications, including narcotic medication, to control her pain as the physical therapy is not providing sustained relief. The doses have recently been increased due to ongoing and worsening symptoms. Due to the potential side effects of these medications, including but not limited to drowsiness, short term memory loss, dry mouth, blurry vision and headaches, I believe she is not able to participate in any legal or court dates in the near future. Due to her pain also, she is incapable of sitting and standing for long times which will also affect her court appearances.

[77] Counsel for the Applicant objected to the admissibility of this document. I allowed the document to be admitted into evidence. Dr. Al-Rawi is a treating physician who is able to explain the Respondent’s condition and the medication that she is taking. It is admissible and relevant. I note that the Respondent did not ask for an adjournment and both parties appeared to be clearly anxious to have this matter finalized.

[78] The list of medications that the Respondent was taking on a daily basis was filed as an exhibit.

[79] The Respondent’s participation during the trial was inconsistent. At times she was focused, appropriate, capable of responding and participating, and quite energetic. At other times, she was having trouble with her memory, was unfocused, showing signs of fatigue, and at times was almost slurring her words. The inconsistency in the demeanor of the Respondent appeared to be due largely to the effect of the medication.

[80] The Respondent is clearly intelligent and motivated. During the last five years of the marriage, she attended Trent University on Tuesdays and Thursdays each week, taking two courses a year to complete her degree. This was accommodated by her employer as she was still earning income for full-time employment during these years. On Tuesdays and Thursdays, she rose at 5:00a.m., travelled to Peterborough for her courses, and returned in the afternoon to prepare dinner for the family. She studied at night after the children had gone to bed. She completed her biology degree in 2013, the year following the separation.

[81] Presently, the Respondent’s historic memory for detail of incidents and specifics of what happened during the marriage appears far superior to the Applicant’s rather vague responses of “I don’t recall”. The Respondent’s capacity and focus, however, waxed and waned. She would often forget where she was in either the questions she was asking, or the evidence that she was giving, probably due to the medications.

[82] In spite of these limitations, I found her to be a credible and generally reliable witness with respect to confirming facts about the history of the marriage.

Financial Contribution of the Applicant to the Marriage and to the Home

[83] The Respondent acknowledged that, after November 2010, the Applicant’s pay was deposited into the account in her name used for family purposes, but testified that, prior to that time, the Applicant did not make such deposits.

[84] The Applicant testified that he gave his earnings to the Respondent to deposit in her bank account from 1997 to November 2010.

[85] The Applicant had not requested the banking documentation of the Respondent during the marriage to confirm his evidence, and did not file any of his bank documentation during the marriage. The Respondent, self-represented, has been compliant with any requests made.

[86] The Respondent testified that, particularly during the 2009 and 2010 period when the Applicant was in receipt of the disability earnings, he treated his earnings as largely his own and refused to deposit these payments into the Respondent’s account. She testified that he bought luxury items for himself (for example, a motorcycle) and various items for the children, including, for example, an expensive remote toy car that the Respondent testified they could ill afford. She testified that, until the end of 2010, deposits from her earnings generally looked after the day to day expenses.

[87] After the bankruptcy, in 2005 to 2009, the Applicant went into business with a partner, and then on his own.

[88] For the reasons that I will outline more fully in the assessment of the unjust enrichment claim, I find that the Respondent contributed her earnings and provided steady income to the family and to the Home until November 2010. The Respondent managed the family finances from her account. She was very concerned about the family budget and testified that the Respondent got frustrated as she was too frugal.

[89] I accept the evidence of the Respondent that the Applicant did not deposit his earnings to the Respondent’s account prior to November 2010. I find that the Applicant’s earnings were used to buy more of the discretionary items for himself and the family and to fund his business from 2005 until November 2010. Beginning in November 2010, the Applicant obtained steady employment as a property manager and contributed his earnings to the operating account in the name of the Respondent in an amount somewhat greater than the Respondent’s earnings.

Was the Applicant Aware of the Revenue Canada Debt?

[90] An issue is whether the Applicant knew of the ever-increasing Revenue Canada debt prior to the acquisition of the Home. The Applicant testified that he knew of the debt in late 2009 or 2010 when he saw a document from Revenue Canada seeking to collect some $200,000.00 in unpaid taxes.

[91] He further testified that, had he known of the debt, the Respondent would not have purchased the Home and the family would have simply continued renting.

[92] The Respondent testified that the Applicant was well aware of the Revenue Canada debt throughout the marriage, the test case litigation, and that the family was spending her gross income, including the allocation for taxes.

[93] Prior to the marriage, the Respondent had saved her tax money in a separate account pending the court challenge. However, this money put aside was used to pay for the parties’ wedding. She testified that the Applicant paid for the ring and she paid for the rest, including the honeymoon. I find that the Applicant must have been aware of this tax situation before the parties married.

[94] During the marriage, the family used the unpaid tax money from 1997 to 2012 for living expenses and for improvements to the Home after its acquisition. There is no allegation by the Applicant that the tax funds were used for anything except family expenses or for the Home.

[95] The Respondent is a voluble, spontaneous, forthright communicator. That she would hide this significant potential debt from the Applicant makes no sense whatsoever. The tax challenge was an important issue for the strained finances of this family. The parties used the tax money to make ends meet.

[96] I find that the Applicant knew of the ever-increasing potential Revenue Canada debt throughout the marriage and well prior to the end of 2009.

The Applicant’s use of Drugs and Alcohol

[97] A contested factual issue was the degree of the Applicant’s consumption of drugs and alcohol and the extent to which it is relevant to his financial contributions over the years.

[98] The Respondent alleges in her pleadings and in her evidence that the Applicant had a significant problem with drugs and alcohol during the marriage, which consumed money and created financial and emotional instability.

