COURT FILE NO.: FS-15-00020371-0000

DATE: 20171129

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DORIS BISBAL-PALACIOS

Applicant

• and -

GUSTAVO ADALBERTO QUIEL SANTAMARIA

Respondent

For herself

Elena Mazinani, for the Respondent

HEARD: October 30, 31, November 1, 2, 3, 6 and 7, 2017

REASONS FOR JUDGMENT

MESBUR J.

Introduction:

[1] The parties lived together for either fifteen or twenty years, and are the parents of four children. The children, Luis, Gustavo, Doris and Allison are now 28, 25, 20 and 19 respectively. The parties lived together from either late 1988 or early 1989 until either 2004 or 2009. From 1997 until 2009, the entire family lived in a home at 35 Hallow Crescent, Etobicoke, Ontario. The home was registered in the respondent, Mr. Quiel’s name alone. After June of 2009, the applicant (Ms. Bisbal) and the children lived in the house until it was ultimately sold in the spring of this year. The net proceeds of sale, apart from $35,000 paid out to each of the parties, has been held in trust pending the outcome of this trial.

[2] In this action, Ms. Bisbal seeks an interest in the home, or a share of the sale proceeds. She relies on the doctrines of constructive trust and unjust enrichment to support her claim to the property. She asserts she has expended significant sums of money to improve and maintain the home, and Mr. Quiel would be unjustly enriched at her expense were he to retain all the sale proceeds.

[3] Ms. Bisbal also asks for orders for both spousal and child support. Ms. Bisbal says Mr. Quiel has failed to support either the children or her, notwithstanding his obligations to do so. She takes the position child support should have been paid since the parties separated. Although not specifically pleaded, she seeks a retroactive order in that regard. As for spousal support, Ms. Bisbal asserts a right to spousal support based on both a compensatory and needs-based analysis. She says she has a need for spousal support, and Mr. Quiel has the ability to pay it.

[4] Mr. Quiel takes the position the house is his property alone, and Ms. Bisbal has no entitlement to any portion of the proceeds from its sale. He denies Ms. Bisbal is entitled to any spousal support, on any model of support, whether compensatory, non-compensatory or needs-based. He says he effectively supported each child until his or her 18th birthday by paying the mortgage and carrying costs on the family home where Ms. Bisbal and the children continued to reside after he was removed from the home in June of 2009. Mr. Quiel was removed after being charged with assault and related offences in relation to the parties’ son Gustavo. Mr. Quiel says none of the children is entitled to any further child support after turning 18 because their mother has failed to provide evidence of their continuing to attend school on a full time basis. He takes the position all of Ms. Bisbal’s claims should be dismissed, and he should be entitled to all the remaining proceeds of sale together with occupation rent for the period Ms. Bisbal and the children occupied the home and he was excluded from it.

Factual findings:

The parties’ relationship

[5] When the parties met sometime in late 1988, Mr. Quiel was 21 and Ms. Bisbal was 28. At that time, Ms. Bisbal was already pregnant with her son Luis. The parties developed a relationship, and began to live together either shortly before or shortly after Luis’ birth in January of 1989. Mr. Quiel attended Luis’ birth, and has acted as his father at all times since then, even though he is not Luis’ biological father. The exact date the parties began to live together is not material to my conclusions. For the sake of expediency, I put it at January 1, 1989.

[6] Ms. Bisbal became pregnant by Mr. Quiel in 1991. Their son Gustavo was born on June 29, 1992. Gustavo’s birth was followed by another pregnancy, which was terminated. The parties have differing views on who or what precipitated the termination. Determining that issue is irrelevant to the matters I need to decide.

[7] In 1996, Ms. Bisbal became pregnant again. On February 4, 1997 the parties’ daughter Doris was born. Just over a year later, on April 2, 1998, another daughter, Allison, joined the family.

[8] The parties’ relationship was not without conflict. In fact, conflict and disagreement have been its hallmark. Again, fault-finding is irrelevant to my task.

[9] At the beginning of the parties’ relationship, Ms. Bisbal was receiving social assistance. She had a newborn, and was not working outside the home for wages. Nevertheless, she struggled to make a financial contribution to the family. Mr. Quiel was working, and has worked throughout the parties’ relationship and since their separation. Indeed, during the parties’ cohabitation, Mr. Quiel was able to upgrade his employment skills, obtaining a certificate or diploma. He works as an aircraft machinist.

[10] Early in the relationship, the parties shared an apartment with Mr. Quiel’s sister. The three adults split the rent and associated costs equally, with the sister paying one third, and the couple paying two thirds. Mr. Quiel’s contribution came from his employment income, while Ms. Bisbal relied on her social assistance benefits and child tax benefit. After the couple had a falling out with the sister, they moved to another apartment. Ms. Bisbal covered the rent, while Mr. Quiel initially paid for other things, ultimately contributing to the rent as well.

[11] Sometime in 1992 Ms. Bisbal apparently “took Mr. Quiel to court”. I have no record of any of the court documents, so have essentially no evidence of what was sought, or what order might have been made. Some mention was made of Ms. Bisbal’s receiving social assistance and as a result perhaps being required to seek support from Mr. Quiel. Nevertheless, the parties continued to live together, and had two more children after 1992.

Buying the house

[12] Apparently Ms. Bisbal again “took Mr. Quiel to court” in 1996 or thereabouts. Mr. Quiel was ordered to pay $475 per month in child support. I do not know if that was for two children or three children. (Doris was born in early 1997). In any case, Mr. Quiel paid no child support. Instead, in 1997 he purchased the home at 35 Hallow Crescent in Etobicoke for $173,500. The parties appear to have had some kind of agreement or understanding that Mr. Quiel would provide and maintain the house instead of paying child support. Ms. Bisbal says Mr. Quiel told her he was having a good income and he could pay for everything. The family moved into the house. Ms. Bisbal said the arrangement was for her to take care of the house and children, and Mr. Quiel would pay for everything. Mr. Quiel said he was only to pay for housing, and Ms. Bisbal was to cover everything else. She, however, was not working outside the home for wages. By 2000 Mr. Quiel’s Notice of Assessment showed he was earning $64,996. He clearly could have afforded to pay for the house and the family’s other costs. He did not. He simply continued to pay all the carrying costs of the home, occasionally contributing to the other expenses of the home. Mr. Quiel was clearly resistant to paying anything else. The parties’ daughter Allison testified that she would rarely ask her father for money for anything other than small things because he would become angry. Allison said Ms. Bisbal would get food at food banks, and recycle clothing in order to keep the children fed and clothed.

[13] As I have said, the home was registered in Mr. Quiel’s name alone. It was subject to a mortgage of $168,420 at the time of purchase. Mr. Quiel said he provided the down payment of $5,000 plus an additional $5,000 toward closing costs and expenses. Ms. Bisbal suggests she had money from her family and contributed about $5,000 from her resources. She says Mr. Quiel only put $5,000 toward the purchase.

[14] I have no evidence of any funds coming from Ms. Bisbal at the time of purchase, and conclude the initial cash contribution came from Mr. Quiel. Mr. Quiel testified that Ms. Bisbal had no interest in having her name on title to the property. He suggested being on title might adversely affect her receipt of social assistance. Ms. Bisbal did not agree with this characterization. The reality is that the property was always registered in Mr. Quiel’s name.

[15] After the property was purchased and the family moved in, Mr. Quiel paid the carrying costs for the house. This continued until Mr. Quiel was removed from the house in June of 2009. Although I cannot tell whether the mortgage was being paid on a weekly basis from the time of purchase, by at least June of 2009 it was being paid weekly. The weekly payments were $252.29, resulting in a monthly cost of just under $1,100.

