CITATION: Willis v. Saunders, 2017 ONSC 6110

COURT FILE NO.: FC-16-749

DATE: 2017/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tara Willis

Applicant

– and –

Matthew Saunders

Respondent

Jessica Abou-Eid for the Applicant

Self-represented

HEARD: September 19 and 20, 2017

REASONS FOR JUDGMENT

Engelking J.

[1] Tara Willis seeks an order for spousal support and for “restitution” in the sum of $59,400 on the basis that Matthew Saunders, her common law partner for approximately seven years, was unjustly enriched by her contributions to the relationship.

[2] Ms. Willis and Mr. Saunders were in a relationship from May of 2007 to October 8 of 2014. According to the evidence of Ms. Willis, they cohabitated from May of 2007 to October 8, 2014 when she left the family home. According to Mr. Saunders, they cohabitated from August of 2007, when they purchased a home together in Petawawa, Ontario, until Ms. Willis left the family home in October of 2014.

[3] When they met in 2003, and when they commenced their relationship in 2007, both Ms. Willis and Mr. Saunders were members of the Canadian Armed Forces. Ms. Willis was with the Military Police and had the rank of Corporal. Mr. Saunders was (and remains) in the Infantry. According to his testimony, Mr. Saunders was a Corporal when he met Ms. Willis in 2003, but gained the rank of Master Corporal in 2006 prior to them commencing their seven year relationship. He then was promoted to the rank of Sergeant in 2009. He has continued in active service, and therefore, has continued to accumulate a military pension.

[4] Ms. Willis elected to leave the army in January of 2008 and was discharged from the regular service in July of 2008; however, she continued to be a member of the reserves until in or about March of 2011. Whatever contribution Ms. Willis had made during her years of service was paid out to her upon her departure from the army. Mr. Saunders neither claimed nor received any of the money that was paid out to Ms. Willis, notwithstanding that much of it would have accumulated over the life of the relationship.

[5] For the reasons that follow, I find that Mr. Saunders has not been unjustly enriched by the actions of Ms. Willis, nor has Ms. Willis suffered a corresponding deprivation. I find, however, that Ms. Willis is entitled to a spousal support award as a result of the breakdown of the parties’ relationship, as set out below.

Issues

[6] The issues to be determined by the court are:

1. Has Ms. Willis made out her claim for a monetary remedy based on the equitable doctrine of unjust enrichment?

(a) Has Mr. Saunders received a benefit or enrichment from Ms. Willis?

(b) Has Ms. Willis suffered a corresponding deprivation?

(c) If so, is there a juristic reason for the unjust enrichment?

2. Is Ms. Willis entitled to compensatory or needs based support?

3. If so, what is the appropriate quantum?

Issue #1 – Unjust Enrichment

[7] Ms. Willis argues that as a result of her contributions to the parties’ relationship, Mr. Saunders was unjustly enriched in that he was able amass a pension which she characterizes as the “joint savings” of the parties. Ms. Willis argues that she is entitled to a division of Mr. Saunders’ pension that accumulated over the life of the relationship. In July of 2014, Mr. Saunders inquired of the Canadian Forces Pension Services as to what portion of his pension Ms. Willis would be entitled were there to be a division pursuant to the Pension Benefits Division Act. While there is some controversy with respect to the dates provided regarding the duration of the relationship (February 2008 to June 2014, as opposed to May or August 2007 to October 2014), the end result of the inquiry was a letter to Mr. Saunders dated July 25, 2014 from Rema Hage, Manager, Director Canadian Forces, Pensions Services 7 (Trial Exhibit #12). In it, the Pensions Services confirmed that Ms. Willis “would receive approximately $59,400 as a result of the division of your pension entitlement for the cohabitation period of 17 February 2008 to 30 June 2014.” Hence the request of Ms. Willis for this amount.

[8] Ms. Willis, of course, would have been automatically entitled to a division of Mr. Saunders pension (as he would have been to hers) had the parties been legally married at the time of separation. They were not. Ms. Willis has thus made her claim of unjust enrichment.