[99] Initially, the Applicant did not address the issue in his evidence, nor was he cross-examined on this. When it was obvious that this was a contested issue, clearly addressed in the pleadings, and to be addressed in the Respondent’s evidence, the Applicant was recalled to provide both evidence in chief and cross-examination on this issue.

[100] The Applicant testified that he did not have a “serious substance abuse” problem. He acknowledged recreational weekend use of marijuana and cocaine. The Respondent suggested that it was the Respondent, not he, who consumed drugs to excess. He acknowledged that he was briefly a member of AA, but for a short period of time.

[101] The Respondent described a serious intermittent dependence during a lengthy period of time with both drugs and alcohol. She testified that the Applicant was a member of AA at the Richmond Hill location for over five years and that he had the role of the librarian for the organization. She testified that she regularly attended the open meetings with him. She testified that the Applicant was a functioning alcoholic and that he consumed many drugs including cocaine. She testified that his use was primarily on weekends and that it was sporadic. He would work for periods then fall into difficulties again. She described helping him with painful detox situations. She described the Applicant using alcohol and drugs in the garage in the evenings to hide the consumption from the children. She was not cross-examined on this evidence, which painted a very different picture of use of drugs and alcohol than the evidence of the Applicant.

[102] I do not accept the evidence of the Applicant that it was the Respondent who had the drug problem. I accept the evidence of the Respondent that any “partying” early in the marriage abruptly stopped when she had back-to-back pregnancies in 1998 and 1999. The Respondent acknowledged that she used marijuana during the marriage, but that it did not impact on her ability to work full-time throughout the marriage except for two brief maternity leaves. She also pursued two university courses a year for the last five years of the marriage, while working full-time and managing the Home.

[103] I accept the evidence of the Respondent that the consumption by the Applicant of drugs and alcohol was a problem in the marriage, creating emotional instability and adding to the financial insecurity of the family.

[104] It is not necessary for the analysis to make detailed findings on this issue. It appears clear that since November 2010 the Applicant has enjoyed stable employment and stable income. Consumption by the Applicant is not a present issue.

Legal Principles of Unjust Enrichment

[105] I outline the legal principles of unjust enrichment before considering the facts in this case.

[106] The Applicant bears the onus of proving the unjust enrichment claim.

[107] Courts are required to determine questions of beneficial ownership of assets at the first stage of the NFP analysis. The Court of Appeal has confirmed that, “[b]efore property can be equalized under the Family Law Act, a court must first determine the ‘net family property’ of each spouse. This exercise requires first that all questions of title be settled”: Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 47; see also McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66. Under s. 10(1) of the FLA, a court can determine questions of “ownership or right to possession of particular property” between spouses.

[108] I begin the outline of the law with a caution.

[109] I echo the views of Hoy A.C.J. in Martin, at para. 67, that it is a “rare” case when constructive trusts should be imposed to give a proprietary interest in property when the parties are married. Generally, the statutory scheme of the FLA should address questions of unjust enrichment in the context of marriage.

[110] The Applicant argues that he is entitled to a 50% beneficial interest in the matrimonial home by way of a constructive trust. He submits that this would remedy the Respondent’s unjust enrichment from the labour and money he contributed. Alternatively, counsel for the Applicant argues I can craft an appropriate remedy with a lesser beneficial interest to take into account the Applicant’s contribution.

[111] Unjust enrichment has been clarified by the Supreme Court decision in Kerr v. Baranow, 2011 SCC 10, 328 D.L.R. (4th) 577. Justice Cromwell, at para. 32, confirms that an unjust enrichment claim requires “three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment”.

[112] I summarize Cromwell J.’s analysis of each element:

(a) First, for enrichment or benefit to the defendant, the defendant must have received and retained a tangible benefit from the plaintiff that “can be restored to the plaintiff in specie or by money.” The contribution or benefit may include improvement of property: Sorochan v. Sorochan, [1986] 2 S.C.R. 38, at para. 31. This contribution typically takes the form of labour or capital. (b) Second, for corresponding deprivation, the plaintiff must show “not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered”: Kerr v. Baranow, at para. 39. Courts have also described this as a requirement that there be a “direct nexus” between the plaintiff’s deprivation and the defendant’s enrichment: see e.g. Singer v. Schering-Plough Canada Inc., 2010 ONSC 42, 87 C.P.C. (6th) 276, at para. 111. (c) Third, for absence of juristic reason, it must be the case “that there is no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff, making its retention ‘unjust’ in the circumstances of the case”: Kerr v. Baranow, at para. 40.

[113] As Cromwell J. explains, at para. 37 of Kerr v. Baranow, “[t]he Court has taken a straightforward economic approach to the first two elements – enrichment and corresponding deprivation. Accordingly, other considerations, such as moral and policy questions, are appropriately dealt with at the juristic reason stage of the analysis”.

[114] Counsel for the Applicant concedes that she is not relying upon a joint family venture in support of the Applicant’s claim. The joint family venture analysis would have no application to the present case. As Cromwell J. explained in Kerr v. Baranow, at para. 83, there is a “legislative presumption that married partners are engaged in a joint family venture.” It is only necessary to engage in the joint family venture analysis when the “legislative presumption” of the FLA does not apply. The parties here are married partners, not common law partners, so the FLA applies and the joint family venture analysis would be redundant.

[115] The Court must first consider whether any unjust enrichment can be remedied by a monetary remedy. Counsel argues that due to the significant debts of the Respondent, payment of money is not a viable option. If I had concluded there was merit to the Applicant’s claim, I would have explored in more detail with evidence of the current value of the home, and the current debts of the Respondent with interest, whether a monetary award was viable.

Analysis and Conclusions for Unjust Enrichment

[116] I conclude that the Applicant is unable to make out a claim for unjust enrichment. Although the first element of unjust enrichment has been proved: receipt of a tangible benefit, I conclude for reasons to follow that the second and third requirements cannot be met.