[16] From the time the house was purchased, it was Mr. Quiel who was responsible for paying the mortgage, taxes and utilities. He generally paid for little else. Mr. Quiel says this was the “deal”, and shows that the parties were financially independent from one another. The parties’ daughter Allison testified that it was her mother who bought food and clothes for her and her siblings. What is clear is that it was a struggle for Ms. Bisbal to do so. She often had to rely on food banks for food. Ms. Bisbal was often on social assistance, with her only other source of revenue being the Child Tax Benefit. Mr. Quiel seemed to think this was sufficient, and suggests I should conclude Ms. Bisbal was always completely self-supporting.

[17] I do not see it that way. There is no way Ms. Bisbal was in a position to support herself and the children. She had no ability to provide housing for them. She was completely dependent on Mr. Quiel for that. Mr. Quiel was certainly in a position to provide more for his family financially than Ms. Bisbal was. He did not, and as a result was able to acquire other assets of his own (bank accounts and RRSPs, for example) at the financial expense of his family.

[18] While Ms. Bisbal struggled financially, juggling a few part time jobs here and there, Mr. Quiel was able to retrain, continue in his secure job, and increase his income over the years. Ms. Bisbal generally took care of the house and the children. Ms. Bisbal’s roles in the relationship allowed Mr. Quiel to get ahead in his job, and increase his earning capacity. Ms. Bisbal had no such opportunities, with four children to raise. Even after Mr. Quiel moved out, Ms. Bisbal was left with four children ranging in age from eleven to twenty. They were all at home, all dependent on her to varying degrees.

[19] This is not to say Mr. Quiel was uninvolved with the family. He played with the children, particularly baseball with the boys. Mr. Quiel always treated Luis as his own child, even though he was not the biological father. Mr. Quiel prepared meals from time to time. As I see it, his and Ms. Bisbal’s relationship was an interdependent family relationship.

The separation

[20] After the family moved into the home, the last child Allison was born. In 2004 Ms. Bisbal moved out of the bedroom she and Mr. Quiel shared. Mr. Quiel therefore takes the position their date of separation was 2004, when this occurred. Ms. Bisbal, however, says nothing really changed in the household except the sleeping arrangements. She says she and Mr. Quiel continued to have sexual relations, particularly when he forced her to do so. She says they did not separate until June of 2009 when Mr. Quiel was charged with six counts of assault and related offences and the police removed him from the home.

[21] As far as I can tell, apart from Ms. Bisbal sleeping in the living room after 2004, nothing in the parties’ relationship changed. Mr. Quiel continued to pay the mortgage and carrying costs of the home. He continued to have a relationship with his children. The family continued to live together as a family. There is no evidence of any of the usual hallmarks of separation “under the same roof”, such as Mr. Quiel’s laundry being separated from that of other family members, or his purchasing and preparing his own meals separate from the other family members. In August of 2004 Ms. Bisbal purchased a trailer as a vacation property. The whole family, including Mr. Quiel, visited the trailer long after 2004 and Ms. Bisbal says that when they were at the trailer, she and Mr. Quiel shared a bed. I believe her. Her evidence was corroborated in part by her friend Delsidia Arauz who confirmed observing the family at the trailer, operating like a family. Delsidia has known and been a friend of Mr. Quiel’s since they were children in Panama. She has known and has been of friend of Ms. Bisbal since 1989 or so. She knows the children. Delsidia also had a trailer in the same location. She was in a position to observe the family after 2004. I believe her evidence and accept it. I conclude, therefore, the parties did not separate in 2004 as Mr. Quiel asserts.

Events after 2004

[22] In 2005 Ms. Bisbal was involved in a serious motor vehicle accident. It took some years before the case ultimately settled and she received insurance proceeds. In the meantime, she required some attendant care services to assist her with her tasks of daily living. Her friend Delsidia, who is a personal support worker, provided much of this attendant care. She testified that after the accident Ms. Bisbal was on high doses of pain killers that made her seem like she was drunk. She needed help with bathing, cooking and other tasks of daily living. Clearly, Ms. Bisbal was not able to work outside the home for wages. Ultimately she applied for and was awarded a disability pension through ODSP. Mr. Quiel, however, was able to continue to work for the same company. By 2006 his pay stub for November 9 showed his year-to-date earnings as of that date at $61,604. Assuming he continued to work until the end of the year at the same rate, he would have had annual earnings in 2006 of close to $70,000. Nevertheless, Mr. Quiel contributed nothing further to the family other than the carrying costs of the home.

[23] Ms. Bisbal’s injuries were not the only health challenge the family faced. Mr. Quiel had developed diabetes, which was initially very poorly controlled. Mr. Quiel testified he lost a tremendous amount of weight. Ms. Bisbal described his behavior as somewhat erratic and challenging. Although the home was clearly not a happy one, the parties soldiered along.

[24] As I have said, nothing much changed except the sleeping arrangements in the house. Ms. Bisbal said, and I believe her, that Mr. Quiel insisted on continuing their sexual relationship after she left the bedroom. It was not until the criminal charges and Mr. Quiel’s removal from the home that the actual separation occurred. In June of 2009 Mr. Quiel was removed from the home as a result of criminal charges laid against him. He was charged with six counts of assault and assault-related charges in relation to the parties’ son, Gustavo. Mr. Quiel ultimately entered a guilty plea in relation to two of the charges, and was sentenced to a year of probation.

[25] Mr. Quiel suggested that the charges were trumped up and a fabrication. He denies a conviction, and says he could not have been convicted of a criminal offence, because he would have lost his job. The documents are clear, however. He was guilty, and sentenced. His job continued for some years afterwards, notwithstanding the criminal conviction.

[26] I conclude the parties actually separated in June of 2009, after cohabiting for about 20 years with their children.

Post-separation events and arrangements

[27] In April of 2010, Ms. Bisbal consulted a lawyer. The lawyer wrote to Mr. Quiel on April 7, 2010 c/o the address of his surety. The letter says, among other things:

It is our understanding that, as a result of criminal charges laid against you on or about June 29, 2009, you have been living separately and apart from Ms. Bisbal, and the children. Given the nature of the separation, it is apparent that steps will need to be taken in order to legally resolve the matters left outstanding from the separation. In this regard the issues of custody of the children, child support for the children, spousal support for our client, as well as financial assistance with respect to family debts, will need to be addressed. We understand that you are continuing to pay the household expenses with respect to utilities and the mortgage, and we would suggest that those contributions continue in order to avoid a claim for retroactive contribution to those expenses.

[28] Mr. Quiel confirmed he was living at the surety’s address at the time, but denies receiving the letter. He testified he first saw the letter when his current lawyer showed it to him sometime in around 2015. This makes no sense. I cannot see how Mr. Quiel’s lawyer would have had the letter unless Mr. Quiel gave it to her. I conclude Mr. Quiel received the letter, but did not respond to it. He is hardly unique in that regard.

[29] Ms. Bisbal’s lawyer, however, did nothing to follow up with his demands on Ms. Bisbal’s behalf for custody, child support and spousal support. He did not, as threatened, start legal proceedings if he had not heard from Mr. Quiel within 30 days. The lawyer had said, of course, that Mr. Quiel’s continuing to pay the carrying costs on the family home would avoid a retroactive claim. Mr. Quiel continued to carry the house, and nothing else happened until Ms. Bisbal finally commenced this application in August of 2015. A different lawyer represented Ms. Bisbal when she began this case.

[30] The application, as originally drafted, contained claims for constructive trust/unjust enrichment in relation to the home, and spousal support. It did not ask for child support, either retrospectively or prospectively, and did not specifically seek retroactive spousal support. That being said, the issues of child support and spousal support, and when they should have commenced, have clearly been live issues since the first lawyer’s letter in 2010.