[9] As I have indicated above, the parties first met in 2003 when they were both on tour in Afghanistan. Mr. Saunders was a Corporal in the Infantry and Ms. Willis was a member of the Military Police. Both were subsequently posted at CFB Petawawa. They developed a friendship which progressed to intimacy. However, at some point following 2003, Mr. Saunders had a girlfriend (who would later become his wife), and Ms. Willis met someone who became her fiancé. They decided to remain friends and proceed with their own lives. Ms. Willis did a second tour abroad in February of 2005.

[10] Mr. Saunders married in July of 2005, and one child, Ethan Saunders, was born of this relationship on November 7, 2006. Mr. Saunders testified that his marriage was not going well while he too was on a second tour away, and it continued to fall apart upon his return.

[11] Mr. Saunders and Ms. Willis reconnected in the spring of 2007 and almost immediately began a relationship. According to Ms. Willis, Mr. Saunders moved directly into a home she was renting/looking after in May of 2007. According to Mr. Saunders, he first stayed with a friend when he left his wife and son, then tried to work things out with his wife before ultimately cohabitating with Ms. Willis in a home they purchased together in August of 2007 at 5 Briarwood Drive. Ms. Willis conceded in cross-examination that Mr. Saunders “could have” lived with his friend, Scott, for a period of time, and that he may have used other friends’ vehicles during this period as well.

[12] Prior to the recommencement of the relationship, Ms. Willis had received notice of a posting to Esquimault, B.C. where she was to continue as a member of the Military Police, and where a promotion awaited her. She, in fact, went on a one or two week house-hunting trip to Esquimault, paid for by the Canadian Forces in May of 2007. However, according to her testimony, Mr. Saunders had called her, after her notice of posting but prior to her house hunting trip, to tell her he was leaving his wife because he was in love with her. Notwithstanding that the relationship was in its infancy, the couple having just reconnected, Ms. Willis declined the Esquimault posting, which appears to have been a significant decision that had serious implications for her subsequent military career.

[13] The evidence with respect to this issue appears to confirm that this was the decision of Ms. Willis, and Ms. Willis alone. She testified that she declined the posting because Mr. Saunders “needed her”, and because she feared the relationship would not survive the parties being posted at different bases for a number of years. When her own lawyer asked Ms. Willis if she spoke to anyone about her decision, she indicated she did not recall doing so.

[14] Mr. Saunders testified that at no time had he told Ms. Willis that she should not take the posting in Esquimault. Mr. Saunders indicated that he had, in fact, had a conversation with Ms. Willis at the time wherein he told her that she should not decline the posting because of him. The reasons he gave at trial for having said this were that 1) it was very, very early in their relationship, and 2) he did not want to be later held responsible for the decision she had made. When Mr. Saunders asked Ms. Willis about this conversation in his cross-examination of her, she indicated that she did not recall it.

[15] Ms. Willis testified that the posting in B.C. was “potentially career advancing”, in that she would have received a promotion in rank, an increase in salary (she was earning around $40,000 at the time) and a posting allowance. Her then supervisor, Samuel Rogers, testified that Ms. Willis’ posting to B.C. would have resulted in a promotion, and that, based on her demonstrated capacity, there was “no doubt that she would have been promoted throughout her career.” Mr. Rogers indicated that he, along with others, was shocked that Ms. Willis would jeopardize her career by refusing the posting.

[16] Ms. Willis and Mr. Saunders thereafter remained in Petawawa in the house they had purchased in August of 2007. Ms. Willis testified that while they purchased the home together, meaning presumably that Mr. Saunders contributed to the down payment, it was registered in her name alone due to the complications Mr. Saunders was experiencing in extricating himself from his former wife. Ms. Willis stated that she alone made the mortgage payments on the home during their first year there, but that they shared expenses thereafter.

[17] Mr. Saunders was also engaged in a very difficult legal proceeding with his wife regarding his access to Ethan, and Ms. Willis testified that she supported him in this battle. Mr. Saunders conceded that Ms. Willis was an emotional support to him, but indicated that he also had the support of friends and family at the time. Mr. Saunders ended up with access to Ethan every second weekend, but could not gain more based on the distance between Petawawa, where he and Ms. Willis lived, and Arnprior, where Ethan and his mother lived.

