OVERVIEW

[1] Ms. Henry and Mr. Boyer’s first child was born in 2008, when the parties were still dating but living in separate homes. While Ms. Henry was on a waiting list for subsidized housing, Mr. Boyer offered to help her buy a home immediately. He said this was to avoid having their child live in “a ghetto”. Mr. Boyer gave funds to Ms. Henry that, added to her own, enabled her to buy a home in Brampton. Mr. Boyer co-signed her mortgage, which required him also to be on the title.

[2] When the parties’ second child was born in 2011, Ms. Henry allowed Mr. Boyer to move into the house he had helped her buy. Ms. Henry had initially insisted the parties marry before living together. By living in Ms. Henry’s home, Mr. Boyer was able to rent out additional space in his own home and acquire additional rental properties. He did not marry Ms. Henry, and now claims an interest in the home he helped her buy. He resists her claim to have the children reside primarily with her, and her claim to full table child support.

[3] The court heard a trial of Ms. Henry’s Application to vest the home in her, to order the children’s primary residence be with her, and to order full table child support. The court then reserved judgment. These reasons address the issues raised at the trial.

BACKGROUND FACTS

[4] Ms. Henry is 47 years old, and has resided in Brampton since July 1997, when she was 26. She is a technical specialist with the Peel District School Board and a part-time motion picture actor.

[5] Mr. Boyer is 49 years old, and has resided in Mississauga for 22 years. He is a teacher with the Peel District School Board. He is also a landlord for two residential rental properties.

[6] The parties have two children together:

Kiera Milan Boyer, age 10;
Karis Michelle Boyer, age 7.

[7] When Kiera was born in 2008, Ms. Henry was renting accommodation and was on a waiting list for subsidized housing. Mr. Boyer offered to help her buy a home, he said, to avoid having their child grow up in “a ghetto”. He provided $15,000 for the purchase. Ms. Henry characterizes it as a loan; Mr. Boyer characterizes it as an investment. Adding $20,000 of her own funds to the funds she had received from Mr. Boyer, and with the two of them signing of the mortgage, Ms. Henry purchased 44 Copeland Road in Brampton.

[8] Although the parties were still “dating” and Ms. Henry had resisted living together before marriage, when Karis was born in 2011, Mr. Boyer pressured Ms. Henry to allow him to move into the home.

[9] The parties cohabited for a period of time. They disagree on the length of cohabitation. Mr. Boyer asserts that their intimate relationship ended in 2011, before he moved into her home. He said he moved in to facilitate joint parenting. He denies that they were married or common law spouses. Ms. Henry asserts they were common law spouses. There is no dispute that they continue to live under the same roof at the Copeland Road property. They differ regarding the date of separation. Mr. Boyer asserts that their relationship ended in 2011; Ms. Henry asserts that they cohabited until at least 2013.

[10] Ms. Henry began the present proceeding with an Application issued February 17, 2017, in which she claimed custody of the parties’ two children, child support, Mr. Boyer’s proportional contribution to the children’s special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, and exclusive possession of the Copeland Road property. With regard to the children, she claimed joint custody with reasonable and generous access to Mr. Boyer. She seeks a transfer of Mr. Boyer’s interest in the home to her, free of encumbrances.

[11] Mr. Boyer delivered an Answer in which he claims custody of the children and child support, and sale of the Copeland Road property, in which he claims to have a beneficial interest.

[12] At a Case Conference on July 5, 2017, McSweeney J. ordered the parties to provide financial disclosure and permitted motions to proceed. She noted that the parties had separated in 2011 or 2013, but were still under the same roof. Both wanted to live in separate homes but did not want to compromise their time with their daughters. McSweeney J. encouraged them to consider ways to stabilize and improve their communication as parents to make a sharing of parenting responsibilities possible when they lived in separate homes.

[13] On August 18, 2017, Trimble J. made an Order granting Ms. Henry leave to amend her application to correct dates, remove inapplicable clauses, request retroactive s. 7 expenses, add pertinent facts regarding custody and access, and make a constructive trust claim based on unjust enrichment. Ms. Henry issued her Amended Application on September 13, 2017; Mr. Boyer delivered his Amended Answer on September 28, 2017.

[14] Van Melle J. held a Settlement Conference on August 30, 2017. She scheduled a three-day trial for the week of March 26, 2018. In her Trial Scheduling Endorsement Form, Ms. Henry listed, as issues for trial, custody, access, child support, retroactive s. 7 expenses, property division, and Mr. Boyer’s rental income. Mr. Boyer added the issues of transfer of property, Ms. Henry’s income, and disclosure of the children’s finances.

[15] Snowie J. conducted a Pre-Trial Conference on March 19, 2018. In her endorsement, she noted that the parties had been unable to resolve any of the issues at the Pre-Trial, and that the issues for trial were the date of the parties’ separation, custody and access, ongoing and retroactive child support and s. 7 expenses, and property issues, including unjust enrichment and set off. She did not think the trial could be completed in less than a week because the parties were self-represented and all issues were still in dispute.

[16] The trial proceeded on March 20, 21, and 22, 2018, and judgment was then reserved.

ISSUES

[17] The parties require this Court to determine the following issues:

The date of the parties’ separation;
Custody of the children;
Access to the children;
Ongoing and retroactive child support;
Ongoing and retroactive contribution to s. 7 expenses;
Division of property, including Ms. Henry’s claim for a constructive trust interest in both the Copeland property and Mr. Boyer’s other properties, based on unjust enrichment and set- off of claims for unequal contributions to the maintenance of the home.

PARTIES’ POSITIONS

Date of separation

[18] Ms. Henry asserts that the parties separated in March 2013. Mr. Boyer asserts that they were never in a common law relationship and that their sexual relationship ended by August 2011, the month before he moved into the Copeland Road property.

Custody of the children

[19] Ms. Henry seeks an order for joint custody of the children or, in the alternative, sole custody with generous and reasonable access to Mr. Boyer. Mr. Boyer seeks joint custody with shared parenting. Both parties recognize the importance of the other’s involvement in the children’s lives

Access to the children

[20] Ms. Henry seeks an order that the children reside primarily with her during the academic year, from September 1 to June 30, with reasonable and generous access by Mr. Boyer. She proposes that Mr. Boyer have access to the children two evenings per week and two overnight weekends, from September 1 to June 30, and, on 24 hours’ notice, extra time should he have a special activity planned or just want to spend extra time with the children when they do not have previous commitments. She proposes a week-about arrangement during the summer months.

[21] Ms. Henry proposes that if either parent has a commitment and cannot care for the children on their access day, they will notify the other parent and give him or her the opportunity to do so. If the notified parent cannot care for the children, the other parent will make childcare arrangements at his or her own expense.

Ongoing and retroactive child support

[22] Ms. Henry seeks an order requiring Mr. Boyer to pay full table child support for the children after a full analysis of the time the children spend with each parent. She seeks child support based on an imputed minimum income of $116,000 to Mr. Boyer, as she alleges that he has diverted and/or under-stated his income. She says that he has unreasonably deducted personal expenses from his reported income, and, if any of the four units in his rental properties are not rented, has not used his assets to generate income to their full potential.

[23] Mr. Boyer claims, based on shared parenting, a calculation of child support on a set-off basis. He submits that his income is as he has stated it in his income tax returns.

Ongoing and retroactive s. 7 expenses

[24] Ms. Henry seeks to be reimbursed retroactively for her excess contributions to the payment of the children’s special and extraordinary (s. 7) expenses, including child care and extracurricular activities. She additionally seeks an order that provides for the payment of the children’s post-secondary education expenses. She seeks reimbursement, retroactively, for payments of s. 7 expenses that she made from October 2009, including childcare and extra-curricular activity costs. She says that she has paid all childcare expenses and 98% of extra-curricular activities costs. She says that she has requested assistance from Mr. Boyer many times, even before her first pregnancy, and gave him a support calculator, but Mr. Boyer ignored it, choosing to give what suited him. She says that Mr. Boyer responded by telling her that she should pay the extra expenses with the amounts he has paid her, calling her a “greedy bitch” for requesting additional funds.

[25] Mr. Boyer seeks an order that the children’s incomes from their acting jobs and other incomes be attributed to Ms. Henry or, alternatively, deducting those amounts from the children’s s. 7 expenses prior to the determination of the parties’ proportionate contributions to the payment of those expenses.

Division of property

[26] Ms. Henry claims a constructive trust interest in the 44 Copeland Road property based on unjust enrichment, and a set off of the unequal contributions she says she made to the maintenance of the home against any amount that may be owing to Mr. Boyer for his share of the property. She requests an order that Mr. Boyer transfer his entire interest in the property to her, free of all encumbrances, and that he pay the cost of the preparation and registration of the transfer. In the alternative, she requests an unequal division of the equity or net proceeds of sale of the Copeland Road Property, proportionate to her contribution, based on the doctrine of unjust enrichment, and the remedy of constructive trust.

[27] In the further alternative, Ms. Henry seeks an order that Mr. Boyer pays to her his 50% share of the mortgage, property tax, property insurance, and maintenance costs of the Copeland Road Property from September 26, 2008, to the present. She additionally seeks an order for a monetary remedy for her provision of childcare and other domestic services which directly or indirectly contributed to and accelerated Mr. Boyer’s ability to pay off his mortgage on his property at 4144 Chadburn Crescent, Mississauga, and an additional rental property near Square One between 2008 and the present, based on the doctrine of unjust enrichment and the remedy of constructive trust.

[28] Ms. Henry submits that she has contributed approximately 90% to the expenses and upkeep of the Copeland Road property after all of her contributions are factored in. She submits that she should be awarded a greater share of the equity in the property, proportionate to her contributions.

[29] Ms. Henry is asking that Mr. Boyer transfer his interest in the Copeland Road property, after a minor credit, proportionate to his contributions.

[30] Mr. Henry is seeking an order for occupation rent from Ms. Henry for the exclusive use of the jointly owned Copeland Road property from 2008, when she bought the property, to 2011, when he moved in to it.

ANALYSIS AND EVIDENCE

a) When did the parties separate?

Legislative framework

[31] The Family Law Act, R.S.O. 1990, c. F.3 provides:

(1) In this Act,

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage;

[32] Ms. Henry asserts that she and Mr. Boyer began their sexual relationship in July 2002. She states that in August 2011, after the parties’ second child, Karis, was born, Mr. Boyer moved into the Copeland Road property, which Ms. Henry had purchased in 2008, with his help. She states that he slept in a separate bedroom beginning in about March 2013.

[33] Mr. Boyer asserts that the parties “dated” for a time but that their sexual relationship ended in August 2011, before he moved into the Copeland Road property. He states that they were never married nor did they live as common law spouses. He says that they had separate residences until August 2011, after the birth of their second daughter. He says that at that time, he moved into the Copeland Road property which Ms. Henry had occupied since 2008, and that, by that time, their conjugal relationship had ended and their joint living arrangement was simply to make co-parenting more manageable.

[34] Mr. Boyer notes that Ms. Henry, in her original Application, asserted that the parties started living together on September 1, 2011, and separated on October 22, 2011. In the section, “Important Facts Supporting My Other Claim(s)”, Ms. Henry stated:

The Respondent and I have lived separate and apart for most of 5 years that he lived in the home. He has slept in his own room since he moved in.

[35] For the following reasons, I find that the parties cohabited from about August 2011 until 2013:

(a) I do not accept Mr. Boyer’s evidence that their sexual relationship ended by August 2011 or his evidence that he moved to Ms. Henry’s home only for the purpose of co-parenting. His parenting began with the birth of the parties’ first child, Kiera, in 2008, and he could have continued his parenting from his home at 4144 Chadburn Crescent after Karis was born in August 2011, had he wished to do so.

(b) I find that Mr. Boyer was principally motivated by other considerations to move into 44 Copeland Road, namely, to participate in conjugal relations with Ms. Henry and to derive the benefit of low-cost accommodation in her home with housekeeping provided by her, while maximizing the rental income he could derive from his property at 4144 Chadburn Crescent in Mississauga, and facilitating the acquisition of an additional rental property at 4094 Woodington Drive in Mississauga. Mr. Boyer named Ms. Henry on his extended benefit plan, and Ms. Henry named him on hers, but their finances were otherwise separate.

(c) I accept Ms. Henry’s evidence that she and Mr. Boyer were having sexual relations after Karis was born in August 2011, and that they moved Karis in with her sister in order to avoid her being a barrier to their continued intimacy.

