COURT FILE NO.: FC-15-271-00 DATE: 20170407 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDRA MILENA BARRERA CORREA, Applicant AND: SERGIO IVAN CANO VEGA, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: A. Sam Zaslavsky, for the Applicant The Respondent Self Represented

HEARD: March 2, 2017

Endorsement

Introduction

[1] This is the applicant mother’s motion for summary judgment. In her motion she requests:

1. An order for summary judgment giving her custody of the two children, ongoing and retroactive support, and an interest by way of constructive trust in the common residence of the parties.
2. Alternatively, an order to strike the respondent’s pleadings by reason of his failure to pay a costs award and by reason of his failure to make disclosure.
3. Alternatively, an order for security for costs in the amount of $25,000.

[2] The respondent Mr. Vega resists the mother’s motion. Although he consents to an order that the applicant have custody of the children, and the parties have agreed on the terms of the mother’s travel with the children, the respondent otherwise states that a trial of the remaining issues is required.

[3] These parties never married. They had a relationship which began in 2009. They resided on and off from June, 2010 to July 20, 2013. There were lengthy periods of separation in between.

[4] There are two children of the relationship who have lived with the applicant since separation. Jacob is 6 years of age and Emmanuel is 4. The respondent did not acknowledge that Emmanuel was his son and upon commencement of these proceedings, he demanded DNA testing. Because of this request, he exercised access initially to Jacob only and did not see Emmanuel. DNA testing confirmed paternity on August 19, 2015. Since DNA testing was confirmed Mr. Vega has had short three-hour visits to Emmanuel prior to his weekend access with Jacob.

[5] This has been difficult litigation. In all of the appearances there appears an underlying theme wherein the court has had concerns regarding the litigation conduct of Mr. Vega.

[6] In July, 2015, Graham J. conducted a case conference. He expressed concern about Mr. Vega’s job loss immediately before the case conference. Graham J. ordered certain disclosure including proof of support payments that Mr. Vega claimed that he had previously made, as well as Mr. Vega’s 2014 income tax return.

[7] After this Mr. Vega brought a motion. The matter was eventually returnable before Sutherland J. on October 15, 2015. At that time, Mr. Vega asked that his friend, Mr. Emad Elguindy, speak on his behalf. Sutherland J. permitted this and also ordered questioning. Upon return of the matter on October 15, 2015, Sutherland J. found that the respondent did not answer questions properly put to him by applicant’s counsel. A re-attendance was necessary and costs thrown away for the questioning were awarded to the applicant in the amount of $1,648.93 plus costs of the motion of $1,200. Sutherland J. specifically stated that he “was not impressed by the conduct of Mr. Vega’s friend [Mr. Elguindy]” and that, although he could not punish Mr. Elguindy (because he was not a lawyer), his behaviour “will not be tolerated by this Court.”

[8] The costs for the questioning were payable within 30 days and the costs of the motion were payable within 60 days. Mr. Vega acknowledges that he has not paid those costs.

[9] Once questioning was completed the parties attended before Eberhard J. on October 29, 2015. She ordered that Mr. Elguindy was not permitted to represent the respondent. The respondent’s motion to reduce child support was dismissed with costs of $3,000 enforceable as support. It is unknown whether these costs have been paid or not. Mr. Vega was ordered to pay $900 per month in support based upon imputed income of $60,000 per year.

[10] When the parties appeared before Graham J. for a settlement conference on January 4, 2016, Mr. Vega was unprepared partly because his computer was infected with viruses and he could not receive the settlement conference brief served by the applicant. The matter was adjourned on terms that Mr. Vega’s pension be frozen and that the applicant be permitted to amend the application in order to claim retroactive support as well as a constructive trust in respect of the common residence which was owned by Mr. Vega.

[11] The settlement conference was held on February 11, 2016. Extensive disclosure was ordered. According to the material filed by the applicant, much of that disclosure has not yet been made.

[12] That was confirmed at the trial scheduling conference. At the time of the trial scheduling conference, held on June 17, 2016, Graham J. found that disclosure had not been made by the respondent. The matter was set down for trial during the November 2016 sittings. The trial management conference endorsement confirmed that the respondent would not agree to any facts in this matter. All documentary evidence to be relied upon by either party was to be served with the respondent serving his written material on or before September 1, 2016. Apparently nothing has been served other than the material which was attached as an exhibit to the applicant’s affidavit.

[13] On October 21, 2016 an exit pre-trial management conference was held. Mr. Vega did not appear. Wildman J. set down this motion for summary judgment and to strike pleadings. The matter was removed from the trial list in November 2016. It is presently scheduled for trial in May 2017.