The state of the house

[31] Ms. Bisbal says that when Mr. Quiel was removed from the house, it was in a deplorable state of repair, and was virtually uninhabitable. Mr. Quiel denies this, but concedes there were significant plumbing problems (the sink and tub in the only bathroom did not drain, nor did the kitchen sink), and problems with some of the windows. He said he had tried to repair the plumbing problems, but had neither the skill nor resources to do so. I find this somewhat surprising, since in 2009 Mr. Quiel was earning well over $60,000 and was carrying a mortgage of only about $121,000 with costs of just over $1,000 per month. According to his financial disclosure he also had at least $12,000 in savings and investments at the time.

[32] I accept that when Mr. Quiel left the home in 2009, the house was in a state of significant disrepair. Both Ms. Bisbal and Allison testified about the state of the house at that time. Ms. Bisbal’s friend Delsidia confirmed it. I believe their evidence. The house was infested with mice and cockroaches. The kitchen sink and the bathroom toilet and shower did not drain, although Mr. Quiel had tried, unsuccessfully, to fix them. The home had a significant mould problem. There were no baseboards or casings around the doors and windows. Some of the windows needed to be replaced. The furnace was broken, and Ms. Bisbal and the children relied on space heaters for heat.

[33] Although Mr. Quiel denies that when he left in 2009 the furnace was broken, and denied problems with mould, mice and cockroaches, he did agree there were significant plumbing problems, and problems with the windows. I found Ms. Bisbal’s, Allison’s and Delsidia’s evidence compelling and credible. Ms. Bisbal produced a binder of photographs showing the condition of the property around the time Mr. Quiel left, the condition at and after a flood in 2013, and the condition after she completed significant repairs. I believe Ms. Bisbal’s evidence that she took the photographs. I believe Ms. Bisbal’s evidence as to when the photographs were taken. I believe her and Allison when they described the photos as accurately showing the condition of the house at the time Mr. Quiel left. It was barely habitable.

[34] The furnace was broken, the plumbing did not work, the house was infested with mice and cockroaches, and mould was a significant and growing problem. Delsidia also confirmed in her testimony that she observed the house had mould issues and had no heat. Delsidia was often in the home as Ms. Bisbal’s personal support worker after Ms. Bisbal’s accident. Ms. Bisbal suffered her injuries in the accident in 2005, four years before the separation.

[35] Ms. Bisbal says she did her best to try to address some of these issues, but she really had no money to do so. Although Mr. Quiel was carrying the house costs, she had no money coming in, apart from small sums she was able to earn through selling Avon products and the like. She lived in large part on credit and the child tax benefit. She often went to food banks to feed the family. Allison testified that although her mother tried to address some of the issues in the house she really was not able to afford to do so.

[36] It was only when Ms. Bisbal received her settlement from the accident that she had any significant funds. She received $130,000 from the insurer in December of 2011.

[37] First, Ms. Bisbal paid off her debts. Her banking records show her receiving the settlement funds in late December of 2011. Ms. Bisbal pointed to the deposit that she said represented the settlement. I believe her evidence. In January of 2012, Ms. Bisbal says, (and her banking records confirm) payments totalling $66,882 on account of credit cards. This sum includes over $24,000 to Visa, nearly $16,000 on a credit line, just over $15,000 to Capital One, over $2,000 to Sears MasterCard, $4,200 to Sears and $5,500 to HBC. Again, I believe Ms. Bisbal’s evidence in this regard.

[38] After paying her debts and her attendant care givers, Ms. Bisbal was left with about $36,000 from her settlement. She was finally in a position to try to address some of the longstanding problems in the house. She began to try to fix the many problems, but was not able to do much, since she also had to support the day to day needs of herself and her four children.

Refinancing the mortgage on the house

[39] Meanwhile, sometime after Mr. Quiel was removed from the house at the end of June of 2009, he decided to refinance the mortgage on the house. At that time, the mortgage had been paid down to about $121,000. In late March of 2010, Mr. Quiel increased the mortgage to about $318,000, taking the additional $196,000 in mortgage financing for himself. He did not consult Ms. Bisbal before doing so. He did not obtain (nor was he required to obtain) her consent, since the parties never married. The increased mortgage debt resulted in increased carrying costs.

[40] Some of the additional mortgage money was used to cover closing fees, and an early discharge penalty. The balance of about $146,000, however, was entirely for Mr. Quiel. He used none of the money to repair the house. He used none of the money to support his family. He says he needed the money to buy a business. That purchase, however, did not occur until August of 2013, some three years after the refinancing. According to Mr. Quiel’s tax returns, his income in 2009 was about $60,000. By 2012 was about $67,000. I have no returns for 2010 or 2011, even though Mr. Quiel was ordered to produce them. I will therefore make certain assumptions about his income, and conclude it continued to rise over those years.

The flood

[41] The house suffered significant flooding in the summer of 2013. The water in the basement was so deep it came up well past the first step of the basement stairs. The water was dirty and smelly. The water exacerbated the existing mould problem. An insurance claim resulted in a payment of $75,000 to cover both the repairs for the flood damage and replacement of household contents and personal effects that had been damaged by the flooding. The insurance allocated $40,000 toward remediation and $35,000 to replace household contents.

[42] Although the house was registered solely in Mr. Quiel’s name the insurance policy was in the name of both parties. The cheque was made out to both of them. The parties made an arrangement whereby about $5,000 of realty tax arrears would be paid out of the proceeds, and an additional $5,000 would be paid to Mr. Quiel. Ms. Bisbal received the balance of $65,000. Although $35,000 of the insurance money was designated to replace contents, Ms. Bisbal testified she used all the insurance funds toward the repairs and was thus not able to use the money to replace lost furnishings and personal effects. She therefore argues only $40,000 of the insurance money should be allocated to the repairs.

[43] Ms. Bisbal testified she was then able to effect necessary repairs to the house. These included not only fixing the basement, but doing other significant improvements that were not the subject of the insurance claim.

[44] At the time of the flood, the basement had not been finished. It had no insulation and only a laundry room and another, unfinished room. There was no sump pump and no waterproofing.

[45] On the balance of probabilities, having regard to Ms. Bisbal’s oral evidence, Allison’s oral evidence, Delsidia’s oral evidence and the totality of exhibits I find Ms. Bisbal effected at least the following repairs and improvements to the property:

a) Removed the water from the basement;

b) Added a sump pump and backwater valve along with an emergency generator in the basement;

c) Finished the basement by removing damp mouldy walls, adding insulation and drywall, repainting and finishing a crawl space to provide a small sitting area and significant storage;

d) Added a full washroom, kitchen and bedroom with a separate entrance to provide an income suite in the basement, where one had not existed before;

e) Replaced the washer and dryer in the laundry room (both of which were sold with the house);

f) Replaced the steps, closet doors and added baseboards and casings in the basement;

g) Redid the main floor kitchen by installing new flooring, cabinets, countertops and an exhaust fan;

h) Tore out the entire main bathroom on the second floor, remediated the moisture and mould issues and installed all new fixtures, tile, paint and flooring;

i) Remediated the house throughout to get rid of mould and vermin;

j) Installed a complete waterproofing system around the entire perimeter of the house and waterproofed the exterior walls;

k) Replaced the roof;

l) Put in a brand new furnace;

m) Rebuilt the crumbling car port; and,

n) Removed an old oil tank and repaired the floor where it had been.

[46] Ms. Bisbal claims she expended a total of $132,017.02 to effect all of this. She deducts insurance proceeds of $40,000, and says her out of pocket costs were at least $92,000. To this sum, however, Ms. Bisbal claims reimbursement for half of the debt she was left with when Mr. Quiel left, plus interest. She also claims reimbursement for the trailer, and for new appliances she bought for the house, which were sold with it. These further adjustments bring Ms. Bisbal’s total claim in relation to the house to slightly more than $182,000. Ms. Bisbal also testified that she and the children did some of the work themselves, including buying and picking up necessary materials, removing shingles, tearing down drywall and the like. Allison confirmed this. According to Allison, her mother made about 80% of the repairs to the house after the flood.