Element 1: Receipt of a Tangible Benefit

[117] The Applicant estimates that the value of the labour and materials that he and his father contributed was $47,000.00 to $55,000.00 total. The Applicant gave opinion evidence that this contribution increased the value of the Home by $100,000.00. There was no expert evidence on this point. For the purpose of this analysis, I accept these estimates, which, though perhaps generous, appear in the range of reasonable.

[118] The Applicant alleges that he also made financial contributions for the carrying costs of the Home. I will assess this issue when I consider the other elements of unjust enrichment.

[119] I accept that the Applicant did significant labour on the Home after its acquisition, as documented in his exhibits and in his evidence. The Respondent confirmed that the Applicant was very competent and that he did “beautiful” work on the Home. This is borne out by the photos.

[120] The Applicant’s father also contributed labour for some of the improvements, including the replacement of sagging joists, the wiring, and the installation of the furnace. In his evidence, he made it clear that this contribution was to the family, not just to the Applicant. I estimate, based upon the father’s evidence, that the father’s contribution of work to the Home totals $9,000.00. He and his wife also gave the generous gift to the family of $5,000.00 to allow them to finish the basement apartment so that it could be rented to generate income for the family. “We presented it to them together”. Again, this gift was to both of the parties, not just the Applicant.

[121] This work and financial contribution made by the Applicant’s father is treated by the Applicant as if it was his contribution to the Home. It is included in his estimate of time and materials of $47,000 to $55,000.

[122] Without taking into account the father’s contribution (which was clearly to benefit both parties and the family), the Applicant’s contributions in time and materials using his estimates is therefore between $38,000 and $46,000, which had an augmented effect on the fair market value of the Home. This is a benefit to the Respondent, meeting the first branch of the test for unjust enrichment.

[123] There is no allegation that the Applicant made any improvements to the Home post-separation. He did pay interest on the joint line of credit of the parties that predated the acquisition of the Home and had been used for family expenses. The rental income from the apartment did help with the carrying costs for some time post-separation.

[124] I conclude that the contribution by the Applicant meets the first element of unjust enrichment. I conclude that the Applicant has proved that the Respondent received and retained a tangible benefit from the Applicant as the Home was registered in her name.

[125] I turn to consider the other two required elements for unjust enrichment.

Element 2: Deprivation

[126] The Applicant must prove a corresponding deprivation. To prove this, the plaintiff must show “not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered”: Kerr v. Baranow, at para. 39. Courts have also described this as a requirement that there be a “direct nexus” between the plaintiff’s deprivation and the defendant’s enrichment: see e.g. Singer v. Schering-Plough Canada Inc., 2010 ONSC 42, 87 C.P.C. (6th) 276, at para. 111.

[127] Kerr v. Baranow, at para. 37, confirms that the Court should take a straightforward economic analysis for the first two elements of unjust enrichment.

[128] I conclude that the evidence of the Applicant, at its highest, does not support a finding of a deprivation.

[129] To assess the question of deprivation, using a purely economic analysis, I must look not only at the circumstances and contributions of the Applicant, but also those of the Respondent. The approach argued by the Applicant is one-sided, and only focuses on the contribution of the Applicant and ignores the significant contribution of the Respondent to the family and to the Home.

[130] The evidence of both parties confirms that, throughout the marriage until the purchase of the home, they lived a day-to-day, rather precarious financial existence, spending everything they earned and more. They lived in rental accommodation from 1997 to 2009, when the Home was purchased. The joint line of credit of $30,000.00 was at its maximum. The parties had no savings.

[131] The parties used the gross taxable income of the Respondent throughout the marriage to live on and to acquire the Home, resulting in the significant Revenue Canada debt at separation. As outlined previously in these reasons, I accept the evidence of the Respondent that the Applicant was well aware of this accruing debt and the Respondent’s challenge as to whether or not her income earned was taxable.

[132] The onus is on the Applicant to prove the elements of unjust enrichment. The Respondent was unrepresented. It would have been helpful to have the bank accounts of financial contribution as alleged by the Applicant.

[133] The November 2012 bank statement for the account in the Respondent’s name used for family purposes was the only bank record filed as an exhibit. It confirmed the undisputed fact that, for the month the parties separated, that the Applicant’s pay check was deposited to the account.

[134] During argument, counsel for the Applicant argued that I should draw an adverse inference against the Respondent on this issue, as she did not provide her historic bank documents. She testified that she did not have the documents to file as the Applicant shredded many documents, including her bank documents prior to the separation. These documents were not requested by the Applicant. The Respondent has been compliant with all requests for disclosure made by the counsel for the Applicant.

[135] Based upon the evidence before me, I find that, after the acquisition of the Home and until late 2010, the Applicant made some contribution to the expenses of the family and the materials for the improvement to the Home, but that the lion’s share of the financial contribution came from the Respondent, including spending the allocation for unpaid income taxes.

[136] For the cost of materials and improvements to the Home, I accept the evidence of the Respondent that, except for amounts less than $100, these funds were paid for by the Respondent from her account or on the credit cards in her name, as she was exempt from paying the GST on purchases.

[137] To assess deprivation, the debts accrued by the parties for the Home existing at separation should be considered. They were unequal.

[138] The Respondent accrued significant credit card debts in her name for materials for the Home in the amount of approximately $30,000.00. ($11,601.25, $6,297.69 and $11,991.27). She was able to get the taxes reimbursed due to her native status and, therefore, all major purchases were put on these credit cards. These debts existed at separation and today. By way of contrast, the Applicant’s credit card debts at separation were $3,861.18.

[139] The Applicant also concedes that the Respondent contributed to the family after the acquisition of the Home by doing clean up and looking after the children. I accept her evidence that she did most of the meal preparation.

[140] I find in these factual circumstances, taking a straightforward economic approach, that the Applicant did not suffer a deprivation. He did contribute work and some funding to the Home. His contribution was not disproportionate to the significant contribution of the Respondent.