(d) Ms. Henry introduced photographs taken on a trip to Virginia, in the United States, in late 2011, when Karis was a few months old. Ms. Henry states that during the trip she and Mr. Boyer were intimate.

(e) Ms. Henry tendered an Expedia itinerary and invoice that she paid in December 27, 2011, for a cruise that she and Mr. Boyer, their two children, and Mr. Boyer’s sister and mother took as a family to the Eastern Caribbean in March 2012.[^1] I accept Ms. Henry’s evidence that Mr. Boyer paid for the cabin occupied by him and Ms. Henry and their daughters, and that they were intimate during that trip.

(f) Ms. Henry tendered an email from Mr. Boyer dated March 20, 2013, in which he announced his intention to move out of the bedroom that the parties had shared since he moved into the home in August 2011. I find that this marked the beginning of the parties’ separation, and that they continued living separate and apart under the same roof after that date, but with intermittent efforts at reconciliation until the end of 2013.

(g) Ms. Henry tendered photographs taken in August 2013, when they travelled as a family to Disney World in Florida, with her mother and older daughter, and Mr. Boyer’s father and his cousin Letoya and her daughter Olivia, during which she acknowledges that there was no intimacy between herself and Mr. Boyer, owing to the fact that, according to her, Mr. Boyer’s family treated her as their cook.

(h) Ms. Henry tendered photographs taken in August 2014 and a boarding pass for a trip they took as a family to Montego Bay, Jamaica, during which she says that intimacy resumed temporarily between herself and Mr. Boyer.

(i) I accept Ms. Henry’s evidence that she and Mr. Boyer grew more distant by 2015, when Mr. Boyer travelled to Cuba for a wedding, but that the wedding inspired him to renew his efforts to restore their own relationship, which was revitalized for two months following his return, and they again engaged in sexual relations, but this reconciliation proved to be short lived.

[36] Based on the foregoing, I find that the parties cohabited from about August 2011 until March 2013, with intermit efforts at reconciliation after that date, until the end of 2013, after which they were separated with no reasonable prospect of reconciliation.

b) Custody of the children

Legislative framework

[37] Section 24 of The Children’s Law Reform Act, R.S.O. 1990, c. C.12 states:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

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

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[38] I will consider the evidence in relation to each of the factors that is pertinent to the determinations to be made in relation to Kiera and Karis.

i. Love, affection and emotional ties between Kiera and Karis and her mother and father and grandparents

[39] Kiera and Karis have strong bonds of affection with both parents and with their extended families.

ii. Kiera and Karis’s views and preferences, if they can reasonably be ascertained

[40] Kiera and Karis enjoy the time they spend with each parent.

iii. The length of time that Kiera and Karis has lived in a stable home environment

[41] Kiera and Karis have lived in a stable home environment with both parents since birth, as the parents have continued living separate and apart under the same roof. Kiera and Karis are therefore comfortable in the care of each parent.

iv. The ability and willingness of Mr. Boyer and Ms. Henry to provide Kiera and Karis with guidance and education, the necessaries of life, and any special needs

[42] Kiera and Karis have no known special needs that require specialized care. They both appear to be thriving in their mother’s primary care and with their father’s active involvement in their lives.

[43] Mr. Boyer has not yet achieved a balance between his commitments to his children and his commitments to his employment, rental properties, and separate interests in a way that gives Ms. Henry predictable periods when she is relieved of her role as principal care-giver. This is caused by, or reflected in, the following circumstances:

(i) As a teacher, Mr. Boyer has limited flexibility in his job. He begins work at 8:00 a.m. He coaches many after school activities, which can interfere with his ability to pick up the children on the two days when the parties agreed he would do so. He attends various job-related tournaments, such as Region of Peel Secondary School Athletic Association (ROPSAA) and the Ontario Federation of School Athletic Associations (OFFA), which often require him to be out of town for a few days.

(ii) As landlord for two properties with four units each, Mr. Boyer must attend to make repairs when they are required. He must also meet potential tenants and comply with other commitments.

(iii) Ms. Henry has been solely responsible for dropping the children at their respective schools, which start at 8:15 a.m. and 8:40 a.m. Each party must assume responsibility for this task on the days parenting is assigned to them. I accept Ms. Henry’s evidence that Mr. Boyer has declined, on multiple occasions, to help get the children to school in the morning, even when he has a late start day.

(iv) I accept Ms. Henry’s evidence that she prepares the children’s meals and lunches daily, ensures that they are on time for the bus and for school, and arranges play dates for them. She corresponds and collaborates with teachers, and pays for school trips and extra school-based activities. Ms. Henry has been responsible for caring for the children the majority of the time when they are sick, or when there is a professional development day at school. She takes the children to all appointments during the work day. For example, when Kiera sprained her wrist, Ms. Henry took her to appointments at Brampton Civic Hospital. Each appointment was a minimum of three hours during the work day. It is reasonable to expect Mr. Boyer to assume responsibility for these tasks on days when parenting is assigned to him.

(v) Mr. Boyer plays squash, watches sporting events, works out and socializes. On Tuesday and Thursday evenings, the days the parties agreed he would spend time with the children, he has often left before the children’s bed-time if there is another adult at home who can care for them.

(vi) On weekends, Ms. Henry takes the children to church on Sundays, takes them to their activities and events, like trips to the zoo and water-parks. When she is otherwise occupied, she has had to rely on her adult children or niece for childcare. This should not be necessary on alternate weekends, when the children’s care should be Mr. Boyer’s responsibility.

(vii) Mr. Boyer has 8 weeks of vacation during the summer. Nevertheless, Ms. Henry has placed the children in summer camp and had a babysitter on standby because Mr. Boyer has been unable or unwilling to assume care for the children during his vacation periods.

(viii) Mr. Boyer has declined to use his sick or family responsibility days to care for the children when he was eligible for a retirement gratuity, choosing to save them for a payout instead.

(ix) I find that there have been multiple occasions when Mr. Boyer has texted Ms. Henry or her adult son, asking them to pick up the children because he is running late for various reasons. Additionally, he has sometimes omitted to inform Ms. Henry, until the morning of events, like parents’ night at school, an athletic banquet, or a graduation ceremony, and has expected her to make herself available to pick up the children and care for them.

[44] Time conflicts are inevitable in any household. When they are necessary, they should not reflect negatively on Mr. Boyer’s commitment to Kiera and Karis. Where they are discretionary, it is reasonable to expect him to give priority to the children. Each parent must do this consistently enough to respect the other’s time and accommodate the other’s need for predictability in their lives and schedules.

[45] Once the parties have established separate households and Mr. Boyer has demonstrated a willingness and ability to conform to a parenting schedule, he may apply to the court to review the parenting schedule.

v. The plan proposed by each of Mr. Boyer and Ms. Henry for Kiera and Karis’s care and upbringing

[46] Mr. Boyer currently cares for Kiera and Karis on Tuesday and Thursday evenings and on alternate Fridays. He generally leaves when the children go to bed at 8:30 p.m. The parties have been able to create a parenting schedule and observe it without generating high conflict between them that would be harmful to the children.

[47] Ms. Henry has encouraged and facilitated Mr. Boyer’s relationship with Kiera and Karis to the extent that he has been willing to assume care of them. The children currently attend different schools. They begin school at 8:15 a.m. and 8:40 a.m., respectively. Ms. Henry has applied twice for flex boundary and was denied both times.

[48] Ms. Henry proposes that Kiera and Karis have their primary residence with her and that Mr. Boyer have access two evenings per week and on alternate weekends from September 1 and June 30 and on a week about basis when the children are not attending school.

[49] Mr. Boyer proposes that he and Ms. Henry have joint and shared custody of Kiera and Karis.

[50] Ms. Henry alleges that Mr. Boyer wishes to obtain flex boundary for Karis because it might help him gain shared custody and a more favourable set-off formula for calculating the child support he must pay. If Mr. Boyer is capable of spending equal time with the children in a way that does not interfere with their schooling, his efforts to obtain flex boundary for Karis should be supported. His efforts should not be denigrated by attributing solely self-serving motives to him. A set-off formula for calculating child support is sometimes justified as a means of calibrating the amount of child support to the greater expense faced by a parent with whom the children spend over 40% of their time, and the diminished income earning ability that the parent’s re-deployment of time to the children may entail.

[51] For the reasons that follow, Mr. Boyer’s past involvement in the children’s care, and his stated willingness to assume a greater responsibility for their care in the future, does not persuade me that joint custody is in the children’s best interests at the present time.

[52] Mr. Boyer has sought to exercise a degree of control over decision-making that undermines Ms. Henry’s role as a parent and has a negative impact on the children in the following ways:

(a) He has intercepted letters from teachers and replied to them without Ms. Henry’s knowledge. While each parent is entitled to access to information regarding the children, the parents need to create an arrangement that makes this possible without depriving either of them of such information or effective input into problem solving in relation to the children.

(b) Mr. Boyer has declined Ms. Henry’s offer of extended and continuous access during the summer months. Ms. Henry attributes this to his other commitments, including those to his employment and his rental properties.

(c) I accept Ms. Henry’s evidence that Mr. Boyer questions the children about what they do, where they go, and who they are with when they are in their mother’s care. This practice, which would be exacerbated by a joint custody arrangement, is detrimental to the children. The children must not be placed in “loyalty binds” where they feel that by disclosing information to one parent about the other’s household, they are harming the parent whose private information they are asked to disclose. Apart from its tendency to instill guilt in the children, such questioning implies a lack of confidence in the competence of the other parent, which risks diminishing the children’s respect for that parent, or creating resentment and disrespect toward the parent conducting the inquisition. Whichever parent the children come to disrespect, it is the children who suffer from having their equal and undivided loyalty to both parents compromised.

(d) I accept Ms. Henry’s evidence that Mr. Boyer assigns tasks to the children that he requires them to complete while in Ms. Henry’s care, and makes commitments for the children which he expects Ms. Henry to meet. On one occasion, when Ms. Henry checked Kiera’s soccer schedule and ascertained that she was not listed to play, she accepted work in the film industry because a mother and daughter combination was needed. Mr. Boyer called the team manager and asked that Kiera be placed on the list that day, and then insisted that the children leave their commitment in the film industry to get to the game on time. Such manipulation and control by one parent undermines the other’s ability to manage the children’s care. Each parent must be left to care for the children when they are in his/her care, free from interference by the other.

(e) Mr. Boyer has scheduled track meets on Sundays, the day the children and Ms. Henry attend church. Ms. Henry supports the children participating in athletic activities, which they enjoy, but also wants to expose them to the arts so that they will become well-rounded adults. This is a reasonable objective which must be respected as it is in the children’s best interests.

(f) I accept Ms. Henry’s evidence that Mr. Boyer has given her less than 24 hours’ notice of when he will be unable to care for the children at times when the parties have agreed he would do so. This requires Ms. Henry suddenly to assume care of the children herself or find someone else to do so. This conduct, which joint custody would enable, deprives Ms. Henry of her autonomy, and deprives her and the children of predictability in their lives, at times when the children are supposed to be in Mr. Boyer’s care.

[53] At the time of trial, the parties had been separated, but living under the same roof, for almost seven years, from 2011 to 2018. As they still do not share responsibility for decision-making for the children in a manner that avoids causing each other undue stress, it is wishful thinking to expect that they will do so in the future while exercising joint custody from separate households.

[54] For these reasons, I have concluded that one of the parents must be given ultimate responsibility for decision-making. At the present time, I find that of the two parents, Ms. Henry is most suitable to assume this role.

[55] There is no reason to doubt that Ms. Henry will continue to facilitate Kiera’s and Karis’ relationship with their father. If Mr. Boyer is able to demonstrate greater respect for Ms. Henry’s parenting role, or Ms. Henry demonstrates an inability to consult Mr. Boyer and allow his input into her decision-making, Mr. Henry may apply to the court to review the custody arrangement and consider re-distributing decision-making responsibility between them.

vi. The permanence and stability of the family unit with which it is proposed that Kiera and Karis will live

[56] Kiera and Karis have resided with both parents at 44 Copeland Road in Mississauga since their births. The order made here will separate the parents’ households and provide for a parenting schedule that will apportion the children’s time between the parents.

[57] The children have known one home, and have lived with each other and their older sister and brother and have a close relationship with their siblings. They also have an attachment to the dog, Casper, that lives next door and often take Casper for walks with the neighbor.

[58] There will be permanence and stability in each of Mr. Boyer and Ms. Henry’s family units. That said, Kiera and Karis are more dependent on their mother for their day-to-day care. Ms. Henry has provided stability and continuity for them for the past seven years and is willing to continue doing so. She has been highly involved in Kiera’s and Karis’s upbringing and care.