[47] Mr. Quiel takes issue with the receipts Ms. Bisbal has produced. He says many are illegible. Many he suspects are in the same handwriting. He questions the evidence. On the balance of probabilities, however, I believe both Ms. Bisbal and Allison about the extent of the work the family did. I also accept Delsidia’s evidence that Ms. Bisbal did a great deal to improve the property.

[48] The reality is that quite apart from fixing the actual flood damage, Ms. Bisbal did significant repairs and enhancements to the property that are completely unrelated to the flood damage. The insurance proceeds were allocated at $40,000 to repair, and $35,000 to replace lost contents. Mr. Quiel says a number of things. Primarily, he says Ms. Bisbal contributed nothing to the property. He suggests that the $40,000 from insurance was more than enough to complete all the work Ms. Bisbal did. Not only that, he suggests the work she did was shoddy and sub-par, and added no value at all to the house. He adduced no evidence to corroborate this position.

[49] Mr. Quiel also takes the position that Ms. Bisbal undertook repairs and renovations to the property without his knowledge and consent. He says he never authorized any of the work. For her part, Ms. Bisbal says Mr. Quiel constantly told her the house was hers, and she could do what she wanted. Ms. Bisbal relies, in part, on this to support her position she owns all or a significant portion of the house.

[50] Allison testified that as far as her father was concerned, anytime anything in the house was fixed, and she brought it up, her father would say “let her fix it it’s her problem”. Allison was asked on cross-examination whether she had ever asked her father for authorization for the improvements her mother was undertaking. Allison responded that her mother would text her father herself. I accept Allison’s evidence, and conclude that Mr. Quiel essentially agreed with the renovations Ms. Bisbal was undertaking, or had no problem with her doing them. I do not, however, accept Ms. Bisbal’s position that Mr. Quiel had gifted the house to her.

[51] It seems to me that $40,000 of the insurance proceeds were sufficient only to remediate the flood damage in the basement. I assume the insurer would have carefully assessed the damage, and only paid an amount sufficient to fix it. What this means, of course, is that $40,000 was insufficient to cover the cost of adding an income suite, replacing the furnace, renovating the kitchen, renovating the upstairs bathroom, adding insulation, new drywall and paint throughout the upper floors of the home, adding casings and mouldings throughout the upper floors of the home, adding a new roof, removing the old oil tank, and repairing and rebuilding the carport. None of these items would have been covered by the insurance proceeds. I therefore accept Ms. Bisbal spent a total of $132,000 on repairs and renovations.

[52] While I have no doubt, however, that Ms. Bisbal had credit card debt and Mr. Quiel took the trailer, even though it belonged to Ms. Bisbal, I am unaware of any legal basis on which I should consider these costs as part of Ms. Bisbal’s claim for reimbursement on the basis of unjust enrichment or constructive trust.

[53] Mr. Quiel’s lawyer argues that it makes no sense that a house with an MPAC value of $304,000 in 2008 would sell for only $565,000 if $182,000 had been invested in it. I disagree.

[54] First, I have no evidence as to the actual market value of the house in 2009 when Mr. Quiel left. From the totality of the evidence, it appears to have been in terrible condition, with significant mould, plumbing and heating issues. It may well have been worth significantly less than its MPAC value in 2009.

[55] Second, I have no real evidence of how much Ms. Bisbal’s contributions enhanced the value of the property, or that it was a “dollar for dollar” enhancement. That being said, before the renovations, the house had no finished basement, no income suite, a broken furnace, collapsing carport, and mould and vermin. After the renovations, the house was waterproofed, mould and vermin free, had a new furnace, new roof and repaired carport. In addition, it had a newly renovated kitchen and bathroom, as well as a newly finished basement with income suite. These are considerable enhancements. I have no doubt they contributed significantly to the ultimate sale price of the property.

The house and entitlement to proceeds:

[56] The house was sold pursuant to court order in March of 2017. It was listed at $560,000 and sold for $565,000. After paying off the outstanding mortgage or $304,018, real estate commission of $28,250, legal fees and other expenses, the net proceeds of sale were $225,869 (rounded). Another court order permitted payment of $35,000 to each of the parties from the net proceeds. Thus, the sum of $155,869 remains in trust. The question, of course, is who is entitled to those proceeds. Ms. Bisbal asserts she is entitled to lion’s share, if not all the proceeds, to compensate her for her contributions to the property, as well as to pay her retroactive and prospective child and spousal support.

[57] For his part, Mr. Quiel takes the position Ms. Bisbal is entitled to nothing from the house. He goes further and advances a claim for occupation rent of somewhere between $1,500 and $2,000 per month for the period from August of 2009 until the sale in March of 2017.

Unjust enrichment

[58] The leading Canadian case on the principle of unjust enrichment is Kerr v Baranow.[^1] At paragraph 31 of the decision, the Supreme Court sets out the test for unjust enrichment as: “For recovery, something must have been given by the plaintiff and received and retained by the defendant without juristic reason.” The court describes the fundamental principle as: “At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain.”[^2]

[59] The doctrine requires both an enrichment and a corresponding deprivation.

[60] If Mr. Quiel is correct that his part of the “bargain” with Ms. Bisbal is that he would provide housing for her and the children until the children reached the age of majority, surely an implied term of the bargain is that the housing would be habitable. It was not. Ms. Bisbal had to expend significant sums just to provide what Mr. Quiel should have, namely: at the very least, a house without mould and vermin, a house with working plumbing, and a house with a working furnace.

[61] Put another way, the bargain must have been that Mr. Quiel would supply the house with the working amenities it had when he bought it. If further amenities were added, they were not something his work and effort provided. As I see it, Ms. Bisbal significantly enhanced the overall amenities in the property, quite apart from fixing the flood damage. What this means is that Mr. Quiel would be enriched as a result of these enhancements.

[62] The next issue is whether enriching Mr. Quiel with the improvements would create a corresponding deprivation to Ms. Bisbal. At paragraph 39, the court in Kerr v Baranow put it in this way:

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.

[63] Here, Ms. Bisbal’s investments clearly improved the house and enhanced its value. Ms. Bisbal is quite clear she had no intention of providing this as a gift to Mr. Quiel. Thus, there is no juristic reason for Mr. Quiel to reap the benefit of Ms. Bisbal’s work without paying for it.

[64] As I have said, I had no evidence, expert or otherwise, as to the value of the house when Mr. Quiel left. The MPAC value for 2008 was $304,000, but that value does not reflect a valuation following any inspection of the house. I accept the evidence that the house was virtually uninhabitable when Mr. Quiel left in 2009. The house was listed at $560,000 in 2017 and sold for about $5,000 above the list price. Both Ms. Bisbal and Mr. Quiel say the house ultimately sold for less than its true value. Ms. Bisbal says the agent undervalued it and sold it to a friend. Not a shred of evidence supports this contention. Similarly, Mr. Quiel suggests the house sold for less because Ms. Bisbal failed to maintain it, and lessened its value as a result. Again, no evidence supports this. All the evidence I have is that the house was listed at a particular price and sold for more. The sale price of $565,000 is the best indicator of its value in 2017.

[65] So, what did each party contribute to the property, and what has each received?

[66] Mr. Quiel contributed the $10,000 to cover the down payment and closing costs. His mortgage payments reduced the mortgage by about $47,400 between purchase and the refinancing in 2010. When he refinanced the property in 2010, Mr. Quiel took out an additional $196,000 in financing. He did so without Ms. Bisbal’s consent. Since they are not married, and Ms. Bisbal was not on title, he did not have to obtain her consent. Mr. Quiel received the entire net benefit of $146,000 from the refinancing.