[18] While Ms. Willis was present and engaged with Ethan during his visits with Mr. Saunders, the evidence led was that she never took on a fulltime caregiving role to Ethan in the absence of Mr. Saunders, or to permit Mr. Saunders to concentrate on his career. Indeed, the evidence was that when Mr. Saunders was either on tour or at training, no access was exercised to Ethan.

[19] Additionally, Ms. Willis did not participate in the pick-up and drop-off of Ethan beyond accompanying Mr. Saunders a couple of times at the beginning. Ms. Willis indicated that Mr. Saunders’ wife was too volatile for that, and so she would stay home when Mr. Saunders went to get Ethan or take him back.

[20] Ms. Willis testified that her relationship was Ethan was very good, and that she treated him as if he were her son. Ms. Willis indicated that she introduced Ethan to her family, and they too treated him as if he were one of their own.

[21] Ms. Willis testified that Mr. Saunders went on a four month course to Gagetown, N.S. shortly after they got together, and that he went on three more courses during the relationship, a small arms course, a sergeant’s course and a conduct capture course in Kingston towards the end of the relationship. Ms. Willis believed that Mr. Saunders went up two ranks in the army, from Corporal to Master Corporal, and from Master Corporal to Sergeant, over the course of the relationship. Mr. Saunders indicated that he had already gained the rank of Master Corporal prior to the rekindling of the relationship in 2007, which Ms. Willis conceded was entirely possible in cross-examination, and that he was promoted to the rank of Sergeant in 2009.

[22] Ms. Willis indicated that, to the contrary, her career in the military did not go so well after she declined the Esquimault posting. She indicated that she had been committed to bettering herself ever since her first posting to Afghanistan, so she requested approval to do a yearlong French course after having taken a prerequisite course at the local language school. She was approved to go to Val Cartier, Quebec, for the course, but once again, Ms. Willis declined it because she did not want to be apart from Mr. Saunders and her home and family life in Petawawa. When Ms. Willis sought approval from her superiors to do the yearlong French course at the local language school in Petawawa, it was denied. Ms. Willis appeared to attribute this denial to her being “black-listed” as a result of her refusal of the Esquimault posting, however, it may have just as equally been as a result of her refusal of the Val Cartier opportunity. In any event, Ms. Willis’ decisions with respect to Esquimault and Val Cartier appear to have affected any future opportunities she might have with the military.

[23] Again, there is no indication that the decision to refuse the Val Cartier opportunity by Ms. Willis was a shared one. There was no evidence led that suggested that Mr. Saunders had any part in this decision, or in any way requested or required Ms. Willis to not go to Val Cartier to enhance his own career and opportunities.

[24] Ms. Willis then made the decision, again seemingly unilaterally, to voluntarily leave the military in 2008. She put in her request in January of 2008 and was discharged from the regular forces in July of 2008, though she remained a member of the reserves until sometime later. Subsequent to this, Ms. Willis commenced a BA in Criminology at Carleton University in Ottawa, to which she was part of the time commuting from Petawawa.

[25] Ms. Willis submitted her request for a voluntary release from the forces on January 18, 2008 (Trial Exhibit #2). In it, she stated that she wished to submit her request for the following reasons:

a. While enrolled in the CF as a Military Police member, I have completed two tours to Afghanistan and have been involved in many diverse real life situations as well as preparation exercises. At this point, I feel that I am no longer able to keep up with such an accelerated tempo and am in dire need of a change. In an attempt to slow things down and regroup, I requested to attend the yearlong French course offered in Petawawa but this met with negative results;

b. After two deployments, one on ROTO 1 and presently ROTO 3, I have come to realise that I want a normal life in which I can plan a future that is better suited for me and eventually, a family of my own; and

c. I am considering a Component Transfer upon my release which will enable me to maintain some involvement in the CF while focus on other interests.

[26] Ms. Willis’ request additionally stated: “Though I have enjoyed the experiences and opportunities the CF have enabled me to participate in, I believe it is time to move on to a more suited vocation. I no longer feel challenged in the job that I am doing and wish to pursue other interests.”

