COURT FILE NO.: FS-17-89443-00 DATE: 2019 03 22
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ekaterina Karmanova A. A. Goudimenko, Counsel for the Applicant Applicant
- and -
Zurab Gugushvili Y. Obouhov, Counsel for the Respondent Respondent
HEARD: January 28-31 and February 1, 2019
Reasons for Decision
LEMAY J
1The Applicant, Ekaterina Karmanova (“Katia”) and the Respondent Zurab Gugushvilli (“Zurab”) met at Seneca College in early 2012. They were in a common law relationship for some period of time before that relationship ended in March of 2017. The length of time that they were in a common law relationship is a matter of some considerable dispute between the parties.
2The parties attended at a ceremony in Stavropol, Russia on July 31st, 2016 during which, to a casual observer, they would appear to have gotten married. However, it is now common ground that there was no marriage, as Respondent had not received a divorce from his previous wife by the time of the ceremony.
3On March 8th, 2017, the parties got into a domestic dispute of some nature. This altercation resulted in charges against Respondent. As a result, they separated as of that date. Katia remained in the condominium in Mississauga where they were living, while Zurab was required to leave as a result of his bail conditions.
4As will be seen below, Zurab has sole title to the condominium that the parties were living in. As a result, after a period of time, he was successful in removing Katia from the condominium and returning to live there. He continues to own this condominium, although his mother and his current partner’s mother now live there.
5Katia now brings this claim for spousal support and for a claim in unjust enrichment for a half ownership of the condominium. She also brings a series of claims for other relief, which will be discussed below. For the reasons that follow, Katia is entitled to some spousal support as well as some small payments on account of the property.
Background
a) The Parties and the Commencement of Their Relationship
6Katia is currently 27 years old. In January of 2012, she had just turned 20, and had completed high school in Russia. She decided to attend Seneca College in the hospitality program.
7Zurab is currently 38 years old. In January of 2012, he was in the last year of the Civil Engineering Technology program. At the time, he was married to Anna Shestak (“Anna”), and they had two small boys, one born in October of 2009 and the other in July of 2011. Zurab was living in Mississauga with Anna and their children.
8The parties were originally friends. Then, at Zurab’s birthday party in March of 2012, the two of them began an intimate relationship. This intimate relationship continued for some time.
9On Katia’s evidence it was ongoing continuously until March of 2017. On Zurab’s evidence, this relationship ended in late October of 2012, and commenced again in early 2013. I will resolve this question, and the question of whether the parties cohabited together in my discussion of spousal support, below.
10In July of 2012, Katia signed a lease on a property in North York. This was a unit in a house. Zurab’s name is on the lease for this property, but he did not sign the lease. Katia lived in this property until February of 2013, when she moved to an apartment in Scarborough.
11The lease for the Scarborough property is not in evidence. However, it is common ground that Zurab’s name was not on this lease. Zurab, on his own evidence, would spend some time at the Scarborough property.
12The parties also spent time together during this time period, including a week-long trip to New York City over New Years between 2013 and 2014. The amount of time that they spent together is a matter of considerable dispute.
b) The Condominium, the Cohabitation and the Wedding
13In August of 2014, the parties leased an apartment on Webb Avenue in Mississauga. On this occasion, both parties signed the lease. Katia testified that they moved together from the Scarborough apartment to the Webb Avenue apartment. Zurab testified that he was still cohabiting with Anna, and moved to the Webb Avenue apartment sometime in September or October of 2014.
14It is clear from the Court documentation relating to Zurab and Anna’s family law proceedings that Zurab separated from Anna no later than August or September of 2015. Zurab states that he lived with Anna and the children in their home in Mississauga continuously until that time. Katia disputes this evidence. I will return to my findings on this point below.
15It is common ground that the parties lived together in the Webb Avenue apartment starting no later than October of 2014. Both parties signed the lease agreement for this property.
16Then, a condominium on Confederation Parkway (“the condominium”) was purchased, and the parties moved to this condominium in September of 2015.
17Title to the condominium was in Zurab’s name only. He says that he purchased the condominium using mostly his own money, and he was not yet serious enough about Katia to purchase property jointly with her.
18However, it is agreed that Katia’s parents loaned Zurab $11,500.00 at approximately the time that the condominium was purchased. This money was ultimately repaid by Zurab in February of 2017, with interest. Zurab denies that the loan was related to the condominium purchase.
19The parties lived in the condominium for approximately a year and a half, from September of 2015 to March of 2017. In addition, Zurab’s mother, Manon Durmishidze (“Manon”), came to live with the parties in the fall of 2015. She remained in the condominium until after the end of the parties’ relationship.
20As I have noted, however, Zurab and his estranged spouse, Anna Shestak are not yet divorced, although their separation was finalized by a consent Order dated September 27th, 2016.
21In the summer of 2016, the parties went to Stavropol to visit Katia’s family. On Katia’s evidence, this visit was also so that the parties could get married, and that the parties had planned to get married before they left for Stavropol.
22On Zurab’s evidence, he did not know that this “sham” wedding was going to take place until well after he had arrived in Stavropol, and a day or two before it happened. He testified that he knew he could not get married because he was not yet divorced from Anna. Zurab also testified that Katia was also aware of this fact, and that it was likely that Katia’s mother was aware of this fact as well.
23I was shown a video recording of the ceremony in Stavropol, and the Russian interpreter interpreted portions of the video recording to me. Based on that interpretation, it would have appeared that the parties went through a marriage ceremony, although the parties now acknowledge that this was not a legal marriage.