[14] The applicant notes that the respondent has given little or no quarter in this litigation. He has been completely uncooperative. Mr. Zaslavsky on behalf of the applicant pointed to the request to admit served by his firm on August 15, 2016. Many of the documents came from Mr. Vega including correspondence from his solicitor regarding the closing of the sale of the common residence. Notwithstanding this the respondent refused to admit to the authenticity of the documentation noted in the request to admit. He demanded originals of the documentation including documentation filed and provided by himself. It is apparent that any trial in this matter will not be an easy process.

[15] For the reasons set out below, I have determined that summary judgment be granted and that the matter need not proceed to trial. This is subject to the dismissal of certain claims by the applicant including her claim for a constructive trust which Mr. Zaslavsky indicated I was entitled to dismiss rather than refer to a trial; he confirmed that his client wished to avoid a trial on either access or for a constructive trust claim against the home.

[16] Based upon the order for summary judgment I do not need to consider the issues of striking Mr. Vega’s pleadings or for security for costs.

Analysis

[17] This is a motion for summary judgment under Rule 16 of the Family Law Rules. Under rule 16(6) summary judgment may be granted where “there is no genuine issue requiring a trial of a claim or defence.”

[18] Rule 16(4) sets out the evidentiary requirements for a party seeking summary judgment:

a. The party bringing the motion shall serve an affidavit or other evidence that sets out specific facts showing no genuine issue requiring a trial. b. The responding party has a duty to respond. Under Rule 16(4.1) the party responding to a motion for summary judgment shall not make mere denials but must provide by affidavit specific facts showing a genuine issue for trial.

[19] It must be noted that most summary judgment motions have been made been brought in the context of child protection proceedings. Rarely is a summary judgment motion brought in matters similar to those raised in the applicant’s motion, including a claim for custody under the Children’s Law Reform Act or for child support under the Family Law Act. There is no reason for these types of motions being rare. Where there is a clear case without a genuine need for a trial, summary judgment is remedy that can and should be taken advantage of especially in these times of increasing litigation costs and concerns about proportionality. Summary judgement is a claim that can as easily be used in general family law matters as in cases for child protection.

[20] The case law makes clear that the onus is on the moving party to provide clear and cogent evidence showing that there is no genuine issue for trial: see Children’s Aid Society of Halton (Region) v. A.(K.L.), 2006 ONCA 33538 , [2006] O.J. No. 3958 (C.A.) at para. 19 and Catholic Children’s Aid Society of Hamilton v. A.(M.) , 2012 CarswellOnt. 548 (Ont. S.C.J.) at para. 35.

[21] The case law has described this test or requirement for no genuine issue for trial in several ways. For example, the court has stated that where the result would be a “foregone conclusion” summary judgment should go: see Children’s Aid Society for the County of Lanark and Towns of Smiths Falls v. S.M. , [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21 . Another way to state the test was set out by Justice A. Pazaratz in para. 43 of Children’s Aid Society of Niagara Region v. S.C., 2008 ONSC 52309:

No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.

[22] If the burden is not satisfied by the applicant to show no genuine issue for trial, the matter should proceed to trial. However, the once the applicant makes a prima facie case, the evidentiary onus shifts to the respondent. The respondent must then lead affidavit evidence of specific facts showing that there is a genuine issue for trial: see Children’s Aid Society of Northumberland v. K.(S.), 2012 ONSC 6847 (Div. Ct.) at para. 28 . The respondent must put his or her best foot forward and cannot rest on mere allegations or denials: see rule 16(4.1) of the Family Law Rules as well as Children’s Aid Society of Hamilton v. K.(F.), 2014 ONSC 576 at para. 37 .

[23] The summary judgment rule has recently been amended. As a judge hearing a motion for summary judgment I now have new fact-finding powers. These are set out in rule 16(6.1). I may now weigh evidence, make credibility findings on the evidence or draw inferences of fact from the materials filed. I may also direct a mini-trial or focused hearing under rule 16(6.2).

[24] The Supreme Court of Canada recently considered similar amendments to the Rules of Civil Procedure in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87. I must first consider the motion for summary judgment without regard to the new fact-finding powers under the Rules. However, if on the basis of the materials filed I find a genuine issue for trial I am then to determine whether can be avoided or the process be followed using the new fact-finding tools provided through the amendments to the rule.

[25] In addition, I must also consider rule 2(2) and (3) of the Family Law Rules. Those rules provide that the primary objective of the Family Law Rules is “enable the court to deal with cases justly.” Rule 2(3) provides the criteria, often referred to as the “proportionality” rule as follows:

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[26] In inference to this Rule, the court can have regard to litigation conduct similar to that noted above. Of concern the willingness of the respondent to cooperate and to provide disclosure required for trial. If a finding is made that the respondent has been uncooperative or alternatively has been unwilling to make admissions as are necessary to ensure the smooth functioning of the court during a trial, the respondent may be asked to explain his litigation conduct in the context of a summary judgment motion.