[27] Again, I received no evidence from either Ms. Willis or Mr. Saunders which would suggest that this was a shared or even discussed decision, or that it was done to alleviate Mr. Saunders’ responsibilities at home and permit him to focus more exclusively on his career. Although Ms. Willis characterized this as a decision designed to allow her to spend more time with her family, it seems more likely that she saw her opportunities as limited by her previous decisions, and she was tired of being in the military as a result. Additionally, shortly after her discharge from the regular forces, Ms. Willis commenced university at Carleton, at least part of the time in Ottawa, which belies that her intention was to spend more time with Mr. Saunders and/or Ethan during this time period.

[28] In or about October of 2008, Ms. Willis received approximately $70,000 from the Canadian Armed Forces which was deposited directly into an RRSP. She understood that payment to be a reimbursement of her contributions to her pension while in the military. Mr. Saunders questioned whether it was reimbursement for another type of payment, and in cross-examination Ms. Willis stated that she “had no idea what the money she got was for.”

[29] At the time of Ms. Willis’ discharge from her Regular Force service, she was approved to transfer to the Reserve Force in the militia. She continued to be a member of the 26 SVC BN North Bay reserve unit until the move to Ottawa. As a Reserve member, Ms. Willis was entitled to some remuneration and certain benefits. In cross-examination, Ms. Willis agreed that she did not make any inquiries about the ability to continue with the Reserves in Ottawa, and she did not ask for a transfer from the North Bay Reserve unit she was with to one in Ottawa. From the letter of Rema Hage referred to in paragraph 7 above, it appears that Ms. Willis was released outright from the Canadian Armed Forces March 7, 2011.

[30] For his part, Mr. Saunders, in addition to doing the above mentioned courses during the relationship, also did a third posting to Afghanistan in 2010. It was during this posting that Mr. Saunders made the decision that he wanted to move to Ottawa to be closer to Ethan and to try and gain more access to him as a result. According to Mr. Saunders, he thought this decision would also benefit Ms. Willis as she was at that point attending Carleton and spending part of her time in Ottawa. He told Ms. Willis of his decision and asked if she was interested in also moving, which she was. Mr. Saunders requested a transfer to Ottawa, and began working here in or about April of 2011. The parties sold their home in Petawawa and Ms. Willis moved to Ottawa in June of 2011, when they purchased a home in their joint names at 68 Aintree Place.

[31] According to Mr. Saunders, this move was a career limiting rather than a career enhancing one. The reasons for this were that he sought a nine to five, Monday to Friday, desk job with no further posting requirements, which limited his opportunities for promotions in rank. Mr. Saunders understood the impact this decision would have on his career and future opportunities, however, he was very motivated to move closer to and try and get more time with Ethan. He has, in fact, remained a Sergeant since his 2009 promotion, though he has attained the highest level of pay within that rank. Mr. Saunders testified that there are four incremental pay increases under the rank of Sergeant, and that entitlement to them is annual and automatic. Essentially, if you pass four years as a Sergeant, you receive four incremental increases in pay.

[32] Notwithstanding his efforts to legally gain more access to Ethan, Mr. Saunders was unsuccessful, still largely due to the distance between Arnprior and Ottawa, and his access remained as per the original order of every second weekend and certain holiday time. Again, access was only exercised with Ethan when Mr. Saunders was available to do it. Ms. Willis did not take on a primary caregiving role with Ethan at any point in the parties’ relationship, nor did she attend any of Ethan’s extracurricular activities, though she again attributed this to the volatility of Ethan’s mother and the fact that she did not want to cause problems for Ethan or Mr. Saunders by being in her presence.

[33] Ms. Willis was able to obtain a fulltime position as a CPIC operator in Ottawa through connections she had in Petawawa prior to her move in June, however, she resigned from that position on July 11, 2011 because it consisted of shift work, in which she determined she was not interested. Her letter of resignation (Trial Exhibit #8) stated: “To be honest, it is the shift work. I have been there and done that and am not interested. I want a somewhat normal life especially now that my spouse is back from 3 tours to Afghanistan and am looking forward to spending as much time with him, and my step-son as possible.” There was again no indication in the evidence that this was a joint decision, or one that was made to allow Mr. Saunders to focus more exclusively on his career.