[67] After the refinancing and up to the sale the mortgage was reduced from $318,000 to $304,000, a principal reduction of $14,000. Since 2015, however, Ms. Bisbal has contributed to the mortgage and also saved the property from foreclosure by paying off three years of accumulated realty tax arrears.

[68] Even allocating the entire principal reduction to Mr. Quiel, he has only contributed capital of $71,000 to the property. Ms. Bisbal has invested about $92,000 simply in labour and materials over and above the $40,000 of insurance proceeds.[^3] Ms. Bisbal also seeks credit for half of the debt, plus interest, she incurred to pay for some of the renovations, along with the cost of the trailer and new appliances. She puts her total contribution, net of the $40,000 at $182,000.

[69] I am not satisfied all of these additional amounts are properly characterized as improvements or enhancements to the property itself. I agree that the cost of new appliances should be included, since they were sold with the house. Ms. Bisbal paid $2,885 for them. I would add this figure to the $92,000 for labour and materials, bringing Ms. Bisbal’s contribution to the property to about $95,000 (rounded).

[70] Thus, Mr. Quiel contributed $71,000 and Ms. Bisbal contributed $95,000. Simply using these figures would result in Ms. Bisbal’s interest being about 57% and Mr. Quiel’s about 43%.

[71] Sadly, I have no expert evidence about the extent to which Ms. Bisbal’s contributions actually enhanced the value of the property. Some of what she did was maintenance. Some was flood damage that was covered by insurance proceeds. Items like the rental suite in the basement, a finished basement, new bathroom and kitchen, new roof, new floors and carport are all clearly capital improvements that enhanced the value of the property. Ms. Bisbal asks for a 60% interest, but without any real evidentiary basis to support her figure. On the totality of the evidence, however, I conclude that Ms. Bisbal made at least an equal contribution to the property as did Mr. Quiel. She is entitled to half its value.

[72] What then is the value of the house? In determining that issue I must not lose sight of the fact that Mr. Quiel already took the benefit of $196,000 of refinancing. He testified that his actual receipts were a net figure of $146,000. I must add that net figure to the current net proceeds to determine each party’s overall entitlement.

[73] When I add $146,000 to the net proceeds of $225,869 the actual net value of the property comes to $371,869. Each party is entitled to half of that amount, namely $185,934.50. Mr. Quiel has already received $146,000 of his share. Each party has also received $35,000 from the sale proceeds.

[74] As a result, Ms. Bisbal is therefore entitled to $150,934.50[^4] of the balance remaining in trust, and Mr. Quiel is entitled to the sum of $4,934.50. If there is any money still remaining in trust after these payments are made, it will be divided equally between the parties.

[75] Ms. Bisbal has also claimed various credits in relation to what she says she paid on account of tax arrears and the like in relation to the house. I am not satisfied these payments should be allocated on this account. I will deal with them when I address the issue of occupation rent.

[76] I have decided each party’s entitlement to the remaining funds from the family home. This determination affects each party’s capital position, which is part of the means, needs and circumstances of the parties. Those means, needs and circumstances are part of what I must consider where addressing the remaining issues of child support and spousal support.

[77] I begin, as I must, by addressing child support first, since children are to be given priority.

Child support

[78] First, I must look at the circumstances since the date of separation, and decide which of the children would have been entitled to child support, and for how long. Then I must determine the parties’ incomes, particularly Mr. Quiel’s. That determination is critical to deciding what Mr. Quiel should have paid on account of child support, and for how long. Last, I must decide whether Mr. Quiel’s paying the mortgage and carrying costs on the home should be credited toward his child support obligation or not. If it is, I must determine how much relates to child support.

Luis

[79] Luis was born in January of 1989. He will soon be 29 years old. At the time of the separation in 2009 he was already 20 years old. At that time, as far as I can tell, he was not in full time attendance at university or college, although he has finally completed a linguistics degree at York University after about 8 years of intermittent study. His mother explained he could not afford to attend university full time because he had to work to earn income to pay for his studies. Mr. Quiel has made no direct contribution to Luis’ support since the parties separated. He made no contribution to the cost of Luis’ post-secondary education. Ms. Bisbal, however, contributed proceeds from a small RESP she had established for Luis. She also paid for one semester of studies for him in the amount of $4,358. I have no evidence of the value of the RESP, but am satisfied that Ms. Bisbal paid the $4,358 in tuition.

[80] As far as I can tell, the small RESP and the tuition payment represent the direct financial contribution Ms. Bisbal made to Luis’ post-secondary education. She mentioned his receiving OSAP loans, but I had no evidence of how much they were. She also said Luis worked from time to time to afford his tuition and other expenses. I have no evidence of what Luis’ earnings might have been, or whether he saved all of it or contributed to his living expenses in his mother’s home.

[81] When it comes to children over the age of majority, s.3(2) of the Child Support Guidelines (CSGs) permits the court either to award the amount of child support determined by applying the Guidelines, or if that approach is inappropriate, to award an amount that is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.

[82] Given the limited evidence I have about Luis and his attendance at university, simply applying the Guidelines is inappropriate. Having regard to the criteria mandated by s.3(2)(b), I find that each parent contributing a like amount to Luis’ post-secondary education is appropriate. Since Ms. Bisbal contributed $4,358 Mr. Quiel should contribute the same amount. Mr. Quiel therefore owes $4,358 on account of support for Luis.

Gustavo

[83] Gustavo was born on June 29, 1992. He is now 25 years old. He attained the age of majority on June 29, 2010, exactly a year after his father left the family home. It is unclear to me what he was doing in the way of education at that time. Since I know he has tried to pursue some post-secondary training, I assume he completed high school. That would normally have occurred at or around the end of the school year when Gustavo turned 18. I conclude Gustavo remained a dependent child until at least June 29, 2010.

[84] Sadly, since then Gustavo has experienced significant mental health issues. He was diagnosed with schizophrenia several months ago, after having received a provisional diagnosis to that effect some years ago.

[85] Gustavo is clearly unable to withdraw from his mother’s care. Ms. Bisbal says Gustavo will not even leave the house without her. I believe her. Gustavo now receives ODSP disability benefits. From those benefits he pays his mother $500 per month for rent for his room. I am unclear what Gustavo’s total monthly benefit is. It would appear, however, that he is able to support himself, however modestly and with his mother’s help, from those benefits. In any case, Ms. Bisbal testified she was not really seeking child support for Gustavo.

Doris

[86] Doris is now twenty. According to Ms. Bisbal, Doris was not able to finish high school until January of this year, just before her 20th birthday. I believe her. Allison also confirmed this. Doris had an Individual Education Plan throughout school to help her with some learning disabilities. When Doris was 19 or so, she briefly moved out of the house and her mother’s care, and lived with a friend’s family. She was not going to school or working. Her father gave her an ultimatum. She would have to work to pay room and board where she was staying, she could come and live with him and his wife, or she could return to her mother’s home.

[87] Doris chose to return to her mother’s home, and was able to complete high school in January of 2017. I conclude Doris was a dependent child, entitled to child support, until January of 2017.

Allison

[88] Allison is nineteen. She also completed high school in January of this year, about two months before her 19th birthday. I am satisfied she was still in school, completing high school, for several months following her 18th birthday. She was still entitled to child support until January 31, 2017.

[89] I therefore come to the following conclusions regarding the children’s right to child support:

a) Luis was entitled, at the very least, to have his father make an equal contribution to his post-secondary education as his mother did. Ms. Bisbal provided at least one tuition payment of $4,358. Mr. Quiel should have contributed at least that amount;

b) Gustavo was entitled to child support from June of 2009 until June, 2010. This is a period of twelve months, with six of those months in 2009 and the other six in 2010;

c) Doris was entitled to child support from June of 2009 until January 31, 2017. Therefore, Doris was entitled to child support for 6 months in 2009, 12 months in each of 2010, 2011, 2012, 2013, 2014, 2015, and 2016, and for one month in 2017.

d) Allison was also entitled to child support from June of 2009 until January 31, 2017. She was therefore entitled to child support for 6 months in 2009, 12 months in each of 2010, 2011, 2012, 2013, 2014, 2015 and 2016, and for one month in 2017.