[27] The respondent has agreed that the applicant should have custody of the children. Accordingly, the remaining issues outstanding are as follows:

a. The applicant has requested that access be reasonable access on reasonable notice rather than specified access. b. The applicant has requested an order for ongoing child support in the amount of $1,227 per month based upon income attributed to the respondent of $84,552. c. The applicant has requested retroactive child support to the date of separation which totals $27,664. d. The applicant requests a constructive trust remedy of by way of unjust enrichment in respect of the common residence in the amount of $5,622.

Custody and Access Issues

[28] The applicant requests custody of the two children. The respondent confirmed that he did not object to a final order granting the applicant custody. There was an issue as to whether there could be contact with the children when the applicant travelled out of country with the children; this was resolved during argument. Mr. Vega indicated that he had no objection to the applicant travelling with the children so long as he was given an itinerary and reasonable contact with the children during that travel. Mr. Zaslavsky confirmed that his client was in agreement with this. Accordingly the only remaining issue on this summary judgment motion is the respondent’s access to the children.

Positions of the Parties

[29] Ms. Correa states that the respondent has not been consistent with regard to access. She notes that Mr. Vega did not acknowledge paternity for the youngest child Emmanuel until a positive paternity test was received in August, 2015. Since then Mr. Vega has not had overnight access to Emmanuel, with the only time sharing being several hours with Emmanuel prior to his more extended access visit to the older child Jacob. Ms. Correa says that Jacob does not want to spend overnights with the respondent and that the respondent has not exercised overnight access on any sort of consistent basis. She says that Mr. Vega cannot handle one or both children for overnight access visits and that he gets frustrated, uses corporal punishment and often has her come to pick up the children prior to the end of the visit. As well, she notes in her affidavit that neither Jacob nor Emmanuel want to go with the respondent and that since December, 2016 he has not had any overnight access and has only seen the children on two or three occasions. She requests that access be limited to reasonable access on reasonable notice effectively at her discretion.

[30] During submissions, Mr. Zaslavsky stated that his client did not want a trial over access issues. He indicated on the record that if the court was inclined to dismiss the motion for summary judgment for unspecified reasonable access, then it could determine overnight access taking into account the access requests of the respondent without the necessity of a trial.

[31] The respondent requests regularized overnight access every second weekend as well as a right to telephone communication with the children and a week at Christmas.

[32] He acknowledges that his access has been irregular. However, he blames the applicant for this. In submissions he said that the applicant discourages the children from being with him and makes excuses when access visits are scheduled, saying that the children are sick when they are not. He says that when the applicant recently went to Guatemala, she refused telephone access to him and that he was only able to talk to the children on two or three occasions when he should have a right to telephone access on three occasions per week.

[33] He also says that if the children do not wish to go with him, he does not force them to do so. He lets them go home when they want to. He said that he had voluntarily ended access visits not because of his frustration with the children but because the children wished to go home.

[34] When I asked Mr. Vega why his access been sporadic and why he had not exercised access as he was entitled to under the interim order of Graham J. made July 14, 2015, Mr. Vega acknowledged that he had not consistently exercised access but that if he was given specified access he undertook to “be there for his children” and regularly exercise access.

[35] Notwithstanding the position of Mr. Zaslavsky that he was content that the court set terms of access in the event that summary judgment for reasonable access on reasonable notice did not go, Mr. Vega said that he wanted to have a trial on the issue of access. This is notwithstanding the fact that he only addressed custody and access issues in six paragraphs of his affidavit (paras. 12 to 16 and 19). The affidavit did not specifically address why Mr. Vega has not exercised access in the past, stating only that it is the applicant who cancels access visits and not himself. He certainly does not address the children’s views and preferences and the fact that he brings them home early based upon the children wishing to return home.

Access

[36] As these parties are not married, access to the children is governed by the best interests test contained in s. 24(2) of the Children’s Law Reform Act which reads as follows:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (b) (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (c) the child’s views and preferences, if they can reasonably be ascertained; (d) the length of time the child has lived in a stable home environment; (e) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (f) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[37] I am satisfied on the applicant’s evidence, which is uncontradicted, that access between the children and the respondent is sporadic and inconsistent. It was also acknowledged by the respondent that he has not had any extended access to Emmanuel other than one PA day last year. Emmanuel is now four. The conflict on the evidence concerns only the reason behind the respondent’s inconsistent access record and not whether that access is inconsistent.

[38] There is also a conflict on the evidence as to whether Mr. Vega can adequately manage the children during access visits or uses corporal punishment during his access visits with the children. It does appear to me that Mr. Vega has been given specified weekend access to Jacob and has not always exercised that access. If the applicant unreasonably refused access (without good reason) Mr. Vega could have taken steps to enforce his rights under the Graham J. interim order from July, 2015. He did not do so notwithstanding a number of court appearances since then. Based upon the endorsements of various judges in this matter, it appears that he has not complained about missed access visits or refusals of access by the applicant. This would tend to support the applicant’s position that the respondent really isn’t that interested in visiting with his children and that even if specified access is given the respondent will not exercise that access.