[34] Ms. Willis provided a list of jobs she applied for/had over the years which was made Trial Exhibit #9. Ms. Willis held sporadic jobs after July 2011, including one as a relief worker at the Phoenix Centre in Petawawa that she kept from 2008 until the program lost its funding in 2014. She otherwise worked as a group home worker in Limoges for a short time and with Terrace Youth for about a year. At the time of separation she was working at Redwoods Retirement Facility which she had been doing since about May of 2014 and which she continued to do for about another year. When employed, none of the jobs Ms. Willis held were high paying or particularly long lasting. During these periods, when Ms. Willis was either unemployed or underemployed, the couple relied primarily on Mr. Saunders’ income, and Ms. Willis conceded in cross-examination that at times, and particularly near the end of the relationship, they lived from paycheck to paycheck.

Analysis

(a) Enrichment

[35] According to Cromwell, J. in Kerr v. Baranow, 2011 SCC 10, 2011 CarswellBC 240, at paragraph 3: “In order to successfully prove a claim for unjust enrichment, the claimant must show that the defendant has been enriched, the claimant suffered a corresponding detriment, and there is no “juristic reason” for the enrichment.” With respect to enrichment, at paragraph 38, Cromwell, J. goes on to state:

For the first requirement - enrichment – the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

[36] While I am certain that Ms. Willis did what she thought was best for her family, or for herself in the context of her family circumstances, I am unable to find that her monetary and/or non-monetary contributions to the relationship resulted in tangible benefits to Mr. Saunders. While Ms. Willis may have been primarily responsible for the couples’ mortgage in 2007/08, Mr. Saunders was primarily responsible for the couples’ expenses in the latter years of the relationship. Moreover, unlike in Cloutier v. Francis, 2011 ONSC 5550, 2011 CarswellOnt 15427, upon which Ms. Willis relies, Mr. Saunders did not gain any advantage in terms of his career trajectory as a result of Ms. Willis’ contributions. Ms. Willis did not take on a caregiving role of Ethan which then permitted Mr. Saunders to concentrate on his career; they did not have any children together for whom Ms. Willis became a primary caregiver; Ms. Willis did not contribute financially to the family expenses such that Mr. Saunders was able to contribute more than he otherwise would have to his military pension; Ms. Willis’ role in terms of the parties’ domestic responsibilities was not such that it freed Mr. Saunders to advance in a manner that he would not have otherwise done.

[37] On the whole of the evidence, Ms. Willis has not met the first branch of the test for unjust enrichment.

(b) Corresponding detriment

[38] The second branch of the Kerr v. Baranow test is that the plaintiff suffered a corresponding deprivation to the enrichment of the defendant. Cromwell, J. stated it thus at paragraph 39:

Turning to the second element – a corresponding deprivation – the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp.789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Tathwell, at p.455).

[39] Having found that there was no enrichment, I cannot find that there was a corresponding deprivation. Ms. Willis has suffered a deprivation by the decisions she has made, most notably in relation to her own career, but Mr. Saunders has not gained a benefit from same.

(c) Lack of juristic reason

[40] Having found neither an unjust enrichment on the part of Mr. Saunders nor a corresponding deprivation on the part of Ms. Willis, I am not required to delve into the presence or absence of juristic reason.

[41] In conclusion, unjust enrichment is a claim in equity which results when one individual/entity has been enriched unjustly at the expense of another. It is not intended to be a property sharing regime between unmarried spouses. Ms. Willis has submitted that she was engaged in a joint family venture with Mr. Saunders, and therefore some percentage of his accumulation of wealth or assets belongs to her. Ms. Willis, however, still has to provide an evidentiary basis to demonstrate that there is a link between her contributions to that joint family venture (if indeed there was one) and Mr. Saunders’ accumulation of assets; in other words, that he has benefitted unjustly and she has been correspondingly deprived as a result of her contribution to the joint family venture. She has not done so, and her claim for a monetary remedy must fail.

Issue #2 – Entitlement to Spousal Support

[42] As is indicated above, when the parties met, they were both employed in the Canadian Forces. Ms. Willis voluntarily left the regular forces in July of 2008 and the reserves in or about March of 2011. Ms. Willis went to Carleton University and completed a degree in Criminology in or about 2012. She thereafter struggled with finding and maintaining well paying, fulltime employment. Ms. Willis maintains that she is entitled to spousal support on the basis of both compensation and need.