[90] Leaving aside the issues of delay, or Mr. Quiel’s potential contributions to child support by maintaining the property, he should have been paying child support, based on his income. I therefore turn to the issue of determining Mr. Quiel’s income, including whether I should impute income to him.

Determining Mr. Quiel’s income

[91] Mr. Quiel is an aircraft machinist. In 1990 he joined a company called Mercol Industries. He remained employed there until sometime in 2013 when he decided to leave, and establish his own business. During the time he was at Mercol, Mr. Quiel was able to return to school and upgrade his qualifications. Clearly, he enjoyed stable employment from just after the parties began to cohabit until long after they separated.

[92] Although Mr. Quiel was ordered to produce evidence of his income from 2009 onward, he has failed to do so. What emerges from the evidence is that in 2009 his line 150 income was $60,000 (rounded).

[93] Mr. Quiel failed to produce any tax returns for 2010 or 2011. By 2012, however, his line 150 income was $67,022. Since Mr. Quiel’s income rose about $7,000 between 2009 and 2012 I would assume an average increase of just over $2,000 a year in each of 2010 and 2011. I therefore conclude that in 2010 his income was $62,500 and in 2011 it was $65,000.

[94] In 2013 Mr. Quiel’s line 150 income was $48,000. This figure was made up of about $44,700 in employment income, and $3,466 of net business income. The gross business income was $15,371 for six months. I can only assume that Mr. Quiel therefore earned over $44,000 for six months as an employee. I have no doubt that had he remained as an employee earning at the same rate, he could have earned about $88,000 in 2013.

[95] Mr. Quiel testified that he started his own business because he was finding his employment situation too stressful. He said his stress level was “really high”, and his health had deteriorated really badly. I have no evidence at all as to Mr. Quiel’s health, or any deterioration in it, other than the fact he developed diabetes while he was still living in the home. In fact, Mr. Quiel confirmed that Ms. Bisbal assisted him in managing his diabetes, and getting his levels under control by changing his diet.

[96] In 2014, all of Mr. Quiel’s income was from his sole proprietorship. As I have said, I have no compelling evidence concerning why Mr. Quiel left his employment. He was earning somewhere between $70,000 and $80,000 or more on an annualized basis when he left his employer. Since then, he claims to have earned only as follows, according to line 150 of his income tax returns:

a) 2014 $10,514

b) 2015 $ not produced

c) 2016 $ not produced

d) 2017 $ 46,651 (estimated on financial statement)

[97] Ms. Bisbal takes the position that on the basis of what Mr. Quiel used to earn, his starting his own business and earning significantly less show that he is intentionally underemployed. She says that I should therefore impute a more reasonable income to him, and base my conclusions on support on that imputed income.

[98] In addressing that issue, I must look at the provisions of s.19(a) of the Child Support Guidelines (CSG) which permit the court to impute income to a spouse in circumstances where the spouse “is intentionally underemployed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”

[99] The seminal Ontario case on the issue of intentional under-employment and imputing income is Drygala v. Pauli[^5]. There, at paragraph 23, the court held a trial judge must consider the following three questions in addressing s.19(a):

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the spouse’s reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[100] The court then went on to consider what is meant by “intentional under-employment or unemployment.” At paragraph 24 Laskin JA says:

The meaning of the word "intentionally" in s. 19(1)(a) has received inconsistent application in the courts. On the one hand, there are the so-called bad faith cases in which the word "intentionally" has been interpreted as meaning a deliberate course of conduct for the purpose of undermining or avoiding the parent's support obligation. These cases act on the explicit assumption that a court should not impute income in the absence of such a motive, as to do so results in an onerous financial obligation on a parent who chooses to make a career change. Williams v. Williams (1997), 1997 CanLII 4486 (NWT SC), 32 R.F.L. (4th) 23, [1997] N.W.T.R. 303 (S.C.); Hall v. Hall, [1997] O.J. No. 453 (Quicklaw) (Gen. Div.); Hunt v. Smolis-Hunt, 2001 ABCA 229, [2001] A.J. No. 1170 (Quicklaw) (C.A.); Yaremchuk v. Yaremchuk (1998), 1998 ABQB 118, 38 R.F.L. (4th) 312, 158 D.L.R. (4th) 180 (Alta. Q.B.); Goudie v. Buchanan, [2001] N.J. No. 187 (Quicklaw) (Nfld. S.C.); Ronan v. Douglas-Walsh (1994), 1994 CanLII 3826 (ON CJ), 5 R.F.L. (4th) 235 (Ont. Prov. Div.); Woloshyn v. Woloshyn (1996), 1996 CanLII 18018 (MB KB), 22 R.F.L. (4th) 129, 109 Man. R. (2d) 35 (Man. Q.B.), affd (1997), 1997 CanLII 22945 (MB CA), 28 R.F.L. (4th) 70, 115 Man. R. (2d) 225 (C.A.).

[101] At paragraph 28 he goes on to say:

Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less [page719] than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[102] Finally, at paragraph 45 the court addresses what to consider when imputing income, and says:

When imputing income based on intentional under- employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.).

[103] Before the court can impute income to a party, it must be satisfied the payor has met the criterion of “intentional under-employment”. In doing so, the court must look at two general factors. The first is intentionality. The second, under-employment.

[104] Clearly, Mr. Quiel chose to leave his employment and start his own business. It is irrelevant whether he made the choice to reduce his income for support purposes, or for other reasons. It was nevertheless an intentional act.

[105] Has Mr. Quiel been under-employed since he began his own business? As I see it, he has. I say this because Mr. Quiel deliberately chose to leave lucrative employment in order to start a business on his own. That business has had only marginal success, and has generated only about half of what Mr. Quiel was earning as an employee. I am troubled by the fact Mr. Quiel has failed to produce his 2015 and 2016 tax returns. I draw an adverse inference from that failure.

[106] I note that in his most recent financial statement, Mr. Quiel estimates his income at $46,651, based on gross business revenues of $82,652. I have no idea of his current business expenses, or whether any or all of them could or should be added back into his income pursuant to the provisions of Schedule III of the CSG (Adjustments to Income). I have no doubt Mr. Quiel could have remained at his old job and earned at least $70,000 per year, if not more. As a result, based on his current stated income, and past income from 2014 onward, Mr. Quiel is clearly underemployed. He could have earned significantly more than he says he earns, and has made the change to his employment intentionally.

[107] Therefore, I conclude Mr. Quiel is intentionally under-employed. That, however, is not the end of the analysis. Next I must examine whether the under-employment results from either educational pursuits, health issues or the needs of a child.

[108] Here, Mr. Quiel was not the custodial parent and has not had much of a relationship with any of the children since the separation. It cannot be said his choice of employment is required by the needs of any of the children. Similarly, Mr. Quiel has not pursued any educational courses since the separation. As to any health needs, I have no medical evidence to support Mr. Quiel’s contention that he found his employment situation too stressful to continue, or that pursuing his own business alleviated any stress. I would have thought the stresses of searching for new clients and the challenges of running his own business would be equally stressful to Mr. Quiel as working at his old job.

[109] As a result, I am left with my conclusion regarding intentional under-employment. I must now deal with a reasonable income figure to impute to Mr. Quiel. Looking at his historical employment income, he likely would have earned close to $80,000 in 2013 had he remained an employee. I assume his income would have increased somewhat, as it had in the past. He clearly could have earned significantly more as an employee than he did in his own business. Ms. Bisbal has asked me to impute income of $60,000 to Mr. Quiel. Given the totality of the evidence this seems more than fair and reasonable. I therefore impute income of $60,000 per year to Mr. Quiel for each year following 2012.