[59] Mr. Boyer has not been as actively involved in attending Kiera and Karis’s medical and school appointments and has chosen not to assume equal responsibility for their care.

vii. The respective abilities of Mr. Boyer and Ms. Henry to act as a parent

[60] Ms. Henry has raised two other children, one who, at the time of trial, had finished college and was working full time, while the other who was in the second year of nursing school. She asserts, and I find, that over the past five years and more, she has been the primary parent of Kiera and Karis, making most of the major decisions in relation to them with little input from Mr. Boyer.

[61] Ms. Henry asserts that Mr. Boyer never took on full parenting responsibilities. Rather, he limited his care-giving time to give priority to his personal schedule and preferences. She alleges that he is seeking shared custody only to obtain a judgment for “set-off” child support. I do not accept this characterization of Mr. Boyer’s motives. While the prospect of a set-off calculation of child support (which is not mandatory, but discretionary even if the children are with him more than 40% of the time) may offer a financial incentive to Mr. Boyer, I do not accept that this is his only, or even his dominant, motivation. I believe that he has a genuine desire to participate in the parenting of Kiera and Karis, and find that he has established a track record of doing so.

[62] It is not unusual, when the division of labour in a household between a parent who devotes the majority of time to earning a livelihood for the family and a parent who devotes the majority of time to household responsibilities is disrupted by the end of their conjugal relationship, for the parent who has been focusing primarily on earning a livelihood to become more engaged in parenting. Up to the time of the parties’ separation, such a parent may, having regard to the reciprocal relationship between the parties, rely on the other parent to keep him informed of their activities and be his spokesperson and advocate in the children’s lives, thereby maintaining a strong bond between the children and relatively less present parent, but once the parties’ understanding in that regard is eroded, the less present parent may become more directly engaged with the children and assume greater direct responsibility for them.

[63] The foregoing change of pattern can be financially motivated but it is a mistake to stereotype the greater involvement of the “breadwinner” in this way. It is not in the best interests of the children to do so, because it can contribute to the marginalizing of one of the parents in the children’s lives and undermines what should be the effort to strengthen the post-separation relationship between the children and each of the parents.

[64] This stereotyping can over-simplify the relationships in a family in the same way that stereo-typing the parent who has, during co-habitation, focused primarily on household and child-rearing responsibilities. Characterizing that parent as a “greedy bitch” or “free-loader” who seeks to capitalize on her relationship with the children as a means of avoiding financial self-sufficiency and forcing the breadwinner to provide an indefinite pension to the householder, even when the children’s growing independence should free the householder to return to the workplace has an equal capacity to distort the reality of the parents genuine efforts to balance their energies between competing values, both in the children’s interests.

[65] Such stereotyping, in both cases, is likely to diminish the children’s respect for one parent or the other and, in either case, can undermine the children’s ability to maintain their own self-esteem by regarding both parents as positive role models. Family law litigants and the court must be mindful of the well-documented challenges that children of separating parents face in life, including higher statistical risks of marriage breakdown, academic failure, physical and mental health problems, including depression, alcohol and drug dependency in later life, and problems with the law. Those greater statistical risks are disturbing for those coping with major changes in family relationships. Those helping parents to navigate those changes must strive to connect the dots between how the changes are managed and the impact that the approach taken can have on the children’s outcomes. Not all children of parents who separate or divorce have negative outcomes. Barack Obama’s parents separated when he was young, and he and his parents managed the changes in their family in a way that fostered his resilience, preserved his self-esteem, and maintained his ability to form secure-attachment relationships, and supported each other’s desire to contribute to their child’s up-bringing and future.

[66] The literature suggests that a key factor that contributes to a successful outcome for children in such situations is the ability and willingness of each parent to communicate to the child a positive perception of the other, and to strengthen the child’s relationship with the other parent. This approach is the one most likely to ensure that, at the critical point when the child faces the transition from high school to college, university, or a career, he or she will have the whole-hearted support, emotionally and financially, of each parent. It is also the approach that will best ensure that the parents will not squander their finite economic resources on legal costs and thereby undermine their ability to share those resources with their children in the future, when it is critical to the children’s success that they do so. It is also the approach that is most likely to avoid the parents having to re-engage with the legal process in the future to resolve issues of financial contributions to post-secondary expenses at the very time when their children need their support and the freedom to focus on their academic or occupational pursuits.

[67] Based on the evidence before me, I find that both parents are capable of, and motivated to be, engaged parents and financially self-sufficient. Indeed, each party’s own evidence belies their tendency to cast aspersions on each other’s motivations.

vi. Conclusion

[68] I find that Kiera and Karis are likely to continue to thrive in Ms. Henry’s primary care. It is in Kiera and Karis’s best interest to have their principal residence with Ms. Henry and to be in her primary care. It is also in their interest that they continue to have liberal access to their father.

[69] Kiera was in Grade 4 at time of trial. Her grades are good and her day begins at 8:00 a.m. At the time of trial, Mr. Boyer drove her 15 minutes to her school. As of February 8, 2018, she had been absent once and late once. Karis was in Grade 1 at the time of trial. Her grades are good and her school day began at 8:40 a.m. At the time of trial, Ms. Henry drove Karis 15 minutes to her school bus stop. As of February 8, 2018, she had been absent once and never late.

[70] Ms. Henry had previously driven both Kiera and Karis to school because Karis did not have a pre-school program. At the time of trial, she did have such a program, which began at 7:30 a.m., which is why Ms. Henry now drove her to her school bus stop. Ms. Henry tendered as evidence multiple bus notifications about the late bus at Karis’ bus stop. They showed that the bus is often 15 or 20 minutes late.

[71] Ms. Henry is employed as a technical support specialist with the Peel District School Board. Her hours are flexible and she has driven both children to their schools for the past few years.

[72] If Mr. Boyer lives no further from the children’s school than he does now, and he drives both children to school, he will need to leave home by 7:40 a.m. to drive the 15 minutes to Kiera’s school in time for Kiera to begin by 8:00 a.m., then drive the 8 minutes to Karis’ school to arrive there by 8:15 a.m., approximately 25 minutes before Karis begins her classes at 8:40 a.m., and then drive the 45 minutes from Karis’ school to John Fraser Secondary School, where he works, and where classes begin at 8:25 a.m.

[73] Ms. Henry did not know, logistically, how he planned to do the drive if he drove both children. The best solution would appear to be for him to drive Karis to Ms. Henry’s home by 7:30 a.m., continue driving Kiera the 5 minutes to her school, Ridgeway Public School, by 7:45 a.m., 15 minutes before Kiera’s classes begin at 8:00 a.m., and then drive the approximately 20 minutes to John Fraser Secondary School, where he works, and where classes begin at 8:25 a.m.

[74] This arrangement will require Mr. Boyer to begin his drive by however long it takes him to get from his new home to Ms. Henry’s home at 44 Copeland Road by 7:30 a.m. He has control over where he will move when he relocates, so this should not present him with an insurmountable challenge. If he moves to one of his own properties, at 4144 Chadburn Crescent or 4094 Woodington Drive, it will take him approximately 25 minutes to make the drive, which would require him to leave by 7:05 a.m.

[75] The arrangement will require Ms. Henry to continue driving Karis to her school. Assuming Mr. Boyer drops Karis at her home by 7:30 a.m., she will have an hour before she will need to leave to make the 5-minute drive to Karis’ school in time to get her there to begin classes by 8:40 a.m. This will have the additional advantage of giving Karis an hour in the morning with her mother before beginning school.

[76] The parties need to establish separate households for the children and the court must assign parenting time to each of them to the extent that they have demonstrated, by actions, and not solely by words, a willingness to assume care for the children. To this end, the Court will direct that Kiera and Karis be in Mr. Boyer’s care during the school year every Tuesday and Thursday from the end of school, when he will pick them up from school, to the beginning of the following day, when he will deliver them to their respective schools. The children will also be in Mr. Boyer’s care on alternate weekends, from the end of school on Friday to the beginning of school on Monday.

[77] During the summer months, the children will be in each parents’ care on a week about basis, from Monday morning to Sunday night on alternating weeks. Mr. Boyer and Ms. Henry will split parenting time on holidays and special occasions.

[78] The parenting schedule outlined above will result in the children spending between 35 and 40% of their time with Mr. Boyer. This is consistent with the guidelines suggested by the Court of Appeal in B.V. v. P.V., (2012), where the Court concluded that, in the absence of compelling evidence that harm to the child would result from doing so, at least 35% of the children’s time should be spent with the parent with whom they do not have their principal residence.[^2]

c) What child support is Ms. Henry entitled to?

[79] Ms. Henry claims ongoing and retroactive child support for one child beginning September 25, 2008, when Kiera was born, and for two children from August 22, 2011, when Karis was born, in the table amount, based on an income which she asks the court to impute to Mr. Boyer in the amount of his employment income and his net rental income.

Legislative Framework

[80] The Family Law Act contains the following provisions regarding a parent's obligation to support a child of the marriage:

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

[81] In determining what amount of child support is appropriate in the present case, I have considered s. 3 of the Federal Child Support Guidelines, SOR/97-175 which states:

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.[^3]

[82] Child support may be ordered retroactively to cover at least the period of time from when the parties separated and the applicant notified the payor spouse of her intention to claim such support.

Legislative Framework

[83] In D.B.S. v. S.R.G., (2006), the Supreme Court of Canada comprehensively addressed how the court should determine claims for “retroactive child support.”[^4] Bastarache J. began his majority reasons by pointing out that the word “retroactive” in relation to child support is a misnomer, because such support sought is only retroactive in the sense that it had not been ordered to be paid during the relevant period, even though it was owed in accordance with the Guidelines. Before discussing the factors a court was to consider prior to ordering retroactive child support, he stressed that such awards should not be seen as exceptional. He stated:

It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability [for the payor parent], but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.[^5]

[Emphasis added.]

[84] Bastarache J. identified four factors that the court should consider when determining whether to order a retroactive award:

(1) unreasonable delay by the recipient parent in applying for the support;

(2) conduct of the payor spouse;

(3) circumstances of the child; and

(4) hardship occasioned by the retroactive award.

[85] Bastarache J further indicated that none of these factors is decisive, and that “a court should strive for a holistic view of the matter and decide each case based on its particular factual matrix”.[^6]

[86] Bastarache J. stated the following regarding the hardship that retroactive support orders may cause:

I agree with Paperny, J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimized hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.[^7]

[Emphasis added]

[87] Bastarache J. concluded:

The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.[^8]

[Emphasis added]

Applying the legal principles to the facts of the present case

The period for which child support is payable

[88] Ms. Henry claims ongoing and retroactive child support from the date when Kiera was born in 2008, in the table amount, with income imputed to Mr. Boyer to include rental income, or the rental value, based on his not using the rental units to their full potential.

[89] I have found that the parties separated between March and December 2013. In 1981, Kirkland J. held that child support may be claimed for the period before the parties lived separate and apart, stating:

I have little difficulty in dealing with the first question. Under The Deserted Wives’ and Children’s Maintenance Act, R.S.O. 1970, c. 128, a reconciliation terminated the outstanding order between the parties. See Re Wiley and Wiley (1919), 46 O.L.R. 176, 49 D.L.R. 643, 32 C.C.C. 231, [1919] O.J. No. 28 (Ont. H.C.). This is not the case under the Family Law Reform Act, R.S.O. 1980, c. 152. Section 16 provides that every parent is obliged to support his child and section 18 empowers a court to make a support order. Absent from the statute or the case law is a requirement that the parent and child be living apart. Accordingly, if a court can make a support order while the parties reside together, an existing order under these conditions can be sustained.[^9]

[Emphasis added]

[90] The Court’s power to order a spouse to pay child support derives from the Family Law Act, which provides:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

Order for support

33 (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

Applicants

(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent.

Application of child support guidelines

(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines. 1997, c. 20, s. 3 (4).