[43] In her application filed in April of 2016, Ms. Willis sought retroactive support from the date of separation (October 2014) in a lump sum award as well as on-going support for a total of 7 years. Ms. Willis presented the court with a DivorceMate calculation of spousal support using Mr. Saunders 2015 income of $67,660 and an imputed income to her of $22,000 which resulted in a SSAG of $400 at the low range, $466 at the mid-range and $533 at the high range of support for a period of 3.5 to 7 years.

[44] Mr. Saunders takes the position that Ms. Willis is not entitled to spousal support on either a compensatory or needs basis. He asserts that because of her position and her specialist pay, Ms. Willis actually had a higher income than he did in the early years of the relationship (which he approximates to be between $64,000 and $68,000), including up until he received his promotion to Sergeant. He asserts, additionally, that currently Ms. Willis is under-employed, particularly given her level of education and experience, and that she has had three years since the date of separation to become self-sustaining. He states in the alternative that if Ms. Willis is indeed entitled to spousal support, income should be imputed to her which is commiserate with her qualifications and experience, and/or which is consistent with fulltime employment.

[45] At the time of trial, Ms. Willis was working two shifts per week at the Duke of Devonshire Retirement Home, as well as at a restaurant part-time. Ms. Willis indicated that she tries to pick up extra shifts at the home when she can. She indicated her income was about $18,000 in 2016.

[46] In May of 2016, Mr. Saunders swore a Financial Statement in which he indicated his income for the previous year was $67,660.40. At the commencement of trial, Mr. Saunders sought to file an updated financial statement sworn on September 13, 2017 in which he indicated his income for 2016 was $72,790. Mr. Saunders indicated that he remains a Sergeant and would have to do two more courses before even becoming eligible for further promotion. He currently works as an Infantry Sergeant at CFB Kingston where he was posted in June of 2016 to instruct pre-deployment courses.

[47] At the time of the separation, Ms. Willis and Mr. Saunders owned a home together at 68 Aintree Place in Kanata, Ontario. The parties sold the home and the proceeds were divided equally between them, but for $1117.67 which Ms. Willis agreed she owed Mr. Saunders for such things as her share of the listing, a Home Depot card, and some missed payments on a joint loan. Mr. Saunders testified that Ms. Willis would have received approximately $15,000 as a result of the sale.

[48] The parties had a comfortable lifestyle in their single family home which easily accommodated them and Ethan when he came to visit. At separation, Ms. Willis was required to seek rental accommodation which she found it difficult to afford. She currently lives in a one bedroom apartment for which she pays $943 per month. Ms. Willis indicated that she recently cancelled her parking space at the apartment because she could not continue to afford it.

[49] Mr. Saunders indicated that he stayed in the joint home and continued to pay the mortgage and bills on the home until it sold in February of 2008, after which he purchased a home in Almonte with his then new partner, now wife, with whom he has since had another son. Mr. Saunders indicated that his circumstances were very difficult upon his posting to Kingston because he had both rental payments in Kingston and mortgage payments on his house in Almonte, which did not sell until March of 2017. Mr. Saunders testified that he has approximately $15,000 remaining on a line of credit from the period between the parties’ separation and the sale of the Aintree house, and another $30,000 line of credit resulting from the period while he was living in Kingston prior to the sale of his Almonte house.

[50] Mr. Saunders testified that he is responsible for support payments for Ethan, and for the expenses associated with his new family. In his most recent Financial Statement these include support payments of $618.42 per month and $769.50 per month in daycare expenses.

[51] Ms. Willis testified that she currently has a VISA card bill of approximately $13,000 and a line of credit balance of close to $18,000. According to her evidence, Ms. Willis’ debts are a result of her being unable to afford her day to day expenses, and include such things as veterinary bills for her dog, first and last month’s rent and legal fees.

[52] Ms. Willis testified that she has applied for many jobs since her move to Ottawa in 2011, and she provided a list (Trial Exhibit #14) in which 15 are listed since March of 2014.

Analysis

[53] Ms. Willis relies upon s. 33(8) of the Family Law Act to submit that an order for spousal support should recognize her contribution to the relationship and the economic consequences of the relationship to her, make fair provision to her to enable her to support herself, and relieve financial hardship to her.