[141] The full value of the Home, taking into account improvements made by the Applicant, is included in the value of the Respondent’s net family property at separation. Unfortunately, the Respondent’s debts, including the Revenue Canada debt accrued to purchase the Home and used for family purposes, overwhelm and exceed the improved value of the Home, leaving the Respondent in a net negative financial position.

[142] I conclude that, on the facts of this case, the Applicant has not met the onus of proof of showing deprivation.

Element 3: Absence of Juristic Reason

[143] If I am wrong in my conclusion that the Applicant did not suffer a deprivation, I turn to consider the third element of unjust enrichment. The Applicant must prove the absence of juristic reason to allow the claim: that there is no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff.

[144] Kerr v. Baranow, at para. 31, confirms that “at the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain.”

[145] Justice Cromwell in Kerr v. Baranow adopts the test for absence of juristic reason outlined in Garland v. Consumers' Gas Co., 2004 SCC 25, 237 D.L.R. (4th) 385. There is a two-step analysis for this third element with a shifting burden of proof outlined by Cromwell J., at para 43:

In Garland, the Court set out a two-step analysis for the absence of juristic reason. It is important to remember that what prompted this development was to ensure that the juristic reason analysis was not "purely subjective", thereby building into the unjust enrichment analysis an unacceptable "immeasureable judicial discretion" that would permit "case by case 'palm tree' justice": Garland, at para. 40. The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied.

[Emphasis added.]

[146] The Applicant bears the initial onus of proof to show that the established categories of juristic reasons to deny recovery do not apply, which include “other valid common law, equitable or statutory obligations”. If the Applicant meets the primary burden that the case falls outside the existing recognized categories, then the Respondent may rebut the finding in the residual defence. The Court can look at all of the circumstances. Policy, and the legitimate expectations of the parties, feature in this phase of the analysis.

[147] There are few cases providing guidance how this test is to be applied as between married parties.

[148] I find that the Applicant has failed to prove absence of juristic reason to allow the claim for two reasons: first, the circumstances in which the Home was registered in the name of the Respondent, and second, the Respondent’s significant debt was used to acquire and maintain the Home.

Deliberate Decision to Purchase Home in Respondent’s Name to Protect from Creditors

[149] The Applicant confirmed that the decision to have the Respondent purchase the home was made to protect him from future creditor claims or in case of bankruptcy. His father, who has twice declared bankruptcy, also testified that he too registered any home in his wife’s name to protect it from potential claims from his creditors. He counselled his son to take the same steps. In his words, “we were not the owners of the property”.

[150] Placing a property in the name of a spouse is quite a usual practice to creditor proof an asset. However, it flies in the face of equity to then allow a person to advance a beneficial interest in property when it suits his purpose, but to deny an interest in property to prevent the claims of creditors. The law is clear that “unjust enrichment is an equitable doctrine and that a plaintiff seeking a remedy for it must come to the court with clean hands”: Taylor v. Guindon, [2005] O.J. No. 3110, at para. 54 (Ont. S.C.).

Failure to Consider Unjust Enrichment of Home in the Context of the Debt

[151] In the unjust enrichment claim, the Applicant seeks to take into account the only asset accumulated in the marriage: the Home, but does not acknowledge that he is responsible for half of the debt to Revenue Canada. That debt, from 2008 to 2012 supported the acquisition and improvements to the Home.

[152] The Applicant seeks to pick and choose amongst legal principles to support his claim. The Applicant attempts to argue the best of trust principles to advance a trust claim to a beneficial interest in the Home, coupled with case law confirming that negative debt is not to be equalized in a division of property under the FLA.

[153] His position is that he is not responsible for the Revenue Canada debt in the Respondent’s name, although the unpaid taxes were used over the years for the benefit of the family and to maintain and improve the Home. Counsel for the Applicant relies upon the case law confirming in the NFP calculation that negative debts at separation are not to be equalized: see von Czieslik v. Ayuso, 2007 ONCA 305, 86 O.R. (3d) 88, at para. 58.

[154] Applying equitable principles demands fairness and assessment of the entire context. Assessing a claim to entitlement to an asset without considering a corresponding debt related to its acquisition and maintenance is not fair and offends established principles underpinning equitable remedies.

Residual Defence

[155] If I am incorrect in my analysis and the Applicant has met the onus of proving the three requirements for unjust enrichment, I would find that, on the facts of this case, the Respondent has nonetheless met the secondary burden of proof of establishing a residual defence. Looking to all of the circumstances of the transaction, and the relationship between the parties, the unjust enrichment claim should fail for moral and policy-based reasons.

[156] The improved value of the Home, taking into account the contributions of the Applicant, is included in the NFP of the Respondent at the date of separation. There is no evidence before me as to the current value of the Home, but inevitably its value has increased. So too have the Respondent’s debts, including interest on debts since separation.

[157] The Applicant did not contribute to any improvements to the Home post separation.

[158] The lease prepared by the Applicant was in the name of both parties, although the Respondent was the registered owner of the Home. The Respondent received the rent in the amount of $1,350 per month from the apartment post separation. The rent helped defray the mortgage expenses for a period of time post separation. This fact is not sufficient to establish a trust claim post separation.

[159] As I have outlined, in the “duelling quantum meruit” claims [1], it is clear that the Respondent contributed significantly to the acquisition and improvements to the Home. The Respondent included the agreed upon value of the improved Home at separation of $605,000.00 in her NFP. This value takes into account the Applicant’s contribution by way of labour as well as his financial contribution to the Home.

[160] The parties were only able to acquire the Home because the Respondent qualified for the Loan and was working and earning a stable salary to qualify for the mortgage. The Applicant made a deliberate decision not to be on title. The retained income from the Respondent’s unpaid taxes assisted both parties in contributing to their day-to-day living expenses and to paying the mortgage on the Home. The fact that negative NFPs are not equalized shields the Applicant from taking on half of the Respondent’s debt, which benefitted both of them.