[39] That being said it is also apparent to me that the communication between these parties is abysmal. If there is interference with access or this becomes an issue in the future, it appears as well that the applicant would be in a position to interfere with access if non-specified access is ordered by the court as requested by the applicant.

[40] The major issue that I cannot determine based upon the evidence of the parties given by way of affidavit is the issue of whether the applicant is correct that the respondent gets frustrated easily with the children, cannot handle both of them and physically punishes the children when they misbehave. If I was in a position to make a finding of fact in respect of those issues then specified access would be problematic apart from whether I should provide the applicant some discretion over whether access takes place. However the only evidence that the applicant offers this is in paragraph 18 of her affidavit where she states that the respondent yells at the children and suggested to the applicant that she use “corporal punishment as a method of discipline” stating that Emmanuel (who he sees for two hours prior to Jacob’s access visit) needs a “strong hand”. There is no specific evidence contained in the applicant’s affidavit of any incident where the respondent has inappropriately disciplined Jacob during access visits or where he became frustrated with Jacob and Emmanuel together.

[41] As well the applicant’s position that I can specify overnight access to the children in order to avoid a trial belies any implication that there might be harm to the children from overnight access to the respondent. The only issue emphasized over and over again is the inconsistency of the respondent rather than the issue of whether any harm may come to the children during those visits. Based upon this the applicant has not proven that there is no genuine issue for trial that the children would be harmed by ongoing and regular access between themselves and the respondent.

[42] That being said, is a trial necessary in this matter? The respondent says there is. He was not however able to explain why this was the case in light of the applicant’s position that I could set access for the children pursuant to the requests made by him during the argument of the motion. Essentially what he has asked for was access every second weekend, a week during the summer, holiday access and, if the applicant is permitted to travel, access by Skype or telephone when the children are on holidays. All of these requests are reasonable and can be granted at this motion.

[43] As well, the father’s litigation conduct to date, and his unwillingness to consent to reasonable trial management requests made by the applicant lead me to believe that a trial would be an unnecessary expenditure of resources considering the submissions made by counsel, and the fact that the respondent is receiving the access that he had requested during argument.

[44] There will therefore be an order that the applicant have custody of the children. She will be entitled to travel with the children without the consent of the respondent so long as she provides and itinerary for travel within a reasonable period of time prior to travel and provide contact at least three times a week by either telephone or Skype between the children and the respondent when the children are outside of Canada.

[45] I am also going to order regularized weekend access. Because of the low level of communication, there is a risk that access will not occur if the parties have an argument or are not getting along. Because of the sporadic nature of access, the respondent shall have to give notice to the applicant if he intends upon exercising access for the coming weekend; if notice is not given, access will not take place.

[46] The respondent shall also have access as to the children as follows:

a. Every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. to be extended to the Monday of a holiday weekend at 6:00 p.m. b. Access shall only occur if the respondent gives notice to the applicant on the Wednesday prior to the weekend access visit prior to 6:00 p.m. by email or text message. If notice is not given, no access visit shall occur for the coming weekend, and no makeup access will be required.; c. One week during the children’s summer school holidays on 60 days’ notice to the applicant again by text message or email. If no notice is given, there shall be no summer access and no makeup access will be required; d. Reasonable holiday access over the Easter long weekend, Thanksgiving long weekend and the period between Christmas Eve and Boxing Day each year with the intent that those holidays will be divided equally between the parties; e. Such further and other access as agreed upon by the parties.

Ongoing Child Support

Positions of the Parties

[47] Applicant’s counsel requests ongoing child support based upon the last pay stub filed by the respondent (attached to his financial statement sworn August 3, 2016) shows the respondent receiving $40.65 per hour. Applicant’s counsel extrapolates an annual income of $84,552 based upon the hourly rate being paid for a 40-hour week for a 52-week year.

[48] Mr. Zaslavsky therefore says that child support should be set on an ongoing basis at $1,227 per month under the Child Support Guidelines for two children based upon income being attributed to the respondent in the amount of $84,552 per annum.