24Determining whether Katia knew that Zurab was not divorced on July 30th, 2016 will not directly resolve any of the issues that the parties have put before me. However, I have determined that it is necessary to resolve the factual issues over whether Katia knew that Zurab was not yet divorced when the parties participated in this ceremony. I reach this conclusion because resolving whether Katia was aware of the fact that Zurab was not yet divorced will assist me in resolving both how serious a relationship Zurab and Katia had at the time that the condominium was purchased as well as how long their relationship had been going on for. I will set out my findings on this issue below.
c) The End of the Relationship
25It is clear that the relationship ended in March of 2017. Katia says that she was assaulted, while Zurab says that Katia made the assault up. It is undisputed that, on March 8th, 2017, Zurab and Katia got into an argument.
26During the course of that argument, tensions escalated to the point where Katia left the apartment and called the police. Zurab was charged criminally with uttering threats as well as assault. As part of his bail conditions, Zurab was not permitted to return to the condominium. His mother, however, continued to live in the condominium with Katia.
27Approximately a week after the charges against Zurab were laid, Katia’s mother Inna arrived from Russia to spend time with Katia. She also stayed in the apartment. The relationship between Katia and Inna on the one hand, and Manon on the other hand was tense, to put it mildly. There were incidents between the various participants that I will return to below.
28In early April, Zurab had the locks changed on the condominium, barring Katia from entering it. Katia obtained the assistance of the police, as well as her own locksmith, and had the locks changed back. Zurab then retained counsel, who wrote to both the police and to Katia to advise that Katia had no right to live in the property, as the parties were not married and had not been living in a conjugal relationship for more than three years. Katia was subsequently evicted from the condominium, and this litigation commenced.
29There was some evidence about disputes that the parties had after they separated. In particular, there was evidence about an automobile insurance claim that Manon made, as well as Katia’s alleged attempts to contact the insurance company and allege fraud on the part of Manon and Zurab. It is neither necessary nor appropriate for me to resolve any factual issues on this point, as the allegations are not relevant to the issues I have to decide and there may be other proceedings over these issues.
Evidence and Credibility
30The parties each completed Affidavits that formed the basis of their examinations in chief. Attached to these Affidavits were volumes of documents that were generally included in the record for the truth of their contents. There are a couple of exceptions that I will briefly review.
31First, there were a number of documents in Russian, where no translations (either certified or non-certified) were provided by the parties. I advised the parties, before the first witness had finished testifying in chief, that I would not be considering anything in Russian that was not translated into English either in the documents or in Court. There were significant amounts of text messages that fell into this category, as well as Facebook posts between the parties. In spite of this direction, neither party sought to have any of these documents translated even though a significant portion of the trial proceeded with a Russian translator present.
32Second, there was an Affidavit from one of Zurab’s friends that formed part of the marked exhibits. The parties agreed that I was not to give this Affidavit any weight in reaching my decision.
33Third, there was a sworn statement from Anna Shestak in the evidentiary record. Given that Anna did not testify, I have not given this statement any weight.
34In terms of viva voce evidence, I heard from Katia and her mother Inna Karmanova (“Inna”) for the Applicant’s case. I heard from Zurab and his mother, Manon Durmishidze, for the Respondent’s case. I will address findings of credibility on each specific issues. However, I should make some general comments about credibility at the outset. Briefly put, the witnesses proffered by both sides had problems with both credibility and reliability. Both sides were very entrenched in their positions, and the evidence tendered by the witnesses reflected that fact. As a result, I have generally relied on the documents that each side provided rather than the evidence of the parties.
35I will address the credibility issues more fully in my analysis below. However, a couple of examples from each side will suffice to illustrate the problems that I had.
36Statements in Katia’s Affidavit and testimony were inconsistent with the documentation before me. For example, Katia stated in her Affidavit that she only found out that Zurab was not divorced in February of 2017. However, there are e-mails to Katia that make this fact clear as far back as December of 2016. Katia overstated her case on this point.
[37] In terms of Zurab, I note the following: a) Zurab’s marital status on his tax returns in 2013 and 2014 was suspect, to put it mildly. He stated that he was separated on these returns, but has maintained that this was an error and that he was continuing to live with Anna until the summer of 2014. b) Zurab’s evidence about the condominium being solely his is inconsistent with the sworn Financial Statements that he filed in his matrimonial litigation with Anna. In particular, his sworn financial statements divide many of the expenses for the condominium.
38In short, neither of the parties was completely truthful with the Court. As a result, the evidence of both parties needs to be approached in a cautious and careful manner.
39This brings me to the testimony of each of the mothers. First, there are quite naturally reliability issues with this evidence. Inna was not in Canada for large parts of this relationship. Similarly, Manon did not even move to Canada until late 2015. She cannot comment on the relationship prior to that time either. As a result, the reliability of the evidence from both of the mothers is limited.
40Then, there is their credibility. Again, the evidence of both Inna and Manon must be approached with caution, as it is not entirely credible. I will provide one example of the credibility problems for each witness.
41Inna’s evidence is not credible in part because she “forgot” about a visit to Canada in 2012, when she met (and was photographed with) Dainl Tanov, whose role I will discuss shortly.
42Manon’s evidence is not credible in part because she was not prepared to take any responsibility for the tension that existed in the condominium after the separation. I found her evidence on this point, in particular, to be evasive and incomplete.
Issues
[43] Based on the pleadings and the factual history I have set out above, the following issues must be resolved: a) Whether Katia is entitled to a share of the Confederation Drive Condominium that is solely in Zurab’s name? b) Whether Katia is entitled to spousal support? If so, for what period of time? c) Whether Katia is entitled to damages for mental distress or other general damages as a result of Zurab’s alleged conduct? d) Whether Katia is entitled to be compensated for any chattels that she left in the condominium, or any other heads of damage?