[54] The court is to consider the factors laid out in s. 33(9) of the Act in determining the amount and duration of any order of support. Those factors include the current assets and means of the parties and those they are likely to have in the future; Ms. Willis’ capacity to contribute to her own support; the parties’ age and physical and mental health; Ms. Willis’ needs with reference to the parties’ accustomed standard of living while they were together; the measures Ms. Willis has available to become able to provide for her own support and the length of time and cost involved to enable her to take them; any legal obligation Mr. Saunders has to provide support to Ethan; a contribution by Ms. Willis to the realization of Mr. Saunders’ career potential; the length of time Ms. Willis and Mr. Saunders cohabitated; the effect on Ms. Willis’s earning capacity of the responsibilities assumed during cohabitation; and, any housekeeping, child care or other domestic service performed by Ms. Willis as if she was devoting the time spent in performing that service in remunerative employment and was contributing the earnings to the family’s support.

[55] With respect to the above factors, I find as follows:

• Ms. Willis’ current assets are limited. Mr. Saunders are only slightly less so, though his future prospects are better than those of Ms. Willis in that he does have a military pension which continues to grow.

• Mr. Saunders has the means to support Ms. Willis in that he has an income of $72,790 juxtaposed to her income of only approximately $18,000.

• Ms. Willis clearly has the capacity to contribute to her own support; that she has struggled so to do so to date is somewhat puzzling.

• Mr. Saunders is 36 years of age; Ms. Willis is 39. Both are in good physical and mental health.

• Ms. Willis’ standard of living has significantly diminished since separation; where she formerly lived very comfortably in a single family home in Kanata, she can now barely afford her modest one bedroom apartment. She does not vacation, as she and Mr. Saunders regularly did as a couple, sometimes paid for by the military.

• The measures Ms. Willis is taking, or the time in which it would be necessary to take them, to provide for her own support, are unclear to me; although Ms. Willis provided a list of job applications which appear to be commiserate with her experience (in the social services or policing/compliance type fields), 15 job applications in three and a half years is not an overwhelming number. I received no evidence, moreover, of any effort on Ms. Willis’ part to retrain, perhaps for a different type of career which would afford her more opportunity.

• Mr. Saunders has a legal obligation to support Ethan. According to his most recent Financial Statement, Mr. Saunders currently pays $618.42 per month in support of Ethan. He also has obligations to his second child and new wife, though the latter is also in the military making approximately $42,000 per year.

• Ms. Willis has not made specific contributions to the realization of Mr. Saunders career potential. He would have gone on his postings and training courses, and he would have attained the rank of Sergeant, with or without Ms. Willis.

• Ms. Willis and Mr. Saunders cohabitated for either seven years, five months (May 2007 to October 2014) or seven years, two months (August 2007 to October 2014) depending on whose evidence is accepted. For the purposes of spousal support, it was an at least seven year relationship.

• There was no effect on Ms. Willis’s earning capacity which resulted from the responsibilities she assumed during cohabitation; nevertheless the choices she made, in her mind because of the relationship, limited her earning capacity.

• Finally, there was no housekeeping, child care or other domestic service performed by Ms. Willis that prevented her from having remunerative employment such that the time spent at them could be treated as contributions to the earnings to the family’s support. Again, Ms. Willis made choices regarding her own employment over the course of the relationship, most notably when she left the regular services and later when she resigned from her job at CPIC because she did not like the hours.

[56] In Cloutier v. Francis, supra, Justice Linhares de Sousa found at paragraph 254 that: “Financial and economic need is one purpose of spousal support.” Further, at paragraph 257, De Sousa, J. stated: “As the Family Law Act directs and as the case law has established entitlement to spousal support may arise out of financial and economic disadvantages experienced in the relationship.”

[57] Ms. Willis experienced financial and economic disadvantages in her relationship with Mr. Saunders, some of which were of her own making. Her standard of living was significantly reduced as a result of the relationship ending. At the time of separation, she was dependent on Mr. Saunders, and since that time she has been in obvious need. I find that Ms. Willis is entitled to spousal support on the basis of need.