[49] Mr. Vega disagrees with this assumption. He points that he has never made income in that amount. He also says that he has always been subject to lengthy lay-offs during most years and that child support should take those lay-offs into account. He did not suggest in argument, his affidavit or in his factum the income to be used for child support for the amount of child support that he should pay. He did not file any updated financial information for the summary judgment motion. However, the last financial statement filed by Mr. Vega indicates that his income is $76,096.80 per annum. [^6]

[50] Since this matter was argued, Mr. Vega has filed an affidavit indicating that one of those layoffs has occurred. According to the record of employment attached, he was laid off on March 9, 2017 for “shortage of work / End of contract or season.” [^7]

Discussion

[51] As discussed this is a motion for summary judgment. The issue is child support which is based upon the respondent’s income as the children reside primarily with the applicant. In essence the issue is whether there is any genuine issue for trial in respect of the respondent’s income or as to whether child support can be set without the need of viva voce evidence.

[52] The applicant states that the respondent is a “thermal engineer” and that he makes a substantial amount of income. As noted above, Mr. Zaslavsky urged me to find the respondent’s income to be $84,552 per annum based upon the hourly rate set out in the respondent’s last pay stub.

[53] As noted above, the respondent argues that he is subject to frequent lay-offs. He says in his affidavit that 11 of his colleagues were laid off last week and that he has a period of lay-off “every year causing substantial loss in income.” [^8] He is presently paying $900 per month; he says that to make him pay any more than this amount would result in a hardship. Notwithstanding these annual layoffs, the respondent said in his financial statement that his annual income was just over $76,000 and, as will be seen below, he had income well in excess of $70,000 in both 2013 and 2014.

[54] The respondent attempted to send a letter to the court indicating that since argument of the motion he has been laid off from his job. If this is the case, I assume this is part of the annual lay-off that the respondent normally goes through and accounted for in his income tax returns filed in this motion for summary judgment.

[55] The issue is whether the court requires a trial to determine the respondent’s income. In my view we do not. The respondent’s income is succinctly summarized in his financial statement. That financial statements indicates that the respondent had the following annual incomes (including lay-offs) as follows:

2010 - $50,922 2011 - $55,044 2012 - $58,884 2013 - $73,377 2014 - $76,480 2015 - $55,722

[56] It is apparent from the respondent’s 2010, 2011 and 2012 Notices of Assessment that periods of time were spent in collection of employment insurance. This confirms the respondent’s suggestion that he was subject to a lay-off on an annual basis.

[57] That being said, it is unnecessary to have a trial of an issue as a trial can hardly add to the income picture of the respondent (the only issue relevant to child support) when the respondent has provided his Notices of Assessment in this matter. I note as well that the respondent requests a trial of the matter; yet he has not provided his income tax returns as ordered by Graham J. on July 14, 2015 and February 11, 2016. It is difficult to determine whether the applicant received employment insurance income in the years after 2012 as the later Notices of Assessment do not make this apparent. He has not provided any evidence of his 2016 income, even though he filed a late affidavit confirming his most recent job layoff. He has not filed an updated financial statement as required by the Rules. It is difficult for the respondent to argue that he has put his “best foot forward” as required by the rules for summary judgment when he has not provided his income tax returns as ordered or even provided evidence of his 2016 income which would have been entirely possible at this stage; he was much more concerned with proving his recent layoff than confirming what he made in 2016.

[58] That being said, the respondent’s income can be easily determined without the need of a trial. The income tax returns are on the record and there is no allegation of income earned outside of his actual employment or as received from employment insurance.

[59] It is unclear what the respondent’s income for 2016 was as the respondent has not provided his information slips for 2016. Although the respondent acknowledges income in his financial statement of $76,096, that financial statement was sworn August 3, 2016 and may not be reflective of the actual income earned by the respondent in that year as there was still four months to go of 2016 when the financial statement was sworn.

[60] Under s. 17 of the Child Support Guidelines I may have regard to the respondent’s income for the last three years; the income for the last three years that I know about is the income for 2013, 2014 and 2015. It is fairest that that income be averaged out at the respondent’s income has fluctuated substantially over the years. There is no clarity as to the periods that the applicant was laid off during any of those tax years. Taking into account the three years’ income between 2013 and 2015, it appears that the average of the income during those three years to be $68,526 per annum. This in my view is the proper amount to be used for child support for the respondent as this can take into account the income fluctuations that the respondent has undergone in the past years.

[61] This would mean that ongoing child support would be payable to the applicant in the amount of $1,017 per month. That support shall commence January 1, 2017.

[62] As requested by the applicant there will an order for annual income disclosure as required by s. 21 of the Guidelines.

Retroactive Support

[63] The applicant requests support retroactive to the date of separation being July 20, 2013. Accordingly the applicant requests retroactive support based upon the respondent’s income commencing August 1, 2013.

[64] The issues define themselves as follows:

a. Is the applicant entitled to retroactive child support? b. If so, should income be imputed to the respondent for 2015 [^9] in the amount of $60,000 per year when the respondent’s actual income was $55,722?