Calculation of child support that should have been paid

[110] The following chart sets out the child support Mr. Quiel should have paid for the children from the time he left the home until the girls completed high school in January of 2017:

YEAR	NO. OF CHILDREN	RESPONDENT’S INCOME	TABLE AMOUNT	NO. OF MONTHS	TOTAL OWING
2009	3	$60,000	$1,177	6	$7,062
2010	3	$62,500	$1,223	6	$7,338
2010	2	$62,500	$937	6	$5,622
2011	2	$65,000	$972	12	$11,664
2012	2	$67,022	$996	12	$11,952
2013	2	$60,000*	$892	12	$10,704
2014	2	$60,000*	$892	12	$10,704
2015	2	$60,000*	$892	12	$10,704
2016	2	$60,000*	$892	12	$10,704
2017	2	$60,000*	$892	1	$892
TOTAL OWING					$87,346

*income imputed

[111] I must add an additional $4,358 to the total owing, to take into account Mr. Quiel’s required contribution to Luis’ post-secondary education. This brings the total that Mr. Quiel owes to $91,704 on account of child support.

[112] Having set out what Mr. Quiel should have paid, I must consider Ms. Bisbal’s lawyer’s letter to Mr. Quiel in 2010 in the context of what Mr. Quiel actually paid in terms of the mortgage and carrying costs on the family home. The letter, of course, said there would be no retroactive claim if and only if Mr. Quiel continued to pay the carrying costs. Mr. Quiel did so. The lawyer never followed up with any further demands. Nothing further happened in terms of proceedings until Ms. Bisbal commenced this application in 2015.

[113] It is somewhat difficult to calculate exactly what Mr. Quiel paid. The situation is complicated by the fact that Mr. Quiel increased the mortgage by nearly $200,000 shortly after he left. He reaped the entire benefit of the increased funds. The mortgage costs increased as a result. It seems to me Mr. Quiel should really only have credit for the amount the carrying costs were prior to the refinancing.

[114] At the time of the refinancing the mortgage was being paid at the rate of $252.29 per week. This translates into $1,093 per month, rounded. I would give Mr. Quiel credit for this amount from the date of separation until the order of Backhouse J in January of 2016 which required the parties to share the mortgage cost equally. From that point onward, I would credit Mr. Quiel with half of the prior mortgage amount on a monthly basis. Similarly, after the refinancing the taxes were included in the monthly mortgage payment. After the order of Backhouse J, Ms. Bisbal was effectively paying half the taxes. As a result, Mr. Quiel should only be credited with half the taxes after that date.

[115] Mr. Quiel did not pay the taxes on time. In fact, they were in arrears for the years 2011 through 2013 for a total of more than $4,300. Ms. Bisbal paid the arrears along with other amounts owing. In addition, Mr. Quiel allowed the mortgage to fall into arrears and the mortgagee threatened foreclosure. Ms. Bisbal paid the mortgage arrears of $8,960. Mr. Quiel paid back $8,000 of that amount. Ms. Bisbal says he should pay her the balance, along with the tax arrears she paid.

[116] In addition, Ms. Bisbal claims reimbursement for mortgage payments she made from July 2015 to February 2016. She says she paid over $27,000 on account of the mortgage over this period.

[117] Similarly, hydro was often in arrears, and Ms. Bisbal received a number of disconnect notices from Toronto Hydro at various times between 2011 and 2014. She had to pay in order to have electricity in the house.

[118] In all, therefore, I credit Mr. Quiel with mortgage payments he made, along with taxes of roughly $3,000 per year.[^6] I have no compelling evidence of what he might have paid on account of utilities, and therefore give no credit on account of utilities. By the same token, I will not require Mr. Quiel to reimburse Ms. Bisbal for the utility costs she undertook.

[119] Since Ms. Bisbal paid the mortgage from June 2015 to February 1, 2016 Mr. Quiel is entitled to a monthly credit of $1,093 for mortgage, and $250 per month for taxes for a total of $1,343 per month only until the end of May of 2015. He is then entitled to a credit of $672 per month from February 1, 2016 until the house was sold. .

[120] From the chart above, Mr. Quiel should have paid a total of $91,704 on account of child support. He paid the mortgage and taxes for the six months remaining in 2009 after the separation. He continued to pay for calendar years 2010 through May of 2015 for a total of 71 months. He is entitled to a credit of $95,353 for this period. Mr. Quiel is then entitled to a credit of $672 per month for the 12 months following the order of Backhouse J, until January of 2017. Thus, Mr. Quiel is entitled to a credit of $1,343 per month for 71 months for $95,353 and a further $672 per month for 12 months for $8,064. Mr. Quiel is therefore entitled to a total credit of $103,417 against his child support obligation of $91,704. This leaves an “overpayment” of $11,713.

[121] I will address how to deal with this “overpayment” of $11,713 when I consider Ms. Bisbal’s claims for both retroactive and prospective spousal support.

Spousal support

[122] In January of this year, the court made a temporary order requiring Mr. Quiel to pay spousal support of $362/month, based on imputed income of $45,000 to Ms. Bisbal. He has paid nothing. Mr. Quiel’s position seems to be that since a Support Deduction Order was never taken out, he was “afraid” to make payments directly to Ms. Bisbal because she would lie about receiving them, or something. His position is insupportable. Spousal support was to begin after the house was sold in March. Mr. Quiel is clearly in arrears, and owes 9 months of spousal support for 2017. Any spousal support arrears shall be credited against the $11,713 “overpayment” of child support, subject to any further retroactive adjustment I make concerning spousal support.

[123] Mr. Quiel takes the position Ms. Bisbal has no entitlement to spousal support on any model of support. He suggests the parties’ finances were always separate. He says they never maintained joint accounts. He says Ms. Bisbal was never dependent on him. Mr. Quiel goes further, and suggests that I should impute income to Ms. Bisbal. When I do so, he says it will be clear she has no need of spousal support.

[124] I do not accept Mr. Quiel’s arguments. The Family Law Act governs Ms. Bisbal’s claim for spousal support. The parties are clearly common law spouses, since they lived together in a relationship of some permanence and are the parents of four children.[^7] Section 30 of the Family Law Act imposes an obligation on each spouse “to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.”

[125] Ms. Bisbal has not worked outside the home for wages in any meaningful way since her motor vehicle accident in 2005. Even before then, she relied on intermittent social assistance benefits, the child tax credit and small sums she was able to earn by occasionally waitressing at a banquet hall, or selling Avon or other products. She also relied on gifts from family members, and running up significant credit card debt. I do not see this as being “self-supporting”.

[126] Ms. Bisbal’s primary role was to manage the household and take care of the four children. She had to do so without any significant financial contribution from Mr. Quiel, apart from his paying the mortgage and carrying costs on the family home. Ms. Bisbal was clearly dependent on Mr. Quiel for housing, and whatever other costs he deigned to cover. Mr. Quiel neglected his family’s other needs at the expense of Ms. Bisbal. She was constantly in debt in order to cover the family’s other costs. In the meantime, Mr. Quiel was able to upgrade his skills, and increase his yearly income while his spouse and children relied on food banks and second hand clothing to get by.

[127] I conclude Ms. Bisbal has not worked since long before the parties separated. Ms. Bisbal ultimately received a settlement of her accident claim in 2011. Until she did, she had maintained herself and the children by incurring debt. At the time she received her settlement, she owed over $66,000, primarily on credit cards. After paying that and her outstanding attendant care costs she had about $36,000 left from the settlement. She has been receiving ODSP benefits since 2011. At present, Ms. Bisbal receives ODSP of $24,896 per year and $500 per month in rent from her son Gustavo. He pays that from his own ODSP benefits. Ms. Bisbal’s current income is therefore $30,417. I have no compelling evidence to impute any additional income to her.