44While the Applicant sought remedies under the Divorce Act, the parties are now ad idem that there was never a valid marriage in this case. At the time of the marriage ceremony in Stavropol, Zurab was not divorced from Anna, his previous wife. As a result, the ceremony in Stavropol cannot be a valid marriage ceremony.
45In terms of the order that I should address the issues in this case, I am of the view that the property questions should be addressed before spousal support. The amount of spousal support, if any, will be dependent on the means and needs of Katia. Determining her means will require a consideration of her property, even though there is no entitlement to a division of Net Family Property in this case.
Issue #1 - The Condominium
46Katia is bringing a claim for either a constructive trust or a resulting trust in the condominium. She asserts that it was the intention of the parties that she be a joint owner in the condominium, but that she was not put on title because she had no credit history, and Zurab told her that it would be easier to obtain a mortgage if he was the only person on title.
47Zurab, on the other hand, states that he was not prepared to purchase the condominium jointly with Katia because, even though they were living together, his relationship with her was not sufficiently serious for him to make a commitment to own property with her.
[48] Determining whether Katia is entitled to an ownership interest in the condominium requires me to address a number of factual points, as follows: a) What contributions did Katia make to the purchase and/or maintenance of the condominium, including her contributions to household expenses? b) What contributions, either directly or indirectly, did her parents make to the purchase of the condominium? c) What were the parties’ understandings about the ownership of the condominium? d) Given these contributions, what remedy (if any) is appropriate?
49I will deal with each issue in turn.
a) Katia’s Contributions to Expenses
50A significant portion of the down payment for the condominium was provided by Katia’s parents. I will return to that payment in the next issue. However, between the date that the condominium sale closed and the date that the marriage concluded, Katia did make significant contributions to the property.
[51] From Katia’s personal banking account, she paid internet, taxes and utilities. I have records of payments from March 1st, 2016 to March 1st, 2017 for some of these items. The banking records reflect the following total payments: a) Property Taxes to the City of Mississauga from March 1st, 2016 to August 31, 2016 in the sum of $1,477.65. b) Utilities and other fees to the Condominium Corporation for the time period from March 1st, 2016 to March 31st, 2017 in the sum of $11,638.23. c) Internet expenses for the condominium in the sum of $458.36 for the period from September 26th, 2016 to March 1st, 2017.
52In addition to these amounts that were paid solely by Katia, there were contributions of funds that Katia made to Zurab. It is not entirely clear how much of the money that was transferred was for house expenses and how much might have been for other expenses such as food, travel and entertainment.
53Finally, the financial statement that Zurab filed in his divorce proceeding with Anna Shestak makes compelling reading. This financial statement, sworn June 14th, 2016, shows that Zurab is only paying 50% of the internet, the mortgage and the condominium fees for his property. This financial statement is reflected in the financial records provided by Katia, and contradicts Zurab’s evidence on whether Katia was assisting him with the payments for the condominium.
54It is clear from both the nature, and the amount, of the payments that Katia was making significant financial contributions to the maintenance and upkeep of the condominium for the year prior to the parties’ separation. Other than the loan, however, I was not provided with any evidence about any contributions prior to March 1, 2016.
b) The Contributions of Katia’s Parents
55Katia claims that her parents loaned her and Zurab approximately $46,000.00. This included $11,500.00 for the purchase of the condominium and an additional $34,500.00 in other loans.
[56] I start with the $11,500.00 for the purchase of the condominium. Zurab acknowledged that he had been loaned these monies, but he denied that they were for the condominium. I reject Zurab’s assertions for a number of reasons, as follows: a) The timing of the payments into Katia’s account coincide with the purchase date of the condominium. b) There is a certified cheque to the real estate agent from Katia, around the time of the purchase, in the amount of $5,000.00. The receipt I was provided with clearly shows that the monies were paid for the condominium. c) Zurab asserted that he had the money to purchase the condominium on his own, and that it would have come from other sources. The problem with this assertion is that there is no evidence of where Zurab would have obtained this money from. In addition, a review of Zurab’s finances shows that it is unlikely he had other sources of income.
57It is clear, therefore, that this money was loaned to Zurab by Katia’s parents, through Katia’s bank account in Canada. It is also clear that the money was for the purpose of purchasing the condominium. However, it is equally clear that Zurab repaid this money with interest approximately a month before the end of the relationship.
[58] This brings me to the rest of the monies that Katia argues were loaned to Zurab by her parents. Katia claims additional loans in the sum of $32,000.00. I am of the view that none of these amounts are proven as having been loaned to Zurab. I reach this conclusion for a number of reasons: a) Katia claimed that she tracked these payments in a notebook, but the notebook was never produced at trial. As a result, I have no concrete evidence that these payments were loans to Zurab. b) The evidence before me does not establish an actual loan of $32,000.00. Indeed, having spent considerable time reviewing the financial documentation, I am not clear as to how the $32,000.00 number was arrived at, or what the precise sources of funds were.
[59] These two grounds would be enough to defeat the claim for a loan. However, during the course of the proceedings, I also referred the parties to Barber v. Magee (2017 ONCA 558), aff’g 2015 ONSC 8054. In the trial decision, D. Fitzpatrick J. sets out a list of factors as follows (at paragraph 42): a. Whether there were any contemporaneous documents evidencing a loan; b. Whether the manner for repayment is specified; c. Whether there is security held for the loan; d. Whether there are advances to one child and not others or advances on equal amounts to various children; e. Where there has been any demand for payment before the separation of the parties; f. Whether there has been any partial repayment; and, g. Whether there was an expectation or likelihood of repayment,
60Virtually none of these criteria are met in this case. There is no documentation, much less any documentation evidencing a loan. There was no expectation of repayment, and other than the $11,500.00, there were no repayments prior to separation.