Positions of the Parties

[65] The applicant says that she is entitled to retroactive child support. She bases this upon S.(D.B.) v. G.(S.R.), 2006 SCC 33, [2006] 2 S.C.R. 337 which she says entitles her child support for three years prior to the date the subject was broached, in this case by the issuing of the application in March, 2015. Mr. Zaslavsky says that the notice date of March, 2015 allows the court to go back to the date of separation in July, 2013 which is less than three years prior to the notice date.

[66] The respondent says the applicant is not pleaded retroactive child support and the respondent would therefore be prejudiced by an award back to the date of separation. He also says that he is paid substantial amounts toward child support since separation. In his affidavit (as in his pleadings) the respondent says that he paid $19,278 toward child support. He offers no proof of this amount.

Discussion

[67] Child support is generally payable for the children of the marriage is not intended to benefit the recipient other than to allow that recipient to meet the reasonable needs of the children. It is based solely on the income of the party paying child support under the Child Support Guidelines.

[68] In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada confirmed that considerations regarding a retroactive award of child support provide that entitlement to child support is presumptive and was described in that case as being “automatic”.

[69] In S.(D.B.), Justice Bastarache stated that a support award may be retroactive to “a date more than three years before formal notice was given to the payor parent” (para. 123). In determining whether an award should be retroactive according to S. (D.B.), the court must take into account:

1. Reasonable excuse for why support was not considered earlier;
2. Conduct of the payor parent;
3. Circumstances of the child; and
4. Hardship occasioned by the retroactive order.

[70] In the present case, the respondent appears to have known that he had a child support obligation well prior to the proceeding being commenced. He has stated in his own affidavit that he made payments of child support prior to the commencement of the application. From this it can be inferred that the respondent was well aware of his obligation to pay child support after separation, but prior to the issuance of process.

[71] Furthermore, the fact that the respondent was aware of his child support obligation obviates the need to plead the issue. The respondent argues that there should have been a claim for retroactive child support in the application; however, if the respondent was aware of his obligation to pay child support and made payments of child support prior to the commencement of the application there is no prejudice to the respondent in ordering a retroactive award. He claims that payments made prior to separation should be characterized as child support. After separation, he says he was paying child support as early as November of 2013. There would obviously be no need to otherwise specifically plead the issue when the respondent was already well aware of his obligation.

[72] Regarding the amounts paid for retroactive child support, the respondent says in paragraph 29 of his affidavit that he paid $19,278 toward child support prior to the proceedings being commenced. However, in response to an order that he provide particulars of his retroactive child support paid, he provided a summary of payments that he made toward child support. That summary can be found at Exhibit “T” to the applicant’s affidavit sworn January 24, 2017.

[73] The first four cheques noted on that summary in the amount of $3,700 were paid to Ms. Correa prior to separation. They cannot be credited to child support arrears as child support would not commence until after those cheques were paid.

[74] The applicant acknowledges that the next three cheques of $500 apiece can be credited to child support and were intended to be paid for child support. The first of those cheques is dated November 14, 2013.

[75] The last three cheques total $2,000 and Ms. Correa says that these cheques represented a repayment of a loan that she made to him to purchase a vehicle (eventually transferred into her own name as compensation for the funds she paid toward the common residence). Mr. Vega In questioning did not admit that the cheques dated July 13, February 1, and October 1, 2014 totalling $2,000 were a repayment of that loan. However, he was not able to provide proof of repayment of the loan other than those three cheques. [^10] Those are therefore found not to be child support payments.

[76] Accordingly the only credits for child support is the $1,500 amount represented by cheques 49, 63 and 65 as set out in Exhibit T to the applicant’s affidavit.

[77] The other money that the respondent says that he paid toward child support was a March 27, 2013 bank draft for $12,078. However, in paragraph 27 of his own affidavit, the respondent says that he bought the applicant a truck for that amount. That was transferred to the applicant in repayment of the applicant’s contribution to the purchase of the matrimonial home.

[78] This evidence further shows that the respondent was aware of his obligation to pay child support at least by November 14, 2013 when he made his first payment toward child support of $500. There is no prejudice to a retroactive award and neither is there need for a trial to fix the amount in light of the income amounts of the respondent as made clear by his Notice of Assessment.

[79] In light of the respondent’s inconsistencies, his failure to disclose and his inability to otherwise offer proof of repayment of the $2,000 loan, I do not find that the respondent to be credible in respect of his assertion that he had paid $19,278 toward child support prior to the Graham J. order from July, 2015. I find that the only payments that the applicant received from the respondent for child support prior to commencement of proceedings was the sum of $1,500 and this amount will be credited towards child support arrears.

[80] The only other issue is whether income of $60,000 per year should be imputed to the respondent in 2015 rather than the actual income of the respondent being $55,722 as reflected in his Notice of Assessment.