[161] On policy grounds, it would be inappropriate for the court to impose a constructive trust. Unjust enrichment is intended to rectify injustice. The NFP calculation at separation of the Applicant is (-$10,959.49). The Respondent’s NFP is (-$63,070.07) with 100% of the Home registered as her asset. If the Applicant is declared to be a 50% owner of the Home, he would be in a positive net asset position at separation, ($52,833.00) with the Respondent in a significant negative debt position (-$137,910.49).

[162] I find that there is a juristic reason to deny the claim as the result proposed by the Applicant, having regard to the assets and the debt at separation is clearly and manifestly unjust.

Application of the FLA to Address Unjust Enrichment in Marriage

[163] I have found that there was no unjust enrichment, and hence the following comments are obiter.

[164] In cases where an unjust enrichment is proved, Hoy A.C.J. in Martin confirms that caution is warranted in applying the constructive trust remedy in the context of married parties. It is a remedy of last resort.

[165] According to Kerr, where unjust enrichment has been made out, the Court should first consider whether a monetary remedy is appropriate. Martin is clear that if there is unjust enrichment between married spouses, the Court should consider whether an adequate monetary remedy can be provided by the operation of the FLA’s equalization provisions, including, “where necessary” by unequally dividing NFPs under s. 5(6) of the FLA.

[166] The circumstances to justify meeting the stringent test of unconscionability in section 5(6) of the FLA for an unequal division of property must “shock the conscience of the court”: see Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.

[167] There are no facts in this case that would justify invoking section 5(6) of the FLA.

[168] A remedy may be cautiously crafted to remedy the unjust enrichment by a monetary amount if the provisions of the FLA are not adequate. Only if all these sequential steps have been assessed as inadequate to address an unjust enrichment is the remedy of imposition of a beneficial interest in property is to be considered.

[169] Associate Chief Justice Hoy found in Martin that the unjust enrichment was adequately compensated by the NFP payment. She stated, at para. 67, that she left “for another day the question of what should be done in those rare cases where monetary damages for unjust enrichment arising out of marriage cannot be adequately addressed by the equalization provisions of the FLA [Emphasis added]”.

[170] Family law cases for married couples are difficult and draining. The provisions of the FLA are clear and provide consistency and predictability for litigants. Adding on the layer of “duelling quantum meruit” claims to the legislative scheme creates uncertainly, confusion, costly trials, and unpredictability.

[171] Constructive trust claims such as in this case require a view of the total picture of contributions in a marriage to assess the context of whether the elements of unjust enrichment have been met.

[172] I conclude that, even if the elements of unjust enrichment had been made out, this is not a rare case warranting a remedy other than the division of property in the NFP. Trust claims are not to be routinely advanced between married parties and are limited to cases of clear inequity that shocks the conscience of the court requiring intervention.

[173] I agree with the concerns expressed by McKelvey J. in Straub v. Straub, 2012 ONSC 3819, 32 R.F.L. (7th) 415 and his confirmation of the limited availability of constructive trust claims between married parties.

[174] In Straub, the husband claimed an interest in the increased value of the home post separation and the wife sought entitlement to the increased value of the husband’s portfolio post separation. Both claims were dismissed. Justice McKelvey found that neither party had made any contribution post separation to the assets held by the other. He confirmed, at para. 109, that it is a rare case where trust claims apply between married spouses governed by the FLA:

In my view, the statutory framework for equalization should be applied routinely, and it will be a rare case where a court will apply the constructive trust doctrines in situations which are governed by the statutory framework. There should be a high threshold before departing from the statutory guidelines. I also feel it is significant that the provisions of the Family Law Act have provisions which allow for an unequal distribution in cases where an equal distribution would be unreasonable. This reinforces my view that the law relating to constructive trusts has little relevance in cases which are governed by the statutory framework.

[Emphasis added.]

[175] Applying the FLA, in the agreed upon NFP for the Respondent at separation is (-$63,070.07). In this calculation, includes the Home is her asset, as well as all her debts, including the Revenue Canada debt. There is no issue that all these debts must be paid.

[176] The Applicant’s agreed upon NFP in at separation, with the Home registered as an asset of the Respondent’s, is also less than zero (-$10,959.49).

[177] The Applicant advances a trust/unjust enrichment claim for a 50% interest in the Home based upon his contribution and that of his father for labour to improvements in the Home. If the Applicant’s claim is successful, his NFP at separation is $106,666.00 and he would be required to pay the Respondent $52,833.00. This would leave him in a positive asset position of $52,833.00.

[178] If the Applicant’s trust claim succeeds and he is to be a 50% beneficial owner of the Home at separation, the Respondent would be in a significantly worse negative NFP position of (-$137,910.49) after taking into account the $52,833.00 notionally payable by the Husband. Counsel for the Applicant argues that this result is not unfair because, applying the case law under the FLA, any negative net worth is not to be equalized.

[179] This is not the rare case referenced by Hoy A.C.J in Martin, as suggested by counsel for the Applicant. There should be a high threshold before departing from the statutory guidelines of the FLA for married couples.

[180] There is no unjust enrichment and a constructive trust claim should not be superimposed to trump the provisions of the FLA.

[181] Caution should be exercised in advancing trust claims when the parties are married. The costs and complexity of such claims flies in the face of the purpose of the FLA to provide clear, predictable rules for the division of property after married parties separate. The cost and complexity is amply illustrated in this modest case. The Applicant’s claim based upon unjust enrichment and constructive trust is dismissed.

[182] The Applicant has made interest payments on the joint debt of the parties for their line of credit. This debt predated the acquisition of the Home. The Respondent should repay the Applicant for half of these debt payments made on her behalf.

Spousal Support Claim of Respondent

[183] The Respondent has the burden of proving entitlement and need in her claim for support.