61Katia cannot demonstrate that there were any additional loans made in this case, and this claim is dismissed. The only loan that was made, for the condominium or otherwise, was the $11,500.00 that was repaid by Zurab in February of 2017.
c) The Parties’ Understanding
62In testimony, Zurab stated that his relationship with Katia was not serious enough in the fall of 2015 for him to own property jointly with her. As a result, he testified that this condominium was purchased in his name alone and he was intended to be the only owner of the condominium.
63Katia, on the other hand, testified that she was told that the title would be in Zurab’s name only because he had a good credit history and was the one who could get a mortgage. Katia stated that Zurab told her that, because she did not have a stable job she could not get a mortgage. Finally, Katia testified that having only one person on title was a normal circumstance in Russia.
[64] As I have noted above, I approach the evidence of both parties cautiously. However, on this point, I accept that Katia was intended to have some interest in the condominium for the following reasons: a) Zurab’s testimony that his relationship with Katia was not serious enough in the fall of 2015 is inconsistent with the decision of Zurab to borrow $11,500.00 from Katia’s parents to finance the purchase of the home and the willingness of Katia’s parents to lend it to him. b) Zurab agreed to sponsor Katia to become a permanent resident in Canada shortly after the condominium was bought in the category of spouse/partner. c) Zurab and Katia had been living together for more than a year at the time that the condominium was purchased.
65Zurab argues that the relationship was not serious enough when they moved into the condominium. I disagree. This brings me to my conclusions on the marriage. I have concluded that Katia did not know that Zurab was not divorced from Anna when he and Katia participated in the ceremony on July 30th, 2016. I reach that conclusion for a number of reasons.
[66] First, at paragraph 46 of his Affidavit, Zurab stated: 46. Due to the nature of the Sham Wedding, I did not feel it appropriate to invite any of my friends or family to the Sham Wedding. All guests at the Sham Wedding attended the Sham Wedding at the behest of the Applicant.
67The problem with this statement is that Manon was invited to come on the trip to Georgia, and Zurab would have known this. Manon herself testified that she was aware that there was a trip to Georgia for a family dinner, but that Manon did not go because she viewed it as unimportant.
68The statement is also problematic because Zurab’s testimony about his wedding to Anna was that the only one of his family members who was in attendance was his mother. As a result, Zurab’s statement that no one from his side of the family was invited to this event is inaccurate. Zurab’s only relative who attended his wedding to Anna was also invited to this ceremony.
69Second, at least some of the contemporaneous documentation confirms that Zurab was representing Katia as his wife after this wedding took place. For example, there was a December 5th, 2016 note to Gunnebo in which Zurab referred to Katia as his wife. There are other examples of this as well.
70Third, Zurab states that Katia knew about the issues about his separation from Anna throughout their relationship, and knew that Zurab was not divorced. Zurab relies on a series of e-mails to prove this fact. The problem with Zurab’s position is that the e-mails he has tendered do not support it. Zurab provided a series of e-mails that he sent to Katia, but none of them show that she would have known that Zurab was not divorced in the summer of 2016.
71Fourth, Zurab’s explanation as to what happened to result in this “sham” wedding does not accord with either common sense or the evidence I have before me. Zurab’s explanation was that he did not know that a “sham” wedding was being planned until a couple of days beforehand, and that they had “somehow” planned a wedding for sixty people.
72It is unlikely, but possible, that a wedding dinner for sixty people could be planned in nine (9) days without the groom knowing about it until the last couple of days. However, in this case the groom participated in a video demonstrating how the couple met. Portions of that video were shot at Seneca College, and would have had to have been shot prior to the parties journeying to Stavropol for the wedding. I do not find Zurab’s evidence about his lack of knowledge about the wedding to be either credible or believable.
73The one troubling point about the marriage ceremony in Stavropol is that neither side produced, or sought to produce, the documentation that was signed. I was not given a satisfactory explanation as to why there was no marriage certificate (or other documentation) from the Russian ceremony. However, neither side pursued this issue, either through a production request or through cross examination. In particular, Zurab’s counsel did not vigorously pursue this issue in cross-examination. As a result, I do not view it as being significant enough to reach a different determination than the one that I am led to by the preponderance of evidence.
74In light of these factual findings, I am of the view that the relationship between Katia and Zurab was serious enough in the fall of 2015 that they would have bought a condominium together. As a result, I find that they intended to own the condominium together, and that title was in Zurab’s name alone as a result of his concerns about credit history and the ability to obtain a mortgage.
d) The Appropriate Remedy
75This brings me to a consideration of what the appropriate remedy is in this case. The parties did not provide me with significant case-law on the issue of trusts. However, during the course of submissions, I provided them with a number of decisions.
76The key decision in this area is Kerr v. Baranow (2011 SCC 10). In that decision, Cromwell J. considered the issues of resulting trusts and unjust enrichment. Cromwell J. determined that unjust enrichment was a robust vehicle for considering the inequitable distribution of assets when a domestic relationship breaks down. He also set out the framework for a joint family venture, which I will come to shortly.
[77] In Reiter v. Hollub (2017 ONCA 186) at paragraph 26 and Martin v. Sansone (2014 ONCA 14) at paragraph 52 set out a list of four steps that have to be taken to conduct an analysis of an unjust enrichment claim. Those steps are as follows: a) Have the elements of unjust enrichment been made out? b) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied with money? c) If the answer to question 2 is yes, should the monetary damages be quantified on a fee for service basis or a joint family venture basis? d) If, and only if, monetary damages are insufficient, is there a sufficient nexus too the property that warrants impressing it with a constructive trust interest?