[91] The Ontario Child Support Guidelines provides:

The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;[^10]

[92] In Vidal v. Dunn, (2018), Robertson J. stated:

[14] The authority to order further child support is found in legislation. The Child Support Guidelines were intended to help separated families set child support in a fair and predictable way.[^11]

[Emphasis added]

[93] In Bukasa v Nyembwe, (2016), Van Melle J., in the context of an application for and order requiring a spouse to contribute to the payment of children’s s. 7 expenses stated:

Justice Tzimas gave Ms. Bukasa permission to amend her pleadings to claim s. 7 expenses and allowed her to provide further information to the court to delineate those expenses. A review of her documentation in support shows that many of the claimed s. 7 expenses pre-date the date of separation. The right to be paid child support and a contribution to section 7 expenses arises upon separation and not prior to separation. I pointed this out to Mr. Wafo and his response was simply that the expense had been incurred by Ms. Bukasa. However, the support provisions of the Family Law Act and the Divorce Act do not come into effect until the parties have separated. It follows then that one cannot claim a contribution to section 7 expenses that are attributable to a time period prior to separation.[^12]

[Emphasis added]

[94] There is not unanimity in the courts’ decisions as to whether child support or spousal support is payable in reference to a period after the spouses have separated but while they continued living under the same roof. The decisions appear to have turned, in large part, on the facts of the case, and whether the court found that the payor spouse had paid, or the recipient spouse had received, amounts in lieu of child support or spousal support during the period for which claims were being advanced. Aston J., in Moore v. Fernandes, (2001), stated that the Guidelines establish support for those living apart and presume that the spouse will maintain the child’s standard of living while sharing accommodation.[^13] This decision was disapproved of by Prof. Jay McLeod. in “This Week in Family Law.”[^14]

[95] Justice Ehrcke of the B.C. Supreme Court, in S. (N.T.) v. B. (K.J.), (2007), denied a wife’s request for interim child support on the basis that the separated husband was paying all expenses in the home they continued to live in.[^15] The woman had requested an interim order to allow her to move out of the home but Ehrcke J. rejected her argument, concluding that she had sufficient income to do so on her own.

[96] In Karajian v. Karajian, (2012), Eberhard J. said of a father who had been living under the same roof as his separated wife and their children, “All that can be said is that he did make many payments which chiefly served to maintain the premises but much less than was required to meet the daily needs of the wife and children.”[^16] The husband had been ordered to pay $550/month of spousal support, but no child support. He had not paid the support for 29 months. Justice Eberhard noted the difficulty in calculating what the husband had paid, but estimated that if he had paid half the amount mandated by spousal support and child support guidelines, he would have to have been paying double the spousal support amount. Justice Eberhard did not set out a detailed calculation, but affixed retroactive spousal support at $10,000, approximately $5,000 less than 29 months x $550.

[97] In Mohammed v. Mohammed, (2013), Lemon J. granted an uncontested motion for child support where both parties were still living under the same roof.[^17]

[98] Justice Wilson of the Alberta Queen’s Bench, in Henderson-Jorgensen v. Henderson-Jorgensen, (2013), denied an ex-wife’s request for retroactive child support while the parties were still cohabitating, finding that she had drawn on the joint accounts.[^18]

[99] In the present case, I am satisfied that there is sufficient evidence to permit the court to calculate the amounts of support that was payable by Mr. Boyer and the amounts he paid. It is therefore appropriate to calculate the retroactive awards of child support and s. 7 expenses payable by Mr. Boyer and the credits he is entitled to for the amount he paid.

The amount of child support

Mr. Boyer’s income

[100] Mr. Boyer filed a Financial Statement sworn March 21, 2017, in which he states that his current income is $95,583.84. He states that he earned an identical amount the previous year, and that his annual expenses were $92,975.52. Mr. Boyer produced his Statement of Deposit, Earnings and Deductions from his employer, the Peel District School Board for February 17, 2017, which indicates that his annual salary at that time was $95,588.00.

[101] In his Financial Statement, Mr. Boyer acknowledges owning the following real estate:

• 50% of 44 Copeland Road, Brampton, the other 50% being owned by Ms. Henry, which he values at $700,000, subject to a BMO Home Equity Line of Credit in the amount of $174,878.07;

• 1% of 4088 Woodington Drive, Mississauga, of which he says his father, Barrington Boyer, owned the remaining 99%, which he values at $700,000, subject to a mortgage which has not been disclosed;

• 50% of 4094 Woodington Drive, Mississauga, of which he says his father owned the other 50%, the value of which was $700,000, subject to a mortgage of $467,873.10 and a Home Equity Line of Credit in the amount of $143,917.64;

• 100% of 4144 Chadburn Crescent, Mississauga.

[102] Mr. Boyer produced copies of his income tax returns, produced pursuant to the Order of Trimble J. However, as Ms. Henry points out, the returns disclose only the income Mr. Boyer received from the upper portion of 4144 Chadburn Crescent, Mississauga, not the amount he received from the basement apartment.

[103] Mr. Boyer filed his Notices of Assessment for 2013 to 2015, which disclose the following Line 150 Income:

• 2013 $97,877.00, consisting of:

• $94,296 earnings (T4); and

• $3,581 net rental income.

• 2014 $97,025.00, consisting of:

• 94,784.00 earnings (T4); and

• $2,231.00 net rental income ($11,169.00 gross)

• 2015 $89,167.00, consisting of:

• $87,306 earnings (T4); and

• $1,861 net rental income ($12,000.00 gross)

[104] Ms. Henry testified as to the additional income Mr. Boyer received in the above-mentioned years from his rental properties, but did not report to Canada Revenue Agency. She asks the court to impute amounts set out in a spread sheet that she tendered in evidence. She arrived at the amounts to be imputed for 2008 to 2018 by adding Mr. Boyer’s declared income from his Notices of Assessment and the additional, undeclared, income by inference from the fact that he was, to her knowledge, receiving $850 per month from tenants of the basement apartment at 4144 Chadburn Crescent, Mississauga.

[105] For the following reasons, I find that Mr. Boyer earned an additional $850.00 per month during the period from January 2014 to the present, for which child support is payable by him:

(a) Ms. Henry stated that Mr. Boyer leased the basement apartment on Chadburn Crescent to a couple named Manamie and Mathew, who were there in 2008, when she and Mr. Boyer started dating, and who were still there in 2008, when Kiera was born, and for 1 or 2 years after that. They were followed by a Mr. Roffey, who was a tenant for about a year. He was followed by a lady with a child, who were tenants for about 2 years.

(b) Ms. Henry acknowledged that she does not know the exact dates when each of the tenants occupied the basement apartment. She observed Manamie’s car in the driveway, and received mail addressed to Matthew and Manamie. Mr. Boyer picked up their mail and left it on a table at the Copeland Road property, where Ms. Henry saw it.

(c) When Mr. Boyer advertised the basement apartment for rent, Ms. Henry printed the ad, which indicates that the tenant of the upper portion is to pay $1,900 per month, and is responsible for 70% of utilities.

(d) Ms. Henry’s email to Mr. Boyer dated April 16, 2010, regarding his Ad on the online Kijiji service, refers to a rental of $850 for the “self-contained one bedroom basement apartment”, available May 1. In an email to “Lise” dated May 9, 2010, in response to an inquiry about the apartment earlier the same evening, for someone wishing to rent an apartment on a month to month basis beginning May 16, with a re-line. “$850 Self-contained one bedroom basement apartment available in Erin Mills”, Ms. Henry writes, “Please call Darren [Boyer] to make an appointment to discuss further and view the unit, he is open to the idea. 647-221-8686”. Ms. Henry stated that the unit was rented until October or November 2017.

(e) Mr. Boyer’s emails to Ms. Henry dated July 4, 2011, regarding his ad for the basement apartment, “minutes away from the 403 and Winston Churchill”, also refers to a rental amount of $850 per month, in the case of the Toronto Star, and of $875 per month, “negotiable”, in the case of the Mississauga News.[^19]

(f) Ms. Henry testified that when the basement apartment at 4144 Chadburn Crescent became vacant in November 2017, Mr. Boyer removed a number of the belongings from the basement of their property at 44 Copeland Road, including a heater, iron, etc., which she later learned from Kiera had been transferred to the basement apartment at 4144 Chadburn Crescent, to furnish the apartment for Mr. Boyer’s mother, who made a temporary visit in December.

[106] I accept Ms. Henry’s testimony regarding the income Mr. Boyer received from the basement unit at 4144 Chadburn Crescent. Although Mr. Boyer did not admit that there was a basement rental apartment, he did not dispute to any meaningful extent the facts upon which Ms. Henry asks the Court to draw an inference.

[107] I find that Mr. Boyer’s income consisted of his reported (Line 150) income plus the $850.00 per month rental income derived from the basement apartment at 4144 Chadburn Crescent, grossed up by 13%. I have not deducted expenses, as I find that Mr. Boyer likely already deducted all of his eligible expenses from the income he reported. For those years for which Mr. Boyer has not provided income tax information, I have imputed to him reported income in the amount of $95,000.00.

[108] Ms. Henry asks the court to add the rent Mr. Boyer received from the basement tenants because he had those tenants from 2008 to 2011, and he moved to her residence at 44 Copeland Road in Mississauga in 2011. Ms. Henry states that she sent Mr. Boyer requests for Guidelines support in emails in which she calculated the amounts he should pay. She asks the court to add $9,600.00 of undeclared income, grossed up by his marginal tax rate of 13%, for a total of $13,152.00 per year. Added to his declared income of $95,000, she calculates a total income of $108,152.00 for child support purposes.

[109] Ms. Henry tendered a list of each party’s income and support payments, and the Guidelines support amounts payable for each year, based on the parties’ respective income.[^20] For Mr. Boyer, she includes both his declared income from employment and from the rental income he received from the upstairs apartments at 4144 Chadburn Crescent, Mississauga, and the undeclared income he received from the basement apartment. She states that Mr. Boyer rented the basement unit until 2017, when the trial was imminent, and then ceased, she says, in order to avoid having income imputed.

[110] On this analysis, I find that after the parties separated in 2015, Mr. Boyer earned the following income for support purposes:

Year Employment Unreported income Total

($850 x 12 = $10,200,

Income grossed up by 13%)

• 2013: $97,877.00 $11,200.00 $109,077.00

• 2014: $97,025.00 $11,200.00 $108,225.00

• 2015: $89,167.00 $11,200.00 $100,367.00

• 2016: $96,064.61 $11,200.00 $107,264.61

($95,583.82

Less $1,380.21

Union dues, plus

$1,861 net rental

as in in 2015)

• 2017 $95,000.00 $11,200.00 $106,526.00

• 2018 $95,000.00 $11,200.00 $106,526.00

[111] Based on the foregoing imputed income, Mr. Boyer owes table child support of $89,907.11 for Kiera and Karis from the parties’ separation at the end of 2013 to December 1, 2018, calculated as follows, based on the Table rates prevailing before and after the change in November 2017:

Year Imputed income Child support TOTAL

• 2014: $108,225.00 $1,516.59 x 12 mos $18,199.08

• 2015: $100,367.00 $1,420.48 x 12 mos $17,045.76

• 2016: $107,264.61 $1,504.33 x 12 mos $18,051.96

• 2017 $106,526.00 $1,495.21 x 11 mos $16,447.31

$1,551.00 x 1 mos $1,551.00

• 2018 $106,526.00 $1,551.00 x 12 mos $18,612.00

The amounts Mr. Boyer paid

[112] From August 2011, when Karis was born, Mr. Boyer began contributing $1,700.00 to $2,300.00 per month. He wrote “support” on the cheques. He began writing “child support and household expenses” in March 2017, after Ms. Henry issued her application. On August 1, 2017, he unilaterally reduced his support to $1,760.00 per month, and on September 1, 2017, he further reduced the support to $1,514.00 per month.