[184] The Applicant argues that, as the slip and fall accident giving rise to need for support took place well after the separation of the parties, he is not responsible to pay spousal support. The amendment to the pleadings claiming support was over four years post separation.

[185] The Respondent argues that although she did not contemplate the need for spousal support at separation, the medical problems preventing her from working now began during the marriage and crystalized with the slip and fall, which took place 22 months after the separation. The accident exacerbated a pre-existing condition. She did not amend her pleading to include a claim for support while she was in receipt of her salary, although not working. It was only after efforts at rehabilitation failed, and she was eligible for disability payments, that the claim for support was advanced.

[186] The parties are still married and I grant the divorce claimed by both parties in their pleadings.

[187] The claim for spousal support is made pursuant to section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In deciding whether to grant a spousal support order, a court must take into account the following factors under section 15.2(4):

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

[188] The objectives of spousal support orders are listed at section 15.2(6) of the Divorce Act:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Facts Relevant to Claim for Support

[189] The parties separated in November 2012 after a fifteen-year marriage with two teenage dependent children. The slip and fall accident precipitating the claim for spousal support occurred in September 2014, approximately 22 months after separation. At the time of the accident, the parties were still involved in litigation. The settlement with respect to the children was reached in March 2014 with the assistance of input from the Office of the Children’s Lawyer months before the accident. One child resided with each party.

[190] Until the Revenue Canada debt was finalized in April 2016 when leave to appeal to the Supreme Court of Canada was denied, it was difficult to resolve the financial issues between the parties.

[191] The litigation for the slip and fall is outstanding. The Respondent seeks compensation for loss of income in that lawsuit as well as other relief. An issue in the litigation that arose at mediation is whether the Respondent had a pre-existing medical condition.

[192] The Respondent testified that at the time of separation, she did not foresee claiming spousal support as she had been proudly financially independent throughout the marriage. She had provided financial security to the family when the Applicant’s income and circumstances were unpredictable. She had the dream of finishing her science degree and pursuing her studies as a medical doctor. Due to her native status, the costs of medical school would be covered. After the slip and fall, her employer kept her on full salary for two years.

[193] It was only in early 2017 after she was discharged from her employment and it was uncertain whether she would qualify for long-term disability that the Applicant amended her claim to seek spousal support.

[194] The case law supports that entitlement to support may depend on whether the genesis of the problem giving rise to the need for support existed during the marriage.

[195] The Respondent pleaded and testified that she had pre-existing problems during the marriage, including allegations of physical abuse, contributing to her present medical problems. The entire medical file of her family doctor Dr. Wong was not in evidence, except one medical record dated September 30, 2010.

[196] There was one incident of a report of an assault by the Applicant on September 28, 2010. It is noteworthy that the Applicant called the police and the Respondent was arrested, charged with assault, and subject to bail conditions for allegedly trying to push the Applicant down the stairs.

[197] After this incident, on September 30, 2010, the Respondent went to see her family doctor. Dr. Wong’s note confirms:

office visit, crying still, problem with husband, financial difficulty, agitation, decreased mood, husband grabbed right forearm, stepped on right foot, assaulted by husband, patient was arrested by police and charged for assault by police, fingerprinted, humiliated by police exam.

Social history, going to move to girlfriend's place place, move-in date October 2010. Now, right shoulder pain, right hip pain.

Assessment depression situational crisis, multiple soft tissue injuries.

Plan, Valium not working, Percocet one tablet TID PRN, dispense 15, advise only a limited amount now. Ativan 1 mg q.h.s. p.r.n., dispense six tablets only, 25 minutes supportive therapy, discussed coping situations and mechanisms, 12:30 PM to 1PM. No active suicidal ideation. Discussed crisis centres and if worse go to crisis Centre. Advised to return to clinic for follow up in one week.

[Emphasis added.]

[198] The letter of Cr. Craig Sokoluk on March 10, 2014 is to the family doctor for a rheumatology consultation that occurred fourteen months after the separation, and six months before the slip and fall accident. Dr. Sokoluk confirms a long-term history of hip problems dating back eight years:

Thank you for referring this 42-year-old woman for a rheumatology consultation. She was evaluated March 6, 2014 for the problem of arthralgia.

The patient has been experiencing discomfort from her hips for at least eight years. In the past she suffered a left-sided dislocation which was treated conservatively with physiotherapy. She was assaulted four years ago and has had a worsening of her hip pain since that time. She currently reports pain from the anterior region as well as from the lumbar spine. Her pain worsens upon walking. On occasions she has noticed a clicking sensation from the hips. She has tried a number of NSAID’s, most recently Ibuprofen.

She also reports discomfort from the bases of her thumbs.

She does not have a history of psoriasis, inflammatory eye disease or inflammatory bowel disease. There are no further features suggestive of a diffuse connective tissue disease process.

Her past medical history is noteworthy for the aforementioned left hip dislocation, kidney stones, a cholecystectomy, plantor fasciitis, iron deficiency, bladder problem and surgery for endometriosis.

Her family history was noteworthy for several members with arthritic conditions.

[Emphasis added.]

[199] The x-ray taken the day of the slip and fall confirms degenerative changes in the hip joints as of September 2014, less than two years post separation.

[200] The Respondent had purchased mortgage insurance for Accidental Disability Benefits. The insurer has had access to the entire medical file of the family doctor. The insurer has denied coverage as of November 2016. The letter from the Mortgage Protection Plan states that the: reason for the denial of coverage was the pre-existing condition that had continued for years

According to the Terms of your Insurance, you were advised that your coverage is for Accidental Disability Benefits only.

Your coverage states; Disability Insurance is provided only for bodily harm resulting directly from an Accident. Accident means a sudden, unexpected, unforeseeable, unavoidable external event. Disability Insurance specifically excludes injuries or disabilities caused by sickness, illness, or disease.