[78] The analysis begins with the three factors for establishing whether an unjust enrichment has occurred. Those factors are: a) An enrichment of one party. b) A corresponding deprivation of the other party. c) The absence of a juristic reason for the enrichment.
79In this case, Zurab has been enriched, and Katia has been deprived. However, the extent of the enrichment (and corresponding deprivation) is important. The loan of $11,500.00 that was made by Katia’s parents for the purchase of the house is not part of the calculation. It was repaid, prior to separation, with interest.
80The only amounts that are covered by the unjust enrichment analysis are the amounts that Katia paid on account of utilities, taxes and internet. These were expenses directly related to the maintenance and upkeep of the condominium, and Zurab benefitted from those expenses, as he has all of the equity that accumulated in the condominium.
81This brings me to the third part of the test, whether there was a juristic reason for the deprivation. I am of the view that there was no juristic reason for this deprivation for two reasons. First, these monies were not provided to Zurab either as a gift or under a contract. In particular, there was no lease that Katia signed and no obligation on her part to pay rent. Second, there was an expectation that the parties would own this condominium together.
[82] Once it is determined that there was an unjust enrichment, the question then becomes what is the appropriate remedy. In this case, it is Katia that must demonstrate that a proprietary award is necessary. In my view, there is no basis for a proprietary award in this case for a number of reasons: a) There is nothing special about this property that was identified in evidence. b) The contributions made by Katia are relatively limited, and only covered a very short period of time. Zurab has owned the property for more than three years, and Katia only made contributions for a year of that time period. c) There is no significant evidence demonstrating what the change in value of the property would be and, therefore, it is difficult to quantify.
[83] Having determined that a monetary remedy is sufficient in this case, I come to the issue of how this remedy should be quantified. In considering that issue, I am mindful of Cromwell J.’s observations at paragraph 48 of Kerr, supra, where he stated: First, the fact that many domestic claims of unjust enrichment arise out of relationships in which there has been a mutual conferral of benefits gives rise to difficulties in determining what will constitute adequate compensation. While the value of domestic services is not questioned (Peter; Sorochan), it is unjust to pay attention only to the contributions of one party in assessing an appropriate remedy. This is not only an important issue of principle; in practice, it is enormously difficult for the parties and the court to “create, retroactively, a notional ledger to record and value every service rendered by each party to the other” (R. E. Scane, “Relationships ‘Tantamount to Spousal’, Unjust Enrichment, and Constructive Trusts” (1991), 70 Can. Bar Rev. 260, at p. 281). This gives rise to the practical problem that one scholar has aptly referred to as “duelling quantum meruits” (J. D. McCamus, “Restitution on Dissolution of Marital and Other Intimate Relationships: Constructive Trust or Quantum Meruit?”, in J. W. Neyers, M. McInnes and S. G. A. Pitel, eds., Understanding Unjust Enrichment (2004), 359, at p. 376). McLachlin J. also alluded to this practical problem in Peter, at p. 999.
84In the facts of this case, the monetary remedy is going to be the same regardless of whether it is quantified on a fee-for-service basis or a joint family venture basis. As a result, I will only briefly touch on whether this relationship amounted to a joint family venture.
[85] I am of the view that it did. I reach this conclusion for the following reasons: a) The mutual effort in this case, from the fall of 2015 to the end of the relationship, is obvious. The parties were both working at least part time, and were both working to support the family. Both Katia and Zurab were making financial contributions to the family unit. b) The economic integration of the parties was also significant by this time period. The parties had joint accounts, Katia had been included on Zurab’s insurance through work, and they had otherwise integrated their finances. c) I have covered the actual intent in the previous section. It was clear that they intended to own this condominium together, and it is equally clear that they intended to build a life together. d) Finally, there is the priority of the family. Again, it appears to me that Zurab and Katia had decided to put each other first as they moved forward to build a life.
86This brings me back to the remedy that should be granted in this case. As I have noted at paragraph 82, above, a monetary remedy is sufficient in this case. Further, there is the question as to whether it should be quantified on a fee-for-service basis or a value survived basis.
[87] On the evidentiary record before me, it is not possible to determine what the value survived of the property is for two reasons: a) I do not have sufficient evidence to determine what the current value of the condominium is. b) Even if I did have that evidence, it would still not be sufficient. Katia only made contributions to the condominium between March of 2016 and March of 2017, and Zurab has borne the expense of all of the property for the remainder of the time that he has owned it. As a result, providing Katia with a remedy that measured the value survived of the entire condominium would not reflect the relative contributions that each party made.
88As a result, the only appropriate remedy is to provide Katia with a monetary remedy on a fee-for-service basis for the money that she provided to Zurab. The question is then how much money should be provided to Katia.
89The maximum amount that should be provided to Katia is the amount that she contributed to the maintenance and upkeep of the condominium. That amount is approximately $12,500.00. In my view, however, payment of this full amount would overcompensate Katia. At this point in the analysis, I need to consider the mutual conferring of benefits, as discussed in Kerr, supra (see paragraph 105). This means that I must give some weight to the contributions that Zurab has made to supporting Katia.
90Although I acknowledge that Katia, and her mother, may have done some work on improving the condominium (such as painting), Katia received benefits (such as shelter) from Zurab’s ownership of the condominium. In addition, there were living expenses and other costs, and it is clear that these were absorbed by both parties.
91In the result, I am of the view that Katia should be provided with $6,000.00 for her payments for condominium related expenses. I note that this amount would have been due in March of 2017, so Katia is entitled to pre-judgment interest on this amount between the date of separation and the date that this judgment is released.