[113] As appears from Mr. Boyer’s bank statements, he paid the following amounts to Ms. Henry:

2014 and 2015:

Date Amt Paid Date Amt Paid

Jan. 8, 2014 $2,300.00 Jan. 5, 2015 $2,900.00

Jan. 31, 2014 $2,300.00 Feb. 4, 2015 $2,200.00

Mar. 5, 2014 $2,300.00 Feb. 19, 2015 $1,000.00

Apr. 17, 2014 $63.82 Mar 5, 2015 $2,800.00

April 23, 2014 $2,400.00 Apr. 6, 2015 $2,100.00

May 5, 2014 $2,000.00 May 5, 2015 $2,150.00

June 4, 2014 $2,000.00 Jun 5, 2015 $2,150.00

July 4, 2014 $2,000.00 Jul 2, 2015 $2,150.00

Aug. 5, 2014 $2,000.00 Aug 10, 2015 $2,300.00

Sept. 4, 2014 $2,150.00 Sept. 9, 2015 $2,200.00

Oct. 8, 2014 $2,000.00 Oct. 2, 2018 $2,200.00

Nov. 3, 2014 $2,130.00 Nov. 9, 2015 $2,300.00

Dec. 4, 2014 $2,000.00 Dec. 3, 2015 $2,300.00

2016-2017

Date Amt Paid Date Amt Paid

Jan. 5, 2016 $2,300.00 Jan. 3, 2017 $2,300.00

Feb 8, 2016 $2,300.00 Jan. 30, 2017 $500.00

Mar. 2, 2016 $316.03 Feb. 3, 2017 $2,300.00

Mar. 7, 2016 $2,300.00 Mar 2, 2017 $2,300.00

April 5, 2016 $2,300.00 Apr. 4, 2017 $2,300.00

May 5, 2016 $2,300.00 Apr 28, 2017 $400.00

May 27, 2016 $1,000.00 May 2, 2017 $2,300.00

Jun. 6, 2016 $2,250.00 May 29, 2017 $10.00

Jun. 20, 2016 $350.00 June 5, 2017 $2,300.00

July 6, 2016 $2,300.00 Jul. 10, 2017 $2,325.00

Aug. 4, 2016 $2,300.00 Aug. 8, 2017 $1,760.96

Aug. 16, 2016 $60.00 Sept. 8, 2017 $1,514.48

Sept. 8, 2016 $2,300.00 Oct. 11, 2017 $247.60

Oct. 4, 2016 $2,300.00 Oct. 16, 2017 $1,514.48

Oct. 12, 2016 $100.00 Nov. 3, 2017 $1,514.48

Nov. 4, 2016 $2,300.08 Dec. 6, 2017 $1,514.48

Dec. 2, 2015 $2,300.00 Dec. 20, 2017 $1,260.05

2018

Jan. 5, 2018 $1,834.48

[114] Based on the foregoing, Mr. Boyer will be credited with the following payments of child support:

2014: $25,643.82

2015: $28,750.00

2016: $29,376.11

2017: $26,361.53

2018 $ 1,834.48

TOTAL: $111,965.94

[115] In addition, Mr. Boyer will be credited with such payments as he made since January 5, 2018. Based on his obligation to pay $89,907.11 from 2014 to 2018, inclusive, he has paid an excess of $22,058.83 plus any support paid since January 5, 2018. This excess shall be credited to his obligation to contribute to the payment of the children’s s. 7 expenses in proportion to his income.

d) Ongoing and retroactive s. 7 expenses

[116] Ms. Henry tendered emails regarding the child support and contributions to the children’s expenses she has requested. She states that she paid the majority (she estimates 98%) of s. 7 expenses, notwithstanding Mr. Boyer’s responsibility to contribute a proportionate share to such expenses.

Legislative framework

[117] The contribution that parents are required to make to their children's education costs is governed by s. 7 of the Guidelines:

(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(a) Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) That portion of the medical and dental insurance premiums attributable to the child;

(c) Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) Expenses for post-secondary education; and

(f) Extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.[^21]

[Emphasis added]

[118] The well-established test for whether an expense is extraordinary is whether it is "reasonable and necessary", having regard to the parents' individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties' historic spending patterns.

[119] Once having determined that an expense is extraordinary, having regard to the parties' joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, the court must, pursuant to s. 7, apportion responsibility for the expense in proportion to the parties' incomes.

Jurisprudence

[120] In Titova v. Titov, (2012), the Court of Appeal for Ontario set out the procedure courts must apply when determining whether to award special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, as follows:[^22]

Calculate each party’s income for child support purposes
Determine whether the claimed expenses fall within one of the enumerated categories of s. 7
Determine whether the claimed expenses are necessary “in relation to the child’s best interests”
Determine whether the claimed expenses are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”
If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.
Consider what amount, if any, the child should reasonably contribute to the payment of these expenses
Apply any tax deductions or credits.[^23]

[Emphasis added.]

[121] Having completed this exercise, the court must then determine how the balance of the expenses should be apportioned between the parties.[^24]

Factors Relevant to “Reasonableness”

[122] In Terry v. Moyo, (2013), Justice O`Connell of the Ontario Court of Justice adopted six factors relevant to determining the reasonableness of a s.7 expense, as enunciated by the Manitoba Court of Appeal in 2002. They include:

The combined income of the parties;
The fact that two households must be maintained;
The extent of the expense in relation to the parties' combined level of income;
The debt position of the parties;
Any prospects for a decline or increase in the parties' means in the near future; and
Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.[^25]

[123] The test set out in section 7(1.1) of the Guidelines takes account of the spouse’s income and the amount of child support to be received. In MacNeil v. MacNeil, in 2013, Gauthier J. succinctly sets out the jurisprudence interpreting “extraordinary”:

The real issue is whether the expenses are “extraordinary.”

The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:

It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.

This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts.” (para 13).

[Emphasis added]

“Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, [1998] M.J. No. 196, 159 D.L.R. (4th) 665:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.[^26]

[Emphasis added.]

[124] In Bordin v. Bordin, (2015), Horkins J. stated the considerations as follows:

An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course (see Celotti v Celotti, [2007] O.J. No. 2538 (S.C.); Park v Thompson, [2005] O.J. No. 1695 (C.A.)).[^27]

[125] In Boisvert v. Boisvert, (2007), Whitten J. noted at para. 48:

Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.[^28] [Emphasis added.]

Applying the legal principles to the facts of this case

[126] Ms. Henry claims contribution to s. 7 from October 2009 when she first asked Mr. Boyer to contribute to the children’s special and extraordinary expenses. As noted above, Ms. Henry is entitled to payment of child support, including contribution to the payment of s. 7 expenses, only during the period of separation, which I find began in December 2013.

[127] I accept the following evidence tendered by Ms. Henry to document the special and extraordinary expenses she incurred for Kiera and Karis, and I find the expenses to have been reasonable and necessary within the meaning of the s. 7 requirements and properly claimed as such.

January to December 2014

[128] Ms. Henry tendered in evidence records issued to her by Family Day, a family day care service provider and member of United Way, as follows:

• Detailed Customer Statement for charges and payments in the amount of $871.70 for Karis for January 1 to 31, 2014. This amount appears to duplicate one of the payments included in the Income Tax Receipt for 2014, below.

• Income Tax Receipt for 2014: for $7,795.90 for day care for Karis Boyer for January to June 2014 and for September to December 2014, paid by direct deposit to the firm’s account. The payment for January 2014, was for $871.70, which appears to be one of the same payments listed in the Customer Statement issued by the same provider. Total: $7,795.90

[129] Ms. Henry tendered two receipts from J. Renaud, dated January 8, 2014, and March 4, 2014, for $440.00 each, for day care fees for Kiera, and a copy of a processed cheques dated February 1, 2014, March 1, 2014, and April 1, 2014, also for $440.00 each, to 960444 Ontario Inc. for Day Care. Total: $2,200.00

[130] Ms. Henry tendered a Receipt for Income Tax Purposes issued by P.L.A.S.P. for the period January to December 2014, in the amount of $1,894.99 for Child Care Services, as well as her monthly bank statements from President’s Choice Financial, which record the individual payments to P.L.A.S.P., as well as to Family Day. Total: $1,894.99

[131] Ms. Henry tendered the following receipts from the City of Brampton for sports activities for Kiera and Karis:

• Gymnastics for Karis Spring (Feb) 2014: $134.50

• Skating for Kiera Spring (Feb) 2014 (Returned)

• Gymnastics for Kiera (Mar.) 2014: $107.65

• Skating for Kiera Spring (Apr) 2014: $48.60

• Camp for Kiera Summer (June) 2014: $316.00

• Acrobatics for Kiera Fall (Aug) 2014: $171.30

• Dance Costume – Primary: $34.00

• Skating – for Karis Fall (Aug) 2014: $75.10

• Skating – for Kiera Fall (Aug.) 2014: $75.10

• Swim for Kiera Fall (Aug.) 2014: $80.05

• Swim for Karis Fall (Aug.) 2014: $80.05

• Soccer for Kiera Fall (Aug.) 2014: $81.90

• Skating – for Kiera Fall (Sept) 2014: $75.10

• Skating – for Karis Fall (Sept.) 2014: $75.10

• Soccer for Kiera Winter (Nov.) 2014: $56.70

• Skating for Kiera Winter (Nov) 2014: $60.75

• Skating for Kiera Winter (Jan.) 2014: $79.00

TOTAL: $1,550.90

January to December 2015

[132] Ms. Henry tendered in evidence records issued to her by Family Day, a family day care service provider and member of United Way, as follows:

• Income Tax Receipt for 2014: for $4,329.30 for day care for Karis Boyer for January to July 2015, paid by direct deposit to the firm’s account. Total: $4,329.30

[133] Ms. Henry tendered a Receipt for Income Tax Purposes issued by P.L.A.S.P. for the period January to December 2015, in the amount of $4,219.20 for Child Care Services, as well as her monthly bank statements from President’s Choice Financial, which record the individual payments to P.L.A.S.P., as well as to Family Day. Total: $4,219.20

[134] Ms. Henry tendered the following receipts from the City of Brampton for sports activities for Kiera and Karis:

• Soccer for Kiera (Feb) Spring 2015: $63.95

• Soccer for Karis (Feb) Spring 2015: $75.60

• March Break camp for Kiera (Feb) Spring 2015: $185.75

• Skating for Kiera (Mar) Spring 2015: $68.85

• Skating for Karis (Mar) Spring 2015: $68.85

• Gymnastics for Kiera Summer (June) 2015: $110.35

• Camp for Kiera and Karis Summer (July) 2015: $292.00

• Dance for Karis School (Aug) 2015: $164.20

• Costume: $34.85

• Acrobatics for Kiera School (Aug) 2015: $233.70

• Costume: $59.45

• Gymnastics for Karis (Jul) Summer 2015: $292.00

• Gymnastics for Karis (Aug) Fall 2015: $292.00

• Skating for Karis (Aug) Fall 2015: $83.33

• Skating for Kiera (Aug) Fall 2015: $83.33

• Soccer for Kiera (Sept.) Fall 2015: $35.82

• Skating for Karis (Jan) Winter 2015: $50.04

• Soccer for Kiera (Nov) Winter 2015: $58.20

• Skating for Kiera (Nov) Winter 2015: $62.55

• Skating for Karis (Nov) Winter 2015: $79.23

• Skating for Karis 3:45 to 4:15 (Dec) Winter 2015: $62.55

• Skating for Karis 4:15 to 4:45 (Dec) Winter 2015: $62.55

• Skating for Karis 4:45 to 5:15 (Dec) Winter 2015: $62.55

TOTAL: $2536.70

January to December 2016

[135] Ms. Henry tendered a Receipt for Income Tax Purposes issued by P.L.A.S.P. for the period January to December 2016, in the amount of $6,699.44 for Child Care Services, as well as her monthly bank statements from President’s Choice Financial, which record the individual payments to P.L.A.S.P., as well as to Family Day. Total: $6,699.44

[136] Ms. Henry tendered a Receipt for Income Tax Purposes issued by the Bramalea Baptist Church for Summer Day Camps for Kiera and Karis from July 4 to 29, 2016, each in the amount of $200.00. Total: $400.00

[137] Ms. Henry tendered Official Tax Receipt issued by the YMCA for Karis and Kiera for a fitness program from December 27, 2014 to November 24, 2016, in the amount of $188.00 each. Total: $376.00

[138] Ms. Henry tendered the following receipts from the City of Brampton for sports activities for Kiera and Karis:

• Skating for Karis (Feb) Spring 2016: $83.33

• Soccer for Karis (Feb) Spring 2016: $71.64

• Gymnastics for Karis (Feb) Spring 2016: $147.03

• Gymnastics for Kiera (Feb) Spring 2016: $221.00

• Skating for Karis (Jun) Summer 2016: $57.69

• Gymnastics Camp for Kiera (Jul) Summer 2016: $99.24

• Gymnastics Camp for Karis (Jul) Summer 2016: $99.24

• Gymnastics for Kiera (Aug) Fall 2016: $225.42

• Gymnastics for Karis (Aug) Fall 2016: $149.89

• Skating for Karis (Aug) Fall 2016: $71.94

• Acrobatics for Karis (Aug) School 2016: $219.00

• Dance Costume: $34.85

• Acrobatics for Kiera (Aug) School 2016: $238.50

• Dance Costume: $59.45

• Gymnastics for Karis (Aug) Winter 2016: $113.10

• Gymnastics for Kiera (Aug) Winter 2016: $170.00

• Soccer for Karis (Sept) Winter 2016: $59.70

• Soccer for Kiera (Sept) Winter 2016: $59.70

• Skating for Karis (Dec) Winter 2016): $93.43

• Skating for Karis (Dec) Winter 2016: $64.10

TOTAL: $2,338.25

January to December 2017

[139] Ms. Henry tendered a Receipt for Income Tax Purposes issued by P.L.A.S.P. for the period January to December 2017, in the amount of $7,417.24 for Child Care Services, as well as her monthly bank statements from President’s Choice Financial, which record the individual payments to P.L.A.S.P., as well as to Family Day. Total: $7,417.24

[140] Ms. Henry tendered a copy of her processed cheques dated Sept. 15, 2017, and November 1, 2017, to Jade Hip Hop Academy for Kiera’s and Karis’ dance, in the amount of $185.00 each. Total: $370.00

[141] Ms. Henry tendered the following receipts from the City of Brampton for sports activities for Kiera and Karis:

• Skating for Karis (Jan) Winter 2017: $143.04

• Swimming for Kiera (Feb) Spring 2017: $230.56

• Swimming for Karis (Feb) Spring 2017: $230.56

• Gymnastics for Karis (Mar) Spring 2017: $138.36

• Swimming for Karis (Aug) Fall 2017: $251.05

• Gymnastics for Karis (Aug) Fall 2017: $229.97

• Gymnastics for Kiera (Aug) Fall 2017: $229.97

• Gymnastics for Karis (Oct) Winter 2017: $103.77

TOTAL: $1,557.18

[142] Based on the foregoing, the total s. 7 expenses that Ms. Henry incurred for the children from 2014 to 2017, inclusive, was as follows:

• 2014: $13,441.79

• 2015: $11,085.20

• 2016: $9,813.69

• 2017: $9,344.42

What amounts did Mr. Boyer pay for the children’s s. 7 expenses?