The information on file from Dr. Wong indicates that your current disability is due to chronic pain, syndrome and right hip labral tear. You had a slip on September 26, 2014 which aggravated your pre-existing condition of osteoarthritis of the hips and chronic back pain. You were also seen prior to the effective date of coverage (March 1/14) for hip discomfort ongoing for a period of 8 years due to degenerative osteoarthritis.

Since your chronic hip and back pain is due to a medical condition and not solely due to an accidental injury, we are unable to consider benefits under this Certificate of Insurance.

[Emphasis added.]

[201] These records confirm that the Respondent had a pre-existing medical condition present during the marriage of hip and back pain, that was exacerbated by the slip and fall injury. The various pre-existing medical problems during the marriage did not impair the Respondent’s ability to work and attend school.

[202] The letter to Dr. Al-Rawi from Dr. Whelan, an ambulatory consultant, dated May 24, 2016, describes the Respondent’s current medical condition, and also confirms his view that, due to degenerative changes in the hip joint, the only viable treatment for the Respondent is a hip replacement.

[203] He describes in some detail the Respondent’s significant difficulties in her current condition:

She has had 1 year of physiotherapy for hip, back and lateral-sided leg pain. She has had Cortisone shots as I understand it, for what is thought to be bursitis and/or sciatica.

Currently, she is on narcotics by way of Hydromorphone, both short-acting and long-acting preparations. These were prescribed by yourself. She takes Lyrica, Meloxicam. The latter she has some side effects. She has been off work for at least a year now. She has opposite-sided left leg pain. She uses a wheeled walker to ambulate.

On examination, she has pain overlying her entire right lower extremity, including her thigh, her lower leg, her foot and ankle, as well as her hop. She describes back and leg pain. Both are equally disabling.

Her x-rays are telling. She has joint space narrowing medially, superiorly, and laterally, consistent with some early arthritic changes. She has some osteopenia in and around the joint.

She smokes about a pack a day.

I think there are many reasons why this lady would be a poor operative candidate by way of labral repair. I know she has an MRI scan that demonstrates a labral tear, but I suspect this is on the basis of degenerative changes in the joint, which are apparent on x-ray. I do not think she would do well with arthroscopic surgery for the reasons outlined above.

I would suggest that she see someone regarding a hip replacement, as I feel that is the only way to give her a lasting and comprehensive answer to her ongoing discomfort and her disability.

[204] Presently the Respondent is on a waiting list for assessment for a hip replacement.

Support Case Law

[205] The two leading Supreme Court decisions on spousal support are Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420.

[206] In Moge, L’Hereux Dube J. wrote, at para. 48, that “[w]hat the Act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender.”

[207] In Bracklow, McLachlin J. (as she then was) commented, at para. 44, that “[i]t is not the bare fact of marriage, so much as the relationship that is established and the expectations that may reasonably flow from it that give rise to the obligation of support under the statutes.” She held, at para. 15, “that the law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory.”

[208] It appears clear that the first two grounds do not apply in the present case. The non-compensatory ground encompasses factors such as need and means of the parties. Justice McLachlin commented, at para. 48 of Bracklow, that: “Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.”

[209] There are few cases such as this, when a spouse is financially independent at the time of separation and need arises post-separation. The most helpful case dealing with this scenario is Fyfe v. Jouppien, 2011 ONSC 5462, 10 R.F.L. (7th) 336. Justice Chappel observed, at para. 3, that neither Moge nor Bracklow specifically addresses the question of need arising post separation.

[210] Justice Chappel provides a helpful review of the few cases addressing need arising post-separation. The cases are factually dependant. He outlines the principles that emerge from the various cases. The more recent case of Peters v. Peters, 2015 ONSC 4006, 64 R.F.L. (7th) 436 adds further principles.

[211] I summarize the relevant principles in assessing entitlement to support for circumstances arising post separation drawing on the principles outlined in Fyfe v. Jouppien as well as Peters and considering the facts of this case:

(a) The question is whether, taking into account all of the circumstances of the particular case, and the objectives underlying a spousal support award it is reasonable on an objective analysis to expect the parties to continue to be responsible for each other in the event of post separation need, and if so, for how long. (b) Economic hardship in light of the new circumstances must be in the reasonable contemplation of the parties at the time of the breakdown of the marriage. Marriage is not a lifetime future guarantee for support. (c) The starting point is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. If there is not, it may be reasonable to expect that the parties will support each other for a reasonable period of time for need arising post-separation. (d) The passage of time may, or may not be an important consideration in assessing entitlement. (e) Time will be less important if the parties have not made a clean break and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, the conclusion may be that the expectation of mutual support and dependency arising from the marriage relationship has continued. (f) The presence of ongoing shared responsibility for the raising of children post separation is very relevant to the question of continued mutuality and interdependence. (g) However, where the parties both take steps post separation to unravel their interdependencies, effect a clean break, and do not have children in their care, then the objective of promoting self sufficiency within a reasonable time post separation becomes more important. (h) If the situation giving rise to need is a medical problem, then the timing of the onset is important. If a disability arises out of a pre-existing known condition that existed during the marriage or at the time of breakdown of the marriage, there would exist a connection between the disability and the marriage or its breakdown. (i) If the marriage is short lived, the objective of promoting self sufficiency will be given greater weight in assessing entitlement to support.

Analysis of Entitlement to Support

[212] I reiterate the core question: taking into account all of the circumstances of the particular case, and the objectives underlying a spousal support award, is it reasonable on an objective analysis to expect the parties to continue to be responsible for each other in the event of post separation need, and if so, for how long?

Presumption of Mutuality and Interdependence

[213] In this case, there is no evidence prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage. This is a fifteen-year marriage with two children, who are still dependent. Each parent is presently taking primary responsibility for one child as they pursue their final year in high school (Reign living with the Applicant) and in first year university (Justice).