[81] The basis for imputation of income is the statement made by Graham J. that he was suspicious of the respondent being laid off immediately subsequent to these proceedings commencing. However the respondent’s material as attached to his August 2016 financial statement makes it apparent that this was not the first time the respondent had been laid off. He was also laid off in 2010, 2011 and 2012 as disclosed by his Notices of Assessment. It not inconceivable that the respondent was legitimately laid off in 2015 either. Accordingly, I decline to input income to the respondent as suggested by the applicant. The respondent should pay support based upon his actual income in 2015 of $55,700.

[82] For 2016 the respondent stated in his financial statement of August 2016 that he made $76,096. The respondent could have filed material to correct this amount or to prove what he actually made in that year. As I noted above, the financial statement is only an estimate about what the respondent thought he would make in 2016; the amount could have been otherwise. The respondent has not filed an updated financial statement or material to change this amount. He filed a supplementary affidavit confirming his 2017 layoff; he could have easily filed proof of his 2016 income but did not. For retroactive child support purposes I find that the respondent’s income in 2016 was the amount set out in his financial statement.

[83] The respondent claims that retroactive child support will result in a hardship to him. Other than what was stated in his affidavit, [^11] he has made no financial disclosure which would prove that a retroactive award would result in a hardship to him. He has always had to pay child support for two children. He cannot now complain about child support being paid for both children or that retroactive support would cause an undue hardship to himself any more than the hardship to the applicant resulting from supporting the children without assistance from the respondent since separation to the date of commencement of child support pursuant to the Graham J. award made in July of 2015.

[84] There will therefore be an order to go respecting retroactive child support as requested in paragraphs 9, 10 and 12 of the applicant’s Notice of Motion. For 2015, there shall be an order that the respondent shall pay child support to the applicant mother in the amount of $842 per month for two children based upon his actual 2015 annual income of $55,733 per year.

[85] This latter order concerning 2015 will obviously result in a small credit to child support as the respondent actually paid $900 per month during that year.

[86] The sum of $1,500 shall be credited towards retroactive child support as ordered above.

[87] Child support arrears shall be repaid at $500 per month by the respondent.

[88] I am not going to fix an amount of arrears. That can be calculated by the FRO based upon the Support Deduction Order to be issued in this matter.

[89] There shall be an order for annual financial disclosure as required by s. 21 of the Child Support Guidelines.

Constructive Trust Claim

[90] The applicant claims compensation by way of unjust enrichment as against the home which was owned by the respondent on the date of separation and located at 238 Cedar Avenue in Richmond Hill, Ontario. I understand this to be the common residence of the parties on the date of separation.

[91] The applicant states that she contributed $15,000 towards the down payment. She also says that she loaned the respondent $2,000 toward to the purchase of a vehicle as well as $700 toward repairing the transmission on his car. She also says that she bought a new countertop and sink for the property which was worth $1,500 as well as bricks for landscaping worth $500. She has attached invoices for these items as exhibits to her affidavit.

[92] The applicant acknowledges that when the common residence was sold, the respondent bought her a car for $12,078 and paid her back another $2,000.

[93] The property was in the respondent’s name alone. The applicant makes a claim under the doctrine of unjust enrichment for a constructive trust interest in that property. She calculates what she is owed by simply deducting the money repaid to her for the funds that she expended for purchase of the property and on the respondent’s vehicle. The applicant says she is still owed a net amount of $5,622.

[94] To prove unjust enrichment against another person, the applicant must prove:

1. That the responding party received a benefit;
2. That the claimant suffered a corresponding loss; and
3. There was no juristic reason for the benefit and the loss.

See Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.

[95] It is to be noted that in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, Cromwell J. states 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”. (para. 31). The name says it all. The benefit conferred on the responding party must be proven to be, to at least some extent, unjust.

[96] I am unable to determine that there is no genuine issue for trial in respect of the issue of a constructive trust claim by the applicant. This is because the respondent has pointed out that he paid many other expenses concerning the home in question. He notes that he paid the mortgage throughout. He paid the three month mortgage penalty to have the mortgage discharged when the home was sold. His evidence that the payments that he made toward the home far exceed the amount claimed by the applicant.

[97] As well, it is common ground that there were lengthy periods of separation where the applicant presumably did not live in the common residence.

[98] From the materials it is impossible to determine whether a disproportionate benefit was paid to the respondent by the applicant toward the purchase of the home and toward the respondent’s vehicle.

[99] Applicant’s counsel was clear during submissions that if a genuine issue for trial was discovered concerning the constructive trust issue, the applicant was content to have her claim for constructive trust dismissed rather than proceed to trial on that claim. The benefits to be obtained through trial were disproportionate to the funds that the applicant would have to expend in proving her claim.

[100] The applicant’s claim for constructive trust is therefore dismissed.