[143] Mr. Boyer offered to give Ms. Henry a cheque for $481.03, which he calculated to be one half of the expenses she had submitted to him, principally for private swimming lessons for the children. He offered her a cheque with a letter for her to sign saying she would give up any claim for any further s. 7 expenses for that year. She returned the cheque to him.

[144] Based on the foregoing, I find that Mr. Boyer contributed a minimal amount to the children’s s. 7 expenses.

[145] In Ms. Henry’s Financial Statement sworn January 17, 2018, she states that her income is $76,854.00 and that her income the previous year was $69,380.00. She lists her expenses as $106,176.60. Her listed debts, apart from the mortgage on 44 Copeland Road, which has declined in amount, has also declined from $4,100.00 when the parties separated to $3,160.00 at the time she swore her Financial Statement. It appears that she may not have included the payments she received from Mr. Boyer in her income, as she characterized almost all her monthly income to employment earnings.

[146] Ms. Henry has produced her Notices of Assessment for the years 2014 to 2016. They disclose the following Line 150 income in those years:

• 2014: $64,335.00

• 2015: $66,008.00

• 2016: $69,380.00

[147] Ms. Henry has produced her Statement of Deposits, Earnings and Deductions from the Peel District School Board for January 19, 2018, which discloses that her annual salary was then $64,707.00.

[148] Based on the foregoing, I calculate Mr. Boyer’s income to represent the following percentages of the parties’ collective income:

Mr. Boyer’s Ms. Henry’s Total Mr. Boyer’s %

Income Income Income

2014 $108,225.00 $64,335.00 $172,560 62.7%

2015 $100,367.00 $66,008.00 $166,375 60.3%

2016 $107,264.61 $69,380.00 $176,644.61 60.7%

2017 $106,526.00 $64,707.00 $171,233 62.2%

[149] Based on his percentage of the parties’ collective income, Mr. Boyer shall be required to pay his proportional share of the children’s s. 7 expenses in the following amounts:

Year s. 7 expenses Mr. Boyer’s % Mr.Boyer’s contribution

• 2014: $13,441.79 62.7% $8,428.00

• 2015: $11,085.20 60.3% $6,684.38

• 2016: $9,813.69 60.7% $5,956.91

• 2017: $9,344.42 62.2% $5,812.23

e) Division of property

Ms. Henry’s claim to a constructive trust interest in Mr. Boyer’s properties

Legal framework

[150] The Supreme Court of Canada gave guidance on the approach to be taken to claims based on constructive trusts in Rathwell v. Rathwell (1978).[^29]In that case, the parties married in 1944 and for the next 30 years, engaged in farming. They opened a joint bank account into which they deposited all monies they received and from which they paid their expenses. They used the funds in the account to make a down payment on their farm, which was registered in Mr. Rathwell’s name alone. They did not discuss the beneficial ownership of the property, except to say that it was “ours”. They worked together as husband and wife in the farming business, Mrs. Rathwell doing the chores, gardening, preparing meals, providing transportation for hired help, keeping records, and raising and educating the parties’ four children.

[151] The Supreme Court of Canada held that Mrs. Rathwell was entitled to succeed, whether based on the doctrine of resulting trust or the doctrine of constructive trust. The Court distinguished between the two forms of trust. It stated that to establish a resulting trust, a party must prove a common intention, manifested by words or acts, that the party not on title acquire a beneficial interest in the property. For constructive trusts, no intention is required.

[152] Dickson J. noted that resulting trusts are as firmly grounded in the settlor’s intent as are express trusts, but with the difference that the intent is inferred or presumed as a matter of law from the circumstances.[^30] A constructive trust is imposed irrespective of intention:

Where a common intention is clearly lacking and cannot be presumed, but a spouse does contribute to family life, the court has the difficult task of deciding whether there is any causal connection between the contribution and the disputed asset. It has to assess whether the contribution was such as enabled the spouse with title to acquire the asset in dispute. That will be a question of fact to be found in the circumstances of the particular case. If the answer is affirmative, then the spouse with title becomes accountable as a constructive trustee. The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions. The relief is part of the equitable jurisdiction of the court and does not depend on evidence of intention.

The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve a result consonant with good conscience. As a matter of principle, the court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason such as a contract or disposition of law, for the enrichment.[^31]

[Emphasis added.]

[153] In Rathwell, the Supreme Court held that three requirements must be satisfied for a constructive trust to arise based on unjust enrichment: an enrichment, a corresponding deprivation, and an absence of juristic reason for the enrichment. If these three elements are proven, the right to relief is made out.[^32]

[154] The Supreme Court dealt with trusts again in Becker v. Pettkus, (1980).[^33] There, the parties were in a common law relationship for 20 years. The woman supported them for the first five years while the man saved to acquire a farm. She did farm work and helped the man to acquire and maintain a beekeeping business. The man used profits from the beekeeping business to buy additional land on which he built a home. The woman sought a declaration that she was entitled to half the property acquired through their joint efforts. Justice Dickson, for the majority, noted the difficulty in discerning evidence of common intention in such cases.

…The sought-for “common intention” is rarely, if ever, express; the courts must glean “phantom intent” from the conduct of the parties. The most relevant conduct is that pertaining to the financial arrangements in the acquisition of property. Failing evidence of direct contribution by a spouse, there may be evidence of indirect benefits conferred: where, for example, one partner pays for the necessaries while the other retires the mortgage loan over a period of years, Fibrance v. Fibrance, [1957] 1 All E.R. 357.

Although the resulting trust approach will often afford a wife the relief she seeks, the resulting trust is not available, as Professor Waters points out, at p. 374: “where the imputation of intention is impossible or unreasonable”. One cannot imply an intention that the wife should have an interest if her conduct before or after the acquisition of the property is “wholly ambiguous”, or its association with the alleged agreement “altogether tenuous”. Where evidence is inconsistent with resulting trust, the court has the choice of denying a remedy or accepting the constructive trust.[^34]

[Emphasis added.]

[155] Justice Dickson would not infer a common intention where the trial judge had not found one, express or implied, so the woman’s claim based on resulting trust failed. However, he held that the wife’s claim based on constructive trust should succeed. Justice Dickson re-affirmed the elements necessary to establish a constructive trust, as established earlier in Rathwell:

How, then, does one approach the question of unjust enrichment in matrimonial causes? In Rathwell I ventured to suggest there are three requirements to be satisfied before an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment. This approach, it seems to me, is supported by general principles of equity that have been fashioned by the courts for centuries, though, admittedly, not in the context of matrimonial property controversies.[^35]

[Emphasis added.]

[156] In Peter v. Beblow, (1993), the Supreme Court again considered a common law spouse’s claim for a constructive trust. Justice Cory noted that the absence of a juristic reason for enrichment involves an objective test:

The parties entering a marriage or a common law relationship, will rarely have considered the question of compensation for benefits. If asked, they might say that because they loved their partner, each worked to achieve the common goal of creating a home and establishing a good life for themselves. It is just and reasonable that the situation be viewed objectively and that an inference be made that, in the absence of evidence establishing a contrary intention, the parties expected to share in the assets created in a matrimonial or quasi-matrimonial relationship, should it end.[^36]

[Emphasis added.]

[157] Where the court finds that there has been an unjust enrichment in the acquisition or preservation of property, it exercises discretion as to whether to order a payment of money to the aggrieved party, or an actual interest in the property. A constructive trust interest in the property itself is available only when a monetary remedy is inadequate, and where there is a link between funds paid or services rendered and the property in which the trust is claimed.[^37] The remedy is appropriate, for example, where there is a finding of fraud in relation to the particular property.[^38]

[158] In Peter v. Beblow, the Supreme Court restored the judgment of the trial judge, who had awarded the common law wife the property, which she had expended her labour to improve, as restitution for her contribution over the course of the parties’ 12-year relationship. The court held that monetary damages would not be sufficient to compensate her, and that there was a sufficient link between the property and her contribution.

[159] In Sorochan v. Sorochan, (1986), the Supreme Court held that the constructive trust remedy should not be confined to cases where the applicant contributed to the acquisition of the property; it was enough if she had contributed to the "preservation, maintenance, or improvement of the property," so long as the services rendered have a "clear proprietary relationship." That relationship was established where the applicant’s contributions prevented the property from declining in value.[^39]

[160] In Morningstar v. Holley, (2007), Henderson J. rejected the husband’s argument that his common law spouse, if successful, should not acquire an interest in the property, and was entitled only to a share of the equity, and would be fully protected if the property were sold and the proceeds held in trust to satisfy a future judgment in her favour. Justice Henderson held that it was open to the trial judge to grant the spouse an actual interest in the property. He stated:

I do not agree with the applicant’s position on that point. If a trial Judge finds that there has been unjust enrichment of the applicant, it is open to the trial Judge to choose an appropriate remedy. The trial Judge may simply choose to order that the applicant pay a sum of money to the respondent, or the trial Judge may grant an interest in the property to the respondent in the form of a constructive trust. See the case of Peter v. Beblow, [1993] 1 S.C.R. 980, at para. 21.[^40]

[Emphasis added]

Applying the legal principles to the facts of this case

[161] Before Ms. Henry became pregnant with Mr. Boyer’s child, she was living with her two children from a previous relationship in a townhouse where the rent was based on a tenant’s income. She paid rent of $840.00 per month at the townhouse.

[162] Ms. Henry had pre-qualified for a mortgage and was house hunting. When Ms. Henry became pregnant, Mr. Boyer told her that he did not want his child growing up in the “ghetto” and wanted to buy a house for Ms. Henry and the children. Ms. Henry found the Copeland property, which was being sold under power of sale and she told Mr. Boyer about it. She was successful in acquiring the property in September 2008, for $295,000.00.

[163] Ms. Henry was about to go on maternity leave and told Mr. Boyer several times that she wanted to own her own home, but could not afford it at that time because of her reduced income. Mr. Boyer said that he “wanted to do the right thing” and told her that he would help with the down payment and help pay for the household expenses and Ms. Henry was days away from giving birth. Mr. Boyer gave her the impression he was helping her qualify for the mortgage because she was carrying his child and her income was about to be significantly reduced. He handled all the paperwork and Ms. Henry signed it without getting any legal advice.

[164] Ms. Henry contributed $20,000.00 to the purchase of the Copeland Road property; Mr. Boyer contributed $15,000.00. The mortgage payments on the Copeland Road property were $1,600.00. Ms. Henry did not contribute to the mortgage on the Copeland Road property, although Ms. Henry was on maternity leave and was earning only 55% of her previous salary. Mr. Boyer earned approximately $105,000.00 at that time, while Ms. Henry earned approximately $34,650.00. Ms. Henry borrowed $7,000.00 from her brother to help with the added expenses of the new house.