[214] The Respondent’s native status, which is passed to the children, enables them to pursue their studies without cost. This is a significant financial advantage to both parties and the children.

Interdependence During the Marriage

[215] During the fifteen-year marriage, the Respondent provided stability and financial support to the children and to the Applicant when he experienced several years with serious financial difficulties. It was not until the last two years of the marriage that the Applicant was in stable employment with consistent earnings which exceeded the earnings of the Respondent.

Time

[216] The slip and fall took place 22 months post separation, but the pleadings were not amended until four years post separation, when the Respondent was terminated from her employment. I find that the time post-separation, while the parties are still litigating and married with dependent children, is not an unreasonable period of time to make a claim to determine entitlement for spousal support. The Respondent could not amend her pleading and claim support while she was still in receipt of her full salary. The employer did not terminate the Respondent from her position for two years and therefore she had no financial need until that termination took place. That the Applicant was not called on for support at an earlier time due to the generous conditions of the Respondent’s employment is to his advantage and should not defeat the Respondent’s claim.

Pre-existing Injury During the Marriage

[217] The available medical evidence supports the conclusion that the Respondent had a pre-existing condition during the marriage that was significantly exacerbated by the slip and fall accident: see paras. 195-203.

[218] The Respondent alleges that there was a history of physical abuse during the marriage that was a contributing factor to her present condition. The note made in the file dated September 30, 2010 is some confirmation of this allegation: see para. 197. I do not need to rely on this allegation to determine entitlement to support, as the available evidence confirms a pre-existing medical condition during the marriage.

Conclusions

[219] I conclude that the Respondent is entitled to some time limited support to see her through her present difficulties, but not to indefinite spousal support. During the fifteen-year marriage, she financially supported the Applicant in difficult times when he had back problems, and when he declared personal bankruptcy.

[220] It appears that the only viable treatment for the Respondent to alleviate the pain is a hip replacement. She is presently being assessed and is on the waiting list. She is taking heavy doses of medication to control the pain, which is worrisome and may create dependency problems.

[221] The Applicant is supporting Reign, who is attending grade 12 and will go to university next year living in residence. The Applicant did not claim any child support. Justice is attending university and living in residence that is fully funded. I find in these circumstances that any spousal support should begin when Reign begins attending university in September 2017. Though not argued, it would be reasonable that there should be a notional offsetting of spousal support and child support until September 2017.

[222] The Respondent is in receipt of $3,000.00 per month long term disability insurance, which is non-taxable. She also receives small monthly amount from her insurance on two of the three credit cards with debts that accrued during the marriage, enabling her to make the monthly interest payments without penalty.

[223] Based upon my determination of the trust claim, the Respondent is the sole owner of the Home. There is a rental apartment that is unoccupied. The Respondent testified that she may move to the basement, and rent the upper two floors. The Respondent is obliged to maximize her income potential prior to claiming against the Applicant. I attribute $1,350.00 income per month to the Respondent, based upon the income generated on the basement apartment at the time of separation.

[224] Counsel for the Applicant, at my request, submitted Spousal Support Guidelines with the Respondent’s present income, as well as a calculation including the imputed rent. The mid-point of spousal support including the imputed rent is $282.00 per month. If the Respondent is required to sell the Home to pay off her debts and is no longer in receipt of the rental income, then the midrange of support would be $763 per month.

[225] Based upon the Respondent’s present circumstances and assuming she remains in the Home, the spousal support shall be paid in the amount of $282.00 per month beginning September 2017 when their son is no longer residing with the Applicant, for a period of three years. If the Respondent is able to return to full time employment prior to that time after successful treatment, the support shall end.

[226] The parties shall exchange their tax returns annually beginning in May 2018 for three years to determine the mid-range of spousal support. Even if the surgery does not rectify the problem, the spousal support shall terminate after three years, balancing entitlement with the need for finality and recognizing the principle that marriage is not a form of lifetime insurance.

[227] Similarly, if the Respondent receives income replacement in the outstanding action, the spousal support shall end. The Respondent shall provide a direction to her counsel in the litigation to allow information to be provided to counsel for the Applicant.

Interest Payments of Joint Line of Credit

[228] The Applicant has made interest payments on the joint line of credit debt of the parties. This debt predated the acquisition of the Home and is not relevant to the Applicant’s trust claim. However, the Respondent should repay the Applicant for half of these debt payments made on her behalf.

Costs

[229] If the parties are unable to agree with respect to costs, the parties may make brief written submissions attaching any offers to settle within 30 days of the release of these reasons.

J. Wilson J.

Released: May 19, 2017

Schedule “A”

Amended

SUMMARY OF HISTORIC INCOME

Year	Applicant	Respondent
1997	$7,396 gross, - $3,603 net	$33,320
1998	$18,163	$16,752
1999	$36,610	$18,969
2000	$37,625	$31,984
2001	$43,990	$44,877
2002	$30,346 ($4,408 RRSP)	$41,400
2003	Unknown	$41,400
2004	$3,453 (post-bankruptcy)	$43,528
2005	$25,665 gross - $14,314 net	$54,838
2006	$60,200 gross - $30,456 net	$64,193
2007	$44,739 gross - $12,352 net	$61,000
2008	$47,880 gross - $13,745 net + $22,000 disability	$61,000
2009	$15,933 + $24,000 disability	$61,602
2010	$6,065 + $24,000 disability	$65,756
2011	$61,067	$65,209
2012	$74,391	$63,798
2013	$86,370	$67,018
2014	$77,147	$67,018 (based on oral evidence)
2015	$82,011	$67,018
2016	$82,243	$50,000 (taxable plus disability)

COURT FILE NO.: FS-13-386523 DATE: 20170519

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JUSTIN BRADLEY RYAN Applicant – and – CORENA MARGARET RYAN Respondent REASONS FOR JUDGMENT Wilson J.

Released: May 19, 2017

[1] Kerr v. Baranow, at para. 48.