[128] Mr. Quiel’s income is, has been, and ultimately should be in the range of at least $60,000 per year. I view this as an extremely conservative figure at which to impute income to Mr. Quiel. For the purposes of determining spousal support I will assume Ms. Bisbal’s income at $30,417 and Mr. Quiel’s at $60,000. When I consider the provisions of the Spousal Support Advisory Guidelines for parties of these parties’ ages, these incomes and a relationship of 20 years, I am left with a range of monthly spousal support values from a low of $1,350 to a mid-point of $1,575 to a high of $1,800, all for an indefinite duration.[^8]

[129] Overall, in coming to a decision about spousal support I must also take into account Ms. Bisbal’s considerable delay in pursuing any claim, along with her stated means and needs, as well as those of Mr. Quiel.

[130] Ms. Bisbal’s most recent financial statement shows her total income (ODSP plus rent from Gustavo) at just over $2,500 per month, with monthly expenses of $5,180 per month. Included in Ms. Bisbal’s monthly expenses are $800 per month for storage lockers and $800 per month for debts. Given my determination regarding the house proceeds, I assume Ms. Bisbal will be able to eliminate these costs, thus reducing her current monthly expenses to about $3,580. At best, therefore, her monthly shortfall is about $1,000.

[131] When I look at Mr. Quiel’s most recent financial statement, he suggests his monthly income is $3,887 with monthly expenses of $3,246. The income figure is a net figure, against gross business revenues of about $6,900 per month. According to his sworn statement, Mr. Quiel is operating at a monthly surplus of over $640 per month, even with monthly income of only $3,887. If one takes Mr. Quiel’s gross revenues as being closer to his real income for support purposes, his income would be closer to $82,800. I recognize that Mr. Quiel has some necessary business expenses. The totality of the evidence supports my finding that either Mr. Quiel actually earns $60,000 (but pays tax on less) or should have income of $60,000 imputed to him.

[132] With income of $60,000 a year, Mr. Quiel can easily cover Ms. Bisbal’s shortfall of $1,000 per month. Given that Ms. Bisbal’s ODSP benefits are apparently tax free, her receiving taxable spousal support of $1,000 per month would result in her paying little or no income tax.

[133] I also consider whether this might be a case for lump sum spousal support. Lump sums create a clean break between parties, and provide them with a degree of finality. The range of lump sums suggested by the SSAGs, however, is far beyond Mr. Quiel’s resources and ability to pay.[^9]

[134] I therefore find periodic payments for spousal support at $1,000 per month are reasonable in all the circumstances. The next issue I must address is when those payments should begin.

Retroactivity

[135] Ms. Bisbal suggests that spousal support should be paid with retroactive effect. Her submissions are not entirely clear as to what she seeks as a commencement date. Ms. Bisbal’s claim for spousal support was only formally launched when she began this lawsuit in 2015. Even then, she did not pursue temporary support until Justice Horkins made an order for $362 per month in January of this year. Payments were to start when Ms. Bisbal vacated the house. That occurred in March. Accordingly, spousal support should have begun at least in April 2017. When I take Ms. Bisbal’s significant delay into account, I am not prepared to order an earlier commencement date.

[136] As I see it, the appropriate amount of spousal support should have been $1,000 per month, with effect as of the effective date of the temporary order. Mr. Quiel has paid nothing on account of the temporary order. With the retroactive adjustment I have made, he owes $1,000 per month from April, 2017 onward. Accordingly, to and including December of 2017, Mr. Quiel owes arrears of spousal support fixed at $8,000. Mr. Quiel shall be credited with payment of this $8,000 against his child support “overpayment” of $11,713 referred to in the section on child support, above.

[137] This leaves Mr. Quiel with a remaining “overpayment” of $3,713. This sum will cover just over 3 months of future spousal support payments from January 1, 2018 onward. Accordingly, Mr. Quiel is to be credited with spousal support payments of $1,000 per month from January 1, 2018 to and including March 30, 2018. He will be credited with the sum of $713 against his spousal support obligation of April 1, 2018. Accordingly, on April 1, 2018 Mr. Quiel will pay spousal support of $287, and thereafter, commencing May 1, 2018 will pay spousal support of $1,000 per month.

Occupation rent

[138] Although Mr. Quiel claimed occupation rent in his Answer, he led no evidence on what would have been a reasonable rental for the house, and made no arguments in relation to any foundational basis for any entitlement occupation rent.

[139] In any case, Ms. Bisbal made realty tax payments, some mortgage payments and paid hydro arrears over the years. As I see it, taking into account the totality of the evidence, these payments offset any potential occupation rent.

[140] As a result the claim for occupation rent is dismissed.

Conclusion:

[141] For all these reasons, a final order will issue in the following terms:

a) Declaring that from the remaining net proceeds of sale of the home at 35 Hallow Crescent, Etobicoke, Ontario the applicant is entitled to the sum of $150,934.50 and the respondent is entitled to $4,934.50. Any balance remaining in trust shall be divided equally between the parties;

b) Ordering and directing the lawyer holding the net proceeds in trust to make the payments set out in paragraph (a) above, and to do so forthwith;

c) Declaring that the respondent has satisfied his child support obligations both retroactively and prospectively by way of his contributions to maintaining the carrying costs on the family home;

d) Declaring that the respondent has satisfied his spousal support obligations both retroactively and to and including March 30, 2018 by way of the balance of his contributions to maintaining the carrying costs on the family home;

e) Ordering the respondent to pay spousal support in the amount of $287 on April 1, 2018, and thereafter the sum of $1,000 per month commencing May 1, 2018;

f) Dismissing the respondent’s claim for occupation rent; and

g) Ordering a Support Deduction Order to issue.

[142] If the parties are unable to agree on the issue of costs, they will argue the issue in writing. The applicant shall submit a bill of costs and submissions within 3 weeks of the release of these reasons. Submissions shall be no longer than 4 pages in length, double spaced, excluding attachments. The bill of costs will outline the year of call and actual billing rate for any lawyer who has provided services to a party. They will also include any settlement offers that might bear on either entitlement to costs, or the scale of costs to be awarded.

[143] The respondent will respond in similar fashion within 3 weeks of being served with the applicant’s submissions.

[144] In either case, the submissions shall be sent to my attention, c/o Judges’ Administration, First Floor, Court House, 361 University Avenue, Toronto, M5G 1T3.

MESBUR J.

Released: 20171129

COURT FILE NO.: FS-15-00020371-0000

DATE: 20171129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DORIS BISBAL-PALACIOS

Applicant

• and -

GUSTAVO ADALBERTO QUIEL SANTAMARIA

Respondent

REASONS FOR JUDGMENT

R. Mesbur J.

Released: November 29, 2017

[^1]: 2011 SCC 10, [2011] 1 S.C.R. 269 [^2]: Ibid. paragraph 31 [^3]: Exhibit 3 pages 1 and 2 contain a summary of all the invoices Ms. Bisbal has produced. They are divided between what she repaired before the flood and after the flood. They include invoices to support the plumbing repairs, shed and assembly, oil tank removal, washroom, kitchen, bedroom, dining room and living room renovations, as well as all the work done in the basement, both to remediate the flood damage and add the income suite and finish the rest of the basement. [^4]: Ms. Bisbal’s half share of $185,934,50 minus $35,000 = $150,934.50 [^5]: 2002 CanLII 41868 (ON CA), [2002 O.J. No. 3731 (O.C.A.) [^6]: Exhibit 11 shows 2013 tax arrears at $2,933.15, which would appear to be taxes for the whole year. [^7]: The definition of “spouse” in s.29 of the FLA. [^8]: My SSAGs calculations are based on my assumption that there are no dependent children on a going forward basis. [^9]: The midpoint ranges are from about $348,000 to $400,000 to $454,000.