[165] Mr. Boyer made no contribution toward the mortgage, property taxes, or utilities on the Copeland Road property. For three years, he did not contribute to the home insurance. Between September 2008 and August 2011, Ms. Henry paid $100,000.00 in mortgage and taxes on the property. The mortgage payments were as follows:

$725 biweekly from September 2008 to August 2009;
$772 biweekly from September 2009 to October 2009;
$822 biweekly from November 2009 to October 2011;
$833 biweekly from November 2011 to September 2013;
$842.73 biweekly from October 2013 to the present.

[166] When Mr. Boyer moved into 44 Copeland Road in 2011, Ms. Henry continued to pay the mortgage, property taxes, and home insurance. The parties’ first child, Kiera, was born the same month Mr. Henry moved in. Mr. Henry contributed $750 more to the household when he moved in, but it was not enough to cover household expenses for a family of six.

[167] Ms. Henry furnished the house and bought all the appliances when she moved in. After she returned to work, she remodeled the washroom in the master bedroom. She bought and paid for the installation of windows and doors, replaced all the toilets, bought blinds and window coverings, paid for hardware for the kitchen, and negotiated a discounted rate for the kitchen designer/installer.

[168] Ms. Henry lost two years of pension contribution from her employer during the periods when she stayed at home on maternity leave. She has had to spend an additional two years in the workforce while Mr. Boyer qualifies for early retirement and has several income properties to supplement his pensions. She lost two years of contribution to pension; he gained two years.

[169] Mr. Boyer’s primary residence when they began living with each other was at the 4144 Chadburn Crescent, Mississauga, property, where he continued to reside until August 2011. Mr. Boyer rented out that property when he moved to 44 Copeland Road. Ms. Henry wanted to get married before Mr. Boyer moved in, but Mr. Boyer told her that he wanted to live together first, before getting moved in himself.

[170] The impression that emerges from the evidence is that Mr. Boyer capitalized on his relationship with Ms. Henry, deriving all the benefits of a marriage without assuming the responsibilities, other than paying $15,000.00 to Ms. Henry, which, in effect, amounted to a loan to her, and $750 per month toward household expenses, which was less than the rent he charged on the basement apartment he had occupied at 4144 Chadburn Crescent, which he had previously occupied.

[171] Ms. Henry provided accommodation to Mr. Boyer, cooked meals, did his personal shopping, babysat their children, performed household duties, and planned events and vacations, which enabled him to save, invest and acquire property, renovate, and meet with prospective clients for his rental units at both the Chadburn Crescent and the Woodington Drive, Mississauga, properties. Ms. Henry additionally placed advertisements on his behalf for the rental of his basement apartment at Chadburn Crescent.

[172] Mr. Boyer’s occupation of the Copeland Road property allowed him to rent his Chadburn Crescent property and pay off the mortgage on that property, and to acquire the Woodington Drive property near Square One Shopping Centre in Mississauga. He used Ms. Henry’s washer and dryer in the rental unit at the Chadburn Crescent property and borrowed a refrigerator from her for his tenant at that property.

[173] Mr. Boyer bought the property at 4088 Woodington Drive with savings made possible by his living arrangements with Ms. Henry. He did all the paperwork for the purchase, placing 99% of the title in the name of his father, who is a pensioner on a fixed income. He withdrew $8,000 from the parties’ joint Line of Credit to purchase appliances for the Woodington Drive property. When Ms. Henry questioned him, he insisted that the Line of Credit be closed, to which Ms. Henry agreed.

[174] On February 1, 2017, the parties agreed that Ms. Henry would buy out Mr. Boyer’s interest in the Copeland Road Property for $75,000.00. This was the second time that the parties agreed to a buyout and the second time Ms. Henry applied to BMO for a new mortgage. She obtained approval for a new mortgage and retained a real estate lawyer to prepare a transfer. Ms. Henry informed Mr. Boyer that his signature was needed for the transfer, at which point Mr Boyer informed her that he needed to protect his interest and had his lawyer draft a separation agreement a few days before the closing. He informed Ms. Henry that if she did not sign, he would not sign the transfer. The fees for the real estate lawyer were $981.00 and were borne solely by Ms. Henry.

[175] The Bank of Montreal conducted an appraisal on the Copeland Road property on December 23, 2016, which resulted in an appraisal of its value at $476,000.00. Ms. Henry paid $300.00 for the appraisal. The MPAC assessment of the property is for $497,000.00. Ms. Henry made additional mortgage payments to reduce interest and amortization. She was unable to add additional payments following Mr. Boyer’s purchase of the 2nd Woodington property in 2015 because his name was on the mortgage of that property and his debt ratio was considered high as he was then on title for four properties and the related mortgages.

[176] The two properties on Woodington Drive are jointly owned by Mr. Boyer and his father, and have separate self-contained upper and lower units with separate entrances. The Chadburn Road property, which is mortgage free, is solely owned by Mr. Boyer, and also has two separate self-contained units with separate entrances.

[177] I find that Ms. Henry contributed a far greater amount, financially, to acquire and increase the parties’ equity in 44 Copleland Road than Mr. Boyer did. Her contributions not only enriched Mr. Boyer by increasing the value of his share of the equity in that property, but additionally enabled him to enhance his income from his property at acquire and profit from the acquisition of interests in the properties on Woodington Drive.

[178] Although the property at the title to 4088 Woodington Drive is 1% in Mr. Boyer and 99% in his father, and the title to 4094 Woodington Drive is held 50% by Mr. Boyer and 50% by his father, a close examination of the transactions leads me to conclude that Mr. Boyer controls both properties and that he, in fact, owns a greater beneficial interest in both properties than the title documents would suggest.

[179] Mr. Boyer’s father is 70 years old and suffers from lupus and other conditions. He has been a pensioner for 25 years and lives on a fixed income. Mr. Boyer persuaded him to mortgage his home at 4088 Woodington Drive in order to provide security for Mr. Boyer’s purchase of the property at 4094 Woodington Drive to which he and his father each hold 50% of the tile. Mr. Boyer explains that making himself a 1% owner of his father’s home facilitated mortgage financing for the purchase of 4094 Woodington Drive, and that making each of them 50% owners of 4094 Woodington Drive allows Mr. Boyer to rent that property to tenants in order to generate revenues that pay for the mortgage and property taxes on that property as well as the mortgage on his father’s property at 4088 Woodington Drive, and generate income for both of them. What he doesn’t mention is that being a joint owner of both properties will eventually result, in all likelihood, in his becoming the sole owner of both.

[180] The result of the transactions is that Mr. Boyer is a joint owner of his father’s $700,000.00 home at 4088 Woodington Drive, which his father purchased for cash, and that is now subject to a mortgage, the particulars of which Mr. Boyer did not disclose, and of a $700,000.00 rental property at 4094 Woodington Drive, Mississauga, which is subject to a mortgage of $467,873.10, and a Home Equity Line of Credit in the amount of $143,917.64, in his and his father’s name, and which Mr. Boyer rents to tenants under leases which he also did not disclose, notwithstanding an Order by Trimble J. that required him to produce all documents for the properties.

[181] Mr. Boyer acknowledges that he used $10,000.00 that he withdrew from his and Ms. Henry’s joint Line of Credit in order to complete the purchase of 4094 Woodington Drive with no money of his own or of his father’s.[^41] All of the renovations that were performed by contractors were paid for with the Line of Credit before the tenant moved in.

[182] Mr. Boyer says that he repaid $2,000.00 to the Line of Credit immediately and the balance “later”.[^42] He acknowledges that he controls the rental of 4094 Woodington Drive, and maintains the property, but he has not disclosed to Ms. Henry or to this Court the deduction he claims for the expenses he incurs in that regard, or the profit he derives from the property. I draw an inference from his failure to do so, that that evidence, if disclosed, would not be favourable to him.

[183] Based on the foregoing, I find that Ms. Henry made financial contributions to Mr. Boyer’s acquisition of an interest in 44 Copeland Road, Mississauga, and in 4094 Woodington Drive, Mississauga, and 4088 Woodington Drive, and to the enhancement of his income from 4144 Chadburn Crescent. Her contributions enriched him at her expense without any juridical explanation or justification. Because Mr. Boyer did not fully disclose his interests in those other properties, and the income he has derived from them, it is not possible to calculate the monetary damages she suffered by reason of his unjust enrichment. The only just remedy in these circumstances is to vest the property at 44 Copeland Road in Ms. Henry, free and clear of any claim by Mr. Boyer.

COSTS

[184] The Applicant, Ms. Henry, has been substantially successful in the outcome of this trial. She shall be awarded costs on the following basis. Ms. Henry stated that she spent approximately 15 hours preparing for the trial. Before that, she had spent approximately 10 hours preparing documents for the proceeding. She has not lost income from her employment, but she could have been compensated for the time she spent, at her regular wage rate of $31.00 per hour at a minimum. She could have been compensated at time and a half had she worked overtime.

[185] Ms. Henry is not entitled to costs for the time she spent at the trial, as a litigant who is represented by a lawyer is not awarded costs for the time the litigant him/herself spends in court with the lawyer. However, she is entitled to the time she spent in preparation of the documents for the proceeding and the time she spent preparing for trial. She presented her case efficiently and with civility.

[186] Ms. Henry incurred out of pocket expenses for which she shall also be compensated. She spent $280.00 each to file her Application and Trial Record. She paid $25.00 for paper binding services. She did all her serving and filing of documents.

[187] Ms. Henry’s lawyer charged her $300 for assisting her with the Case Conference, $8,000.00 to assist her in her preparation for the trial, and $2,000.00 to help her prepare a settlement agreement, which was never signed. She will be awarded those costs, which were all properly incurred for the purpose of the proceeding.

[188] Ms. Henry incurred a cost of $890.00 for doing a title search on the property at 44 Copeland Road and she paid $300 to the Bank for an appraisal. Those expenses were not required for the trial, as she did not rely on the title search or appraisal as evidence in the trial. She incurred those expenses with a view to having Mr. Boyer transfer 44 Copeland Road to her pursuant to the settlement she thought they had reached. It is fair that she not be required to incur further expenses to implement this Judgment insofar as the vesting of that property in her is concerned. Mr. Boyer will therefore be required to pay that expense.

[189] Based on the foregoing, Mr. Boyer will be ordered to pay Ms. Henry’s costs in the amount of $9,590.00, calculated as follows:

• $8,230 which Ms. Henry paid for unbundled legal services;

• $775.00 for 25 hours of her own time in preparation at $31 per hour.

• $585 to file her Application and Trial Record and for binding.

CONCLUSION AND ORDER

[190] For the foregoing reasons, it is ordered and adjudged that:

Custody

The Applicant, Bridgette Henry, shall have custody of the parties’ children:

a. Kiera Milan Boyer, age 10;

b. Karis Michelle Boyer, age 7.

Principal residence

The children shall reside principally with Ms. Henry. Ms. Henry shall not move the children’s residence more than 30 kilometres from their present address, 44 Copeland Road, Brampton, without the consent in writing of Mr. Boyer or an Order of this Court.

Regular Parenting Schedule

The Respondent, Darren Boyer, shall have access to the children in accordance with the following schedule:

(a) Beginning Tuesday, November 20, 2018, and from Labour Day each year until the end of the children’s academic year, the children shall be in Mr. Boyer’s care in accordance with the following schedule:

(i) Every Tuesday and Thursday from the end of the school day, when he shall pick the children up from their respective schools, until the following morning, when he shall deliver Karis to Ms. Henry’s home by 7:30 a.m., and shall deliver Kiera to her school by 7:45 a.m.;

(ii) On alternate weekends, beginning November 23, 2018, from Friday at the end of the school day, when he shall pick the children up from their respective schools, until the following Monday, when he shall deliver Karis to Ms. Henry’s home by 7:30 a.m., and shall deliver Kiera to her school by 7:45 a.m.;

(b) Beginning at the end of the academic year and continuing until Labour Day, the children shall be in the care of each parent on a week about basis, beginning with Mr. Boyer in even years and beginning with Ms. Henry in odd years, from Monday afternoon at 4 p.m. until the following Monday at 4 p.m. Pick-up shall be the responsibility of the parent assuming care of the children and shall be done at the residence of the parent whose care of the children is ending.