[58] Mr. Saunders has requested on order imputing income to Ms. Willis on the basis that she is under-employed in the event that entitlement to spousal support is found. Justice Shelston set out the legal framework for the imputation of income in Verhey v. Verhey, 2017 ONSC 2216. Relying on Drygala v. Pauli 2002, 61 O.R. (3d) 771 (C.A.), Shelston J. found in paragraph 31 that there is a three part test for intentional under-employment or unemployment as follows;

• Is the spouse intentionally under-employed?

• If so, is the intentional under-employment required by virtue of reasonable education needs?

• If not, what income should appropriately be imputed to the spouse?

[59] Ms. Willis has made only 15 job applications in over three years. She continues to work part-time, albeit at two different jobs. She provided no evidence of any plans she may have for future training or employment enhancement.

[60] The onus is on Mr. Saunders to establish that Ms. Willis is intentionally under-employed and I accept that he has met that onus. Ms. Willis is a relatively young, capable and well educated individual. She is undoubtedly earning less than she is capable of earning. I find that she is intentionally under-employed, and it is not related to any educational need. Ms. Willis has simply been unable to get on her feet or establish a career for herself since her departure from the military. However, she will have to find a way to do so in the future.

[61] When determining what level of income to impute, the court has a large range of discretion but the imputation must be founded on a rational basis which takes into consideration the age, education, skills and health of the spouse, as well as the number of hours that can be worked and the hourly rate the spouse can reasonably obtain. (Verhey v. Verhey, paragraphs 40 and 41)

[62] According to the paystub attached to Ms. Willis’ most recent Financial Statement at Tab 6 of the Trial Record, she currently makes $12.62 per hour at the Duke of Devonshire. A 40 hour work week would result in an annual income to Ms. Willis of $26,249, which amount I am prepared to impute to her for spousal support purposes effective January 1, 2016.

[63] Given the debt Mr. Saunders took with him from the relationship of $15,000 and his current obligations, I would award spousal support at the low range only. Given that Ms. Willis was employed fulltime, including in the Reserves, until sometime in or about 2010, I would limit spousal support to four years.

[64] Ms. Willis is seeking a lump sum payment, and I agree that it is appropriate in the circumstances of this case. The parties had no children together and their relationship has been over for three years. A lump sum payment would afford them a clean break.

[65] I thus make the following findings for the purposes of calculating support:

1. Spousal support shall be payable by Mr. Saunders to Ms. Willis at the low end of the SSAG calculation from November 1, 2014 until October 31, 2018;

2. Mr. Saunders income for support purposes for November and December of 2014 was his CRA line 150 income of $67,660; Ms. Willis’ 150 line income for 2014 was $14,675. Based on a DivorceMate calculation using these sums, the net, after tax amount of support payable is $352 per month, for a total of $704 in 2014;

3. Mr. Saunders CRA line 150 income for 2015 was $73,660; Ms. Willis’ did not provide a Notice of Assessment for 2015, however, adding one half of the difference between her 2014 and 2016 incomes ($14,675 and $18,166 respectively) results in the sum of $16,420, which will be used for her 2015 income. Based on a DivorceMate calculation using these sums, the net, after tax amount of support payable is $374 per month for a total of $4,488 in 2015;

4. Mr. Saunders income for support purposes for January 1, 2016 through October 31, 2018, is $72,790; Ms. Willis’ imputed income for the same period is $26,249. Based on a DivorceMate calculation using these sums, the net, after tax amount of support payable is $326 per month for a total of $11, 084 for this period.

Order

[66] My order shall be as follows:

(1) The Applicant’s claim for a monetary remedy based on the equitable doctrine of unjust enrichment is dismissed;

(2) The Respondent shall pay to the Applicant a lump sum award of spousal support of $16,276 for the period of November 1, 2014 to October 31, 2018.

Costs

[67] Given the divided success on this matter, I am not inclined to make a costs order. However, should the parties nevertheless wish to make submissions on costs they may do so within 30 days of the release of this decision.

[68] This order bears post-judgment interest at the rate of ___ per cent per year effective from the date of this order.

Madam Justice Tracy Engelking

Released: October 13, 2017

CITATION: Willis v. Saunders, 2017 ONSC 6110

COURT FILE NO.: FC-16-749

DATE: 2017/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tara Willis

Applicant

– and –

Matthew Saunders

Respondent

REASONS FOR JUDGMENT

ENGELKING J.

Released: October 13, 2017