Issue #2 - Spousal Support
92Katia and Zurab were not formally married, and do not have children together. Therefore, in order to determine whether Katia is entitled to spousal support from Zurab, I must first determine whether they cohabited for a sufficiently long period of time to trigger a potential obligation for spousal support. Then, if that potential obligation exists, I must consider whether Katia has entitlement to spousal support. Finally, if Katia has entitlement to spousal support, I must determine the quantum of that support.
a) The Length of the Conjugal Relationship
[93] Katia can establish that she is eligible to receive spousal support if she meets the conditions in the definition of spouse in section 29 of the Family Law Act R.S.O. 1990 c. F.3. That definition states: “spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.
[94] The term cohabit is defined in section 1 of the FLA, as follows: “cohabit” means to live together in a conjugal relationship, whether within or outside marriage”
95Katia and Zurab do not have any children together. Therefore, Katia must show that she and Zurab were in a conjugal relationship for three years or longer.
96The parties agree that they were in a conjugal relationship within the meaning of section 29 of the FLA from at least October 1, 2014 to March 8, 2017. This is a period of just less than two and a half years. The parties also agree that they were in an intimate relationship for most of the time period between March of 2012 and March of 2017. The question is whether these other periods also count as living in a conjugal relationship.
97There are no bright line tests for what amounts to cohabiting. The fact that a couple does not live under the same roof does not mean that they are not in a conjugal relationship (see Hodge v. Canada 2004 SCC 65 at paragraph 42). In order to determine whether the parties are living in a conjugal relationship, a whole series of factors must be considered by the Court.
[98] In Y.S. v. S.B. (2006 ONCJ 162), [2006] O.J. No. 1824 (O.C.J.), Dunn J. made the following observations about cohabitation and conjugal relationships: 61 When does a person become a “spouse” within the meaning of the Act? It is not just in living together or having sexual congress or sharing expenses or providing childcare. These acts taken alone, or even together, will not unequivocally create spousal relations. Each of these attributes were or could have been present in the parties’ relationship. However, for a spousal relationship, what is needed is a consensual; acceptance by the two people of each other as spouses and so declared by each person to the other by his or her words and actions. From an evidentiary standpoint, the relationship is clearer if the persons’ words and actions showing commitment to each other, are also made to other persons. Even after hearing seven persons in this case, including the parties, it was not evident to me that they intended to be spouses. I concluded that the applicant was a co-tenant with the respondent, a good friend to him and that, at some time, she was paid to be a baby-sitter. Yes, the respondent, as a good friend even provided financially for the applicant at times.
99In conducting this analysis, the Courts have considered a series of factors including factors that fall into categories such as social, shelter, services and societal perception of the relationship. A helpful listing of these factors is provided in Yonathan v. Matrook (2015 ONSC 1984).
100In essence, for a conjugal relationship to exist, it requires an acceptance by both parties that they are spouses. (see also Derakhshan v. Narula 2018 ONSC 537 and Broadbear v. Prothero 2011 ONSC 3656). This, of course creates complications after the fact when one party has an interest in claiming a longer spousal relationship and the other party wishes the relationship to be shorter. That is the case here.
101It is difficult to tell exactly what went on between the parties for two reasons. First, they told substantially different stories. Second, the documentation that was provided was incomplete and ambiguous.
102I start with the stories that each party told about the length of the relationship. Katia stated that they have been in a conjugal relationship continuously for a period of five years from March of 2012 to March of 2017.
103Zurab, on the other hand, stated that the parties had a “strictly sexual” relationship from March to October or November of 2012, and that this “strictly sexual” relationship with Katia was resumed in April of 2013. Zurab also testified that they would see each other on average one time per week. On Zurab’s evidence, the relationship remained a strictly sexual one until Zurab separated from Anna in August of 2014.
104Resolving this factual dispute is difficult, and requires a consideration of the incomplete, and sometimes ambiguous, documentation that I was provided with. There are a number of points that need to be canvassed. First, as will be seen, I do not accept the testimony of either of the parties on the length of their relationship.
105I start with Katia’s position that she and Zurab were in a continuous relationship between March of 2012 and March of 2017. The problem with this evidence is the documentation that I was provided from social media about Katia’s connections with Danil Tankov. Katia testified that she and Mr. Tankov were just friends. However, the photographs that were tendered suggest at least a very close friendship, including one where Mr. Tankov, Katia and Inna went on a trip to Niagara Falls. In my mind this suggests more than just a friendship.
106My conclusions on this are fortified by Inna’s testimony. She testified that she knew who Dainl Tankov was, but that she did not recall meeting Mr. Tankov, and does not recall coming to Canada in 2012. However, the evidence shows that Inna was in Canada and spent time with Mr. Tankov. In my view, Inna was attempting to minimize Katia’s relationship with Mr. Tankov, as Inna was aware that Katia had had a relationship with him.
107In addition, Katia tenders the 2012 lease on the apartment as proof that she and Zurab were living together. I reject this evidence for two reasons. First, there are problems with whether Zurab was actually on the lease, as he did not sign it at the time it was entered into. Indeed, I am of the view that Katia added his name to the lease afterwards, as the handwriting appears different. Second, as I have noted above, there is the fact that Katia appears to have been involved in something more than a friendship with Mr. Tankov.
108However, Zurab’s position that he ended his affair with Katia in October of 2012, and did not re-start it until April of 2013 is inconsistent with the text messages that were filed. In particular, Katia filed an interpretation of a text message dated November 20th, 2012 in which Zurab professes his love for Katia and his desire to be with her constantly. This is inconsistent with Zurab’s testimony of either a purely sexual relationship or of a lengthy cessation in that relationship.