Holiday and Special Occasion Access

The parties shall observe the following special access days, during which the regular access schedule set out elsewhere in this Order shall be temporarily suspended:

a) Father’s Day - If the children are not otherwise with the father on this weekend, they shall reside with him on Father’s Day, from Sunday at 9:30 a.m. until 7 p.m. or, if they are in school, until their return to school on Monday.

b) Mother’s Day - If the children are not otherwise with the mother on this weekend, they shall reside with her on Mother’s Day from 9:30 a.m. until 7 p.m. or, if they are in school, until their return to school on Monday.

c) Valentine’s Day – The children shall spend Valentine’s Day with the parent with whom they normally spend that day of the week based on the terms of this order dealing with regular (non-vacation) access.

d) March Break – Beginning in 2019, and in odd-numbered years thereafter, from the close of school to the resumption of school, the children shall spend March Break with the mother. Beginning in 2020, and in even-numbered years thereafter, from the close of school to the resumption of school, the children shall spend with the father.

e) Easter –

i. In odd-numbered years beginning in 2019, the children shall reside with the father from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with mother from Saturday at 10:00 a.m. to the resumption of school.

ii. In even-numbered years beginning in 2020, the children shall reside with the mother from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with the father from Saturday at 10:00 a.m. to the resumption of school.

f) Summer Vacation – Each of the father and the mother shall have an uninterrupted vacation time of two weeks’ duration with the children, during which the other parent’s mid-week access shall be suspended, resuming upon the end of the two-week vacation period. The parent having first choice of the vacation period shall advise the other parent by May 15th of the chosen vacation weeks with the children. The other parent shall advise the first by May 31st of the chosen weeks. The mother shall have first choice in odd-numbered years, beginning in 2019, and the father shall have first choice in even-numbered years, beginning in 2020.

g) Canada Day – The children shall spend Canada Day with the parent with whom they normally spend that day of the week based on the above-mentioned provisions of this order, unless the day falls on the vacation access of a parent, in which case they shall spend Canada Day with the parent with whom they are scheduled to spend vacation at that time based on the provisions of this order.

h) Thanksgiving weekend – In odd-numbered years, beginning in 2019, they shall spend this holiday with the father, and in even-numbered years, beginning in 2020, the children shall spend this holiday with the mother.

i) Christmas – Beginning in 2018, and in even-numbered years thereafter, the children shall reside with the father from the beginning of the school holiday until December 25th at 12:00 noon and with the mother from December 25th at 12:00 noon until the December 29th at noon and from the father from December 29th at noon until the resumption of school. Beginning in 2019, and in odd-numbered years thereafter, the schedule shall be reversed, and the children shall reside with the mother from the beginning of the school holiday until December 25th at 12:00 noon, etc.

j) Parties’ birthdays – The children shall spend at least two hours with each parent on their parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.

When the children are in the care of one of their parents, and that parent is unable to care for them (or one of them) directly, it shall be the responsibility of that parent to make arrangements for the children’s care. That parent may ask the other parent to assume care, but shall be under no obligation to do so before engaging other family members, unpaid volunteers, or commercial care-givers to care for the children.
Either parent shall be entitled to travel with the children outside of Canada during periods when the children are in that parent’s care, provided that parent provide the other parent with an itinerary, with flight numbers and the places of lodging and telephone numbers where he/she and the children may be contacted during any absence from Canada at least 30 days in advance of the trip. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.
The mother shall hold the children’s birth certificates, Social Insurance cards, and travel documents but shall release them to the father when he requires them for travel in accordance with this Order. She shall also release these documents, upon the father’s request, for periods not to exceed 72 hours.
The children’s OHIP cards shall travel with them when the children’s residence changes from the home of one parent to that of the other.
Each of the parties shall have the right to communicate with the children at any reasonable time by telephone and email, and each parent shall keep the other informed of the children’s email addresses and telephone numbers, as well as their residential address, whenever any one of these change.
Neither party shall arrange extra-curricular activities for the children, or attendance at special events, such as the birthday party of a class-mate, at a time when the children are to be in the care of the other parent pursuant to this Order. Each party shall be responsible for transporting the children to and from activities that fall on days when the children are in that parent’s care. When special opportunities for the children arise, such as a school trip or athletic tournament scheduled by a third party service provider, or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, each party shall co-operate in making reasonable alternative arrangements so that the interests of the children prevail, and each party shall give their own needs and convenience only secondary importance.
Both the father and the mother shall have the right to information regarding the children’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding the children’s health and general well-being. Each of the parties may prepare a direction and a consent to Disclose Personal Health Information, pursuant to the PHIPA, authorizing him/herself to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten days of receipt.
Beginning on the children’s tenth birthday, each of the parents shall have the right to communicate with the children and the children shall have the right to communicate with either parent in private by email or Skype or other video-calling service at any reasonable time when they are residing with the other parent, and each parent shall, by the children’s tenth birthday, equip the room which the children occupy when residing with them with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of the children’s email addresses and telephone numbers whenever they change.
There shall be no change in the children’s school without the advance written consent of both parents or order of the court.
Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications and it shall be the responsibility of that parent to check his/her email on a daily basis.

Review of custody or access

The foregoing parenting schedule may be reviewed, if either parent wishes, by a regular motion (not by motion to change, and not requiring a material change of circumstances) at least 60 days after they have established separate residences, only if the parenting schedule proves to be logistically impossible or to create undue hardship for either parent or the children.
The custody term of this Order may be reviewed, if either parent wishes, by a regular motion, (not by motion to change, and not requiring a material change of circumstances) on or after the anniversary of the Order.

Child Support

The Respondent, Darren Boyer, shall pay child support to the Applicant, Bridgette Henry, beginning January 1, 2019, for the support of Kiera and Karis Boyer, in the amount of $ 1,551.00 per month, based on his annual income of $106,526.00 in 2017, until the adjustments to be made on July 1, 2019, as set out below, whereupon the child support he pays from January 1, 2019, shall be based on his 2018 income.
The Respondent, Darren Boyer, shall forthwith pay $4,822.69 to the Applicant, Ms. Henry, as his contribution to the children’s s. 7 expenses from 2014 to 2017 inclusive, calculated as follows:

• 2014: $13,441.79 62.7% $8,428.00

• 2015: $11,085.20 60.3% $6,684.38

• 2016: $9,813.69 60.7% $5,956.91

• 2017: $9,344.42 62.2% $5,812.23

TOTAL: $26,881.52

Less excess child support paid: $22,058.83

Balance owing to December 31, 2017: $4,822.69

On May 1, 2019, and on May 1 of each year thereafter, the parties shall produce to each other their income tax returns for the previous year, as filed, with all schedules and attachments, and shall produce to each other their Notices of Assessment and Re-Assessment from Canada Revenue Agency for the said previous year. Additionally, Mr. Boyer shall, by that date, produce to Ms. Henry an affidavit setting out the names and contact information of each of his tenants and those of his father for the properties Mr. Boyer manages, and the amount of rent paid by each tenant in the preceding year. In 2019, the parties shall, in addition to their tax returns and Notices of Assessment and Re-Assessment for the preceding year, also produce those documents for 2017.
The parties shall, by June 1, 2019, and by June 1 of each succeeding year, produce to each other their calculation of the monthly child support Mr. Boyer is required to pay from January 1, 2019, onward (and in 2019, the child support he was required to pay from January 2018 onward in that year), and the percentage of the children’s s. 7 expenses he was required to pay. Ms. Henry, shall, by the same date, produce to Mr. Boyer her receipts for the children’s s. 7 expenses for the preceding year.
The Respondent, Darren Boyer, shall, by July 1, 2019, and by July 1 of each succeeding year, pay any unpaid child support owing by him, up to June 1, 2019, and, on the first day of each month thereafter, shall pay the adjusted amount of his child support, together with his proportionate share of such s. 7 expenses as Ms. Henry incurred in the preceding year, for which she has produced receipts.
The property at 44 Copeland Road in Brampton is vested solely in Ms. Henry, in satisfaction of her constructive trust interest in Mr. Boyer’s share of that property and of 4088 Woodington Drive, Mississauga, 4094 Woodington Drive, Mississauga, and 4144 Chadburn Crescent, Mississauga.
Ms. Henry shall, within 90 days, cause Mr. Boyer’s name to be removed from the title and mortgage on 44 Copeland Road, Mississauga, the expense of which shall be paid by Mr. Boyer.
If the parties are unable to agree on the costs of this proceeding, they shall submit written arguments, not to exceed four pages, and an affidavit setting out the facts on which they rely, and a Bill of Costs. The Affidavit shall address, in separate paragraphs, each of the factors set out in Rule 24(12) of the Family Law Rules and supporting material, as required by Rule 24(12.1).
Mr. Boyer shall pay Ms. Henry her costs of the proceeding, fixed in the amount of $9,590.00, inclusive of H.S.T. and disbursements, which shall be enforceable as child support by the Family Responsibility Office.
Unless the Support Order and Support Deduction Order are withdrawn from the Office of the Director of the Family Responsibility Office, the Support Order shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the Applicant, Ms. Henry.

Price J.

Released: November 16, 2018

COURT FILE NO.: FS-17-52-00

DATE: 2018 11 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRIDGETTE HENRY

Applicant

and –

DARREN BOYER

Respondent

REASONS FOR JUDGMENT

Price J.

Released: November 16, 2018

[^1]: Exhibit 2-A-A [^2]: B.V. v. P.V., 2012 ONCA 262, at paras. 14 to 18. [^3]: Federal Child Support Guidelines, S.O.R. 97-175, s. 3. [^4]: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. [D.B.S.]. [^5]: D.B.S., at para. 97. [^6]: D.B.S., at para. 99. [^7]: D.B.S., at para. 116. [^8]: D.B.S, at para. 125. [^9]: McKenna v. McKenna, 1981 1178 (Ont. C.J.) at para. 5. [^10]: Child Support Guidelines, O. Reg. 391/97. [^11]: Vidal v. Dunn, 2018 ONSC 2801, at para. 14 [^12]: Bukasa v Nyembwe, 2016 ONSC 5317, at para. 8. [^13]: Moore v. Fernandes, 2001 28263 (ON SC), [2001] O.J. No. 5192 (Sup. Ct.) at para. 8. [^14]: “This Week in Family Law,” Fam. L. News. 2002-12, March 26, 2002. [^15]: S. (N.T.) v. B. (K.J.), 2007 BCSC 1895, at paras. 27-28 [^16]: Karajian v. Karajian, 2012 ONSC 4921, at para. 44. [^17]: Mohammed v. Mohammed, 2013 ONSC 4249. [^18]: Henderson-Jorgensen v. Henderson-Jorgensen, 2013 ABQB 213, at paras. 15-16. [^19]: Exhibit Book, volume 1, tab 11 [^20]: Exhibit 3C at the trial. [^21]: Federal Child Support Guidelines, s. 7 [^22]: Adapted from Titova v. Titov, 2012 ONCA 864, at para. 23. [^23]: In Wawzonek v. Page, 2015 ONSC 4374, Justice Pazaratz says, at para. 198, that the tax considerations should come before consideration of the child’s contribution. [^24]: Ibid. [^25]: Terry v. Moyo, 2013 ONCJ 364, at para. 29. [^26]: MacNeil v. MacNeil, 2013 ONSC 7012, at paras. 31-34. [^27]: Bordin v. Bordin, 2015 ONSC 3730, at para. 116. [^28]: Boisvert v. Boisvert, 2007 24073 (ON SC), 40 R.F.L. (6th) 158, at para. 48. [^29]: Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436. [^30]: Rathwell at p. 451. [^31]: Rathwell at p. 454. [^32]: Rathwell at p. 455. [^33]: Becker v. Pettkus, 1980 22 (SCC), [1980] 2 S.C.R. 834. [^34]: Becker at paras. 22 and 26 [^35]: Ibid at para. 38. [^36]: Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, per Cory J., at para. 84. [^37]: Peter at para. 26. [^38]: Soulos v. Korkontzilas, 1997 346 (SCC), [1997] 2 SCR 217, at paras. 20 and 43. [^39]: Sorochan v. Sorochan, 1986 23 (SCC), [1986] 2 S.C.R. 38, at paras. 31-32. [^40]: Morningstar v. Holley, 2007 2359 (ON SC), at paras. 5-7, 9. [^41]: Reporting letter from Fiona Empke, Exhibit 8, Tab 5 U. [^42]: Exhibit 8, Tab 5Z.

Henry v. Boyer, 2018 ONSC 6858

Case Summary

OVERVIEW

BACKGROUND FACTS

ISSUES

PARTIES’ POSITIONS

ANALYSIS AND EVIDENCE

a) When did the parties separate?

b) Custody of the children

c) What child support is Ms. Henry entitled to?

d) Ongoing and retroactive s. 7 expenses

e) Division of property

COSTS

CONCLUSION AND ORDER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4