[101] The order of Graham J. dated January 4, 2016 freezing the respondent’s pension is vacated. There is no further need to freeze the respondent’s pension; these people were common law and no claim is being advanced against the pension in this summary judgment motion. The property issues are resolved through the dismissal of the applicant’s constructive trust claim.

Striking of Pleadings

[102] As I have determined that constructive trust should go on the major claims, there is no need for me to determine whether the respondent’s pleadings should be struck. I only note that there are claims made by the applicant concerning the children and claims made by the respondent for access to the children. The respondent has not paid his costs and may be liable to having his pleadings struck as a result. However, it is trite that a court should be hesitant to strike pleadings where there are child related issues. In any event I was able to determine those issues on the basis of the affidavit evidence filed and based upon submissions by counsel and the respondent. The request to strike the respondent’s pleadings is dismissed.

[103] As I have granted summary judgment and determined the issues between the parties on a final basis, there is no reason to consider the motion for security for costs.

[104] There was an issue regarding the Graham J. order freezing the respondent’s pension. As I have granted summary judgment, all interim orders made in this proceeding (other than orders for costs, which are a final obligation) are generally set aside. There is no basis for the order freezing the respondent’s pension as there is no right to equalization as these parties were not married. No claim being made in this motion against the respondent’s pension. The order of June 17, 2016 is therefore set aside.

Order

[105] There shall therefore be a final order to go for summary judgment on the following terms:

a. On consent, the applicant shall have custody of the children of the relationship, Jacob and Emmanuel; b. On consent, the applicant shall be entitled to obtain passports for the children without the consent of the respondent and to travel with the children without the respondent’s consent, so long as: i. Prior to travel, the applicant provides the respondent with an itinerary of the planned travel with the children, including flight details and destination details, including the hotel or hotels where the applicant and the children will be staying and contact details; ii. The applicant facilitates contact between the respondent and the children on at least two occasions per week, either through Skype or telephone. c. The respondent shall have access to the children as follows: i. Every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. to be extended to the Monday of a holiday weekend at 6:00 p.m. ii. Access shall only occur if the respondent gives notice to the applicant on the Wednesday prior to the weekend access visit prior to 6:00 p.m. by email or text message. If notice is not given, no access visit shall occur for the coming weekend, and no makeup access will be required.; iii. One week during the children’s summer school holidays on 60 days’ notice to the applicant again by text message or email. If no notice is given, there shall be no summer access and no makeup access will be required; iv. Reasonable holiday access over the Easter long weekend, Thanksgiving long weekend and the period between Christmas Eve and Boxing Day each year with the intent that those holidays will be divided equally between the parties; v. Such further and other access as agreed upon by the parties. d. Based upon a finding that the applicant’s income is $68,526 per year, the respondent shall pay the applicant base child support in the amount of $1,017 per month for the two children of the relationship, commencing January 1, 2017; e. Order to go as per paragraphs 9, 10, 12, 13 and 15 of the applicant’s notice of motion found at Tab 34 of Volume 2 of the continuing record; f. Commencing January 1, 2015 the respondent shall pay child support to the applicant mother in the amount of $842 per month for two children based upon his 2015 annual income of $55,733 per year. g. Any arrears created by this order shall be repayable in the amount of $500 per month until repaid in full, provided that in the event of default of any monthly payment, the full amount h. The applicant’s claim for a constructive trust as against the common residence and as requested in paragraph 14 of her notice of motion is dismissed. i. All interim orders (not including any costs awards made in these proceedings), including the order of Graham J. made June 17, 2016 freezing the respondent’s pension, shall be set aside.

[106] The parties may make written submissions for costs on a ten day turnaround, firstly by the applicant and then the respondent. Costs submissions to be no longer than five pages in length, not including any offers to settle or bills of costs.

McDERMOT J.

Date: April 7, 2017

[^6]: Respondent’s Financial Statement sworn August 3, 2016 at T. 28 of V. 1 of the Continuing Record. [^7]: Ex. A to the affidavit of the respondent sworn March 14, 2017 at T. 37 of V. 3 of the Continuing Record. [^8]: Paragraph 28 of the respondent’s affidavit sworn February 9, 2017 found at T. T. 36 of V. 3 of the Continuing Record. [^9]: The only year for which child support is claimed during which the respondent’s income fell below $60,000. [^10]: In the transcript, the respondent says that the $2,000 “was for the children”; see p. 97, q. 505 of the transcript of October 19, 2015. He says that he cannot provide proof of repayment of the loan, but it was “my word against hers.” [^11]: In paragraph 25 of his affidavit, the respondent says that he is presently being garnished at 50% of his income because of the costs award causing him “financial distraught” (sic.). He also states in paragraph 28 of his affidavit that an order for more than $900 per month would result in arrears and the loss of his driver’s license. But he is presently paying one half of his income according to paragraph 25, and he has not lost his license yet.