109I reject Zurab’s assertion that his affair with Katia ended in October of 2012 and did not re-start until April of 2013. There was, at most a brief hiatus in the affair. This conclusion, then brings me to Zurab’s assertion that he did not have a serious relationship with Katia until they decided to move in together in August of 2014. His evidence, it must be remembered, is that he only spent approximately one night a week with Katia until they moved in together in August of 2014.
110I will review my specific concerns with Zurab’s factual assertions below. However, I note that this assertion is contrary to common sense. It is unlikely (but possible) that Zurab had a casual relationship with Katia until August of 2014, and then suddenly decided to move in with her. It is far more likely that the relationship had developed significantly prior to August of 2014.
111The analysis of whether Zurab and Katia had started to cohabit prior to 2014 must account for the fact that they have diametrically opposed interests. It is in Zurab’s financial interest for the period of cohabitation to be under three years. Conversely, it is in Katia’s financial interest for the period of cohabitation to be more than three years. Given these interests, and the credibility problems that I have identified, their evidence needs to be approached with considerable caution.
[112] In determining this issue, I also note that much of the documentation that the parties filed is ambiguous. Some examples of these ambiguities are as follows: a) Zurab filed his driver’s licence, showing that, in 2014, he was living at the home that he had previously owned with Anna. However, Katia also filed a driver’s licence with Zurab’s photo on it. This driver’s licence showed Zurab as living at an address in Holland Landing, a place that Zurab claims never to have lived. It had his photograph on it, and Zurab did not deny in evidence that he had obtained this driver’s licence. If Zurab is prepared to obtain a driver’s licence showing an address where he has never lived, then I am not prepared to give the address on his driver’s licence any weight in assessing where Zurab lives. It also raises questions about Zurab’s credibility more generally. b) The leases that Katia filed are also ambiguous. There are problems that I have already discussed with Katia’s 2012 lease, in that I am not persuaded that Zurab actually was included in that lease in 2012. Then, it is common ground that Zurab was not a party to the lease that Katia signed in 2013. The leases do not answer, or even assist in answering, the question of whether the parties were cohabiting before September of 2014.
113This brings me back to a discussion of the documents that are not ambiguous. One of the most helpful set of documents was Zurab’s credit card statements. It must be remembered that Zurab testified that, prior to moving in together in October of 2014, he was only in Scarborough visiting Katia once a week at the most. He also testified that he worked in Oakville and his family was in that area. As a result, most of Zurab’s activities would have been in the west end of the GTA.
114His credit card statements do not support his testimony. Between February 11th, 2014 and August 14th, 2014, there are only incomplete records. Further, Zurab did not use his credit card every day. However, the records I do have suggest (for example) that in the 28 days between February 11th, 2014 and March 11th, 2014, Zurab was in Scarborough, Toronto or Markham on at least 12 separate days. The other records that are in evidence show at least equivalent amounts of time being spent in Toronto.
115On the facts that I have, there is no explanation, besides Zurab’s relationship with Katia, for these transactions in Toronto, Scarborough or Markham. Although these credit card transactions only provide a partial picture, they are contemporaneous records. In my view, they support Katia’s assertion that the parties were spending considerable amounts of time together in 2014.
116There are also some facts that are not in dispute. First, it is not disputed that Zurab and Katia went to New York for a week around New Years’ Day 2014. In my mind, this type of significant trip is different than spending one or two nights a week at someone’s apartment. This trip is suggestive of a close boyfriend-girlfriend relationship at a minimum. This is particularly true when Zurab’s evidence that he was still living with Anna and only seeing Katia once a week is considered. This trip also brings into serious question Zurab’s statement that he had a purely sexual relationship with Katia until October of 2014.
[117] Further, there are the documents that were filed with Immigration Canada. These documents do not entirely support Katia’s version of events. Further, I was not provided with the complete immigration file. However, there are two conclusions that can be drawn out of the limited documentation I do have, as follows: a) Between 2012 and early 2014 there were some bumps in the parties’ relationship. As a result, it is difficult to conclude that they were “cohabiting” prior to the end of 2013. b) By the time the parties got to early 2014, the relationship appears to have become serious and significant to both of them and the bumps seemed to have disappeared. This suggests that they were cohabiting by the beginning of 2014.
[118] Then, there is the correspondence between Anna and Zurab in the time period before their separation in September. Zurab argues that this correspondence indicates that he remained in a relationship with Anna. I disagree. There are a number of these documents that suggest that Anna and Zurab had amicably separated prior to August of 2014. I note the following three examples: a) Anna took a trip to Germany in April of 2014. It is clear from the e-mails that this trip was a solo trip, and that Zurab remained behind. The content of the e-mail is more suggestive of a separated couple managing their children. b) In an e-mail dated September 18th, 2014, Anna asks Zurab for his contribution to the children’s medical expenses, including for July of 2014. If Anna and Zurab were still together in July of 2014, it would not be necessary for Anna to ask for reimbursement of these expenses. c) In an e-mail dated April 22nd, 2014, Anna states “Victoria Day long weekend. I would like to travel somewhere.” Both the context and the tone of the e-mail suggest that she is seeking to have Zurab tend to the children while she has some time away. Again, this is more suggestive of a separated couple managing their children.
119In addition to these three examples, there is the transfer of Zurab and Anna’s matrimonial home. Zurab states that the separation took place on August 10th, 2014 (a Sunday). However, the documentation also reveals that Zurab transferred his interest in the matrimonial home to Anna on August 14th, 2014, a mere four days later. Again, it is unlikely that the parties could decide to separate on a Sunday and deal with such a significant asset of the marriage only four days later, especially because the legal paperwork had to be completed. Again, this fact suggests that Zurab and Anna had separated well before August of 2014.
120In this analysis, I should address the trips that Zurab and Anna took to Tibilisi, Georgia and Pinery Provincial Park in Ontario. These trips were in 2014. Zurab suggests that these trips demonstrated that he and Anna remained spouses. The trip to Georgia, in particular, was to baptize the children and to visit family. It is quite possible that the parties went on this trip, even though they were separated. Similarly, it is possible that the parties went camping with their children, although they were separated. In my view, these trips are not dispositive of Zurab continuing to be in a conjugal relationship with Anna.
121There are also trips that were taken prior to 2014, as well as earlier postings from Facebook and other social media sites. None of this evidence clearly supports Zurab’s assertion that he and Anna were continuing to cohabit from 2013 through to August of 2014. I would make three observations about this evidence. First, it is ambiguous at best. Second, there is very little documentation that is clearly dated after the trip to New York at the end of 2013. Third, some of the documents that are dated after the end of 2013 only have handwritten dates from Zurab on them. Given the credibility issues with Zurab’s testimony, I am not prepared to accept those dates as authentic.
122Finally, there are Zurab’s tax returns from 2013 and 2014. When these tax returns were originally filed, they listed Zurab as having been separated from Anna. After the fact, Zurab wrote to Revenue Canada that there was an error and that the tax returns should have listed him as having been married during that time period. I am not persuaded by this after-the-fact evidence. I find that the original tax returns more clearly reflect the reality of the relationship between Zurab and Anna.
[123] The only document that I have that unambiguously suggests that Zurab remained in a conjugal relationship with Anna is the consent Order of Coats J. dated September 27th, 2016. Paragraph 1.5 of that Order states that “Zurab and Anna separated between August and September, 2014.” There are three problems with this assertion, as follows: a) It is inconsistent with Zurab’s evidence that he had a clear separation date of August 10th, 2014. The Order is not clear on a specific date, and there is no explanation as to the difference. b) The Order is inconsistent with documentation that suggests that Anna and Zurab were separated prior to August 10th, 2014. c) The Order was a consent Order, and would have been prepared in a way that supported Zurab’s position. I am not prepared to accept it as anything more than a self-serving declaration from Zurab as to his date of separation.
124In the end, I conclude that Katia and Zurab were in a conjugal relationship by sometime around New Year’s Day 2014. I start with Zurab’s relationship with Anna. It is possible that Zurab and Anna remained in a conjugal relationship until sometime in mid-2014, and I did not have the advantage of hearing testimony from Anna, as neither party chose to call her as a witness. However, the bulk of the evidence suggests that Zurab and Anna were separated by the end of 2013 and I so find.
[125] Then, there are the indicia of a conjugal relationship between Zurab and Katia. To summarize, I note the following: a) The parties agree that they were in a conjugal relationship by October of 2014. b) The parties were prepared to take a lengthy trip to New York together at the end of 2013, and share the expenses of that trip. c) Zurab was spending considerable time, as well as considerable money, in Scarborough, Toronto and Markham by early 2014. On his version of events, there is no explanation for these expenses. Therefore, I infer that the expenses were related to Zurab’s relationship with Katia. These are joint expenses within the meaning of the test for a conjugal relationship, as set out above. d) Given the application to Immigration Canada, it suggests that they were holding themselves out as a couple to friends and relatives by early 2014, although the application is ambiguous about when the parties started to live together.
126As I have noted, it is difficult to determine exactly what happened when the testimony is not entirely credible, and the parties have financial incentives to tell different stories. However, the facts support an inference that Zurab and Katia began to cohabit at the end of 2013. As a result, the parties have been in a sufficiently long relationship that Katia is entitled to advance a claim for spousal support.
127As a final point on this issue, I should briefly deal with the ambiguity in whether the parties actually lived together before August of 2014. In my view, that is not relevant to my determination. As I noted at the outset of this analysis, it is possible for the parties to be in a conjugal relationship without living under the same roof.
b) Entitlement to Spousal Support
128There is no claim, and no basis to claim, spousal support on a contractual basis in this case. As a result, entitlement to spousal support can be established by Katia through either a compensatory basis or a needs basis. I will deal with each in turn. First, however, I must address the two arguments that Katia advances as to why support should be indefinite.
Indefinite Spousal Support?
[129] Katia’s counsel asserts that she should be entitled to spousal support on an indefinite basis. He points to two factors to support this assertion, as follows: a) Katia’s medical condition, which counsel argues is as a result of Zurab’s conduct. b) Katia is a foreign national, and it is unlikely that she will be able to work in Canada.
[130] I reject both of these arguments. I start with the medical condition. In paragraph 42 of her Affidavit, Katia states: The Wife [Katia] could not work past March 8, 2017 after the Husband [Zurab] had assaulted her, due to her feeling emotionally overwhelmed and having slid into depression and anxiety.
131There are two problems with Katia’s position, both of which are fatal. First, I acknowledge that there was some medical documentation filed showing that Katia suffered from anxiety and depression. However, nowhere in the medical documentation was there any indication that these medical conditions prevented Katia from working.
132In assessing a claim of total disability, a trier of fact must consider the body of evidence that has been tendered by the party making the claim. In addition, the trier of fact must consider whether any inferences should be drawn about evidence that was likely available to a party but not put before the Court (see Panagopoulos v. Fu 2018 ONSC 1048 at paragraph 90).
133In this case, no doctors were called, and no evidence or reports supporting total disability were tendered by Katia from any of her doctors. As a result, the only inference I can draw is that had this evidence been provided, it would not have supported Katia’s claim of total disability.
134Second, and more importantly, Katia actually did work after the relationship ended. In that regard, I accept Katia’s evidence that shows that she earned $16,224.00 in 2016, and that some of this money was earned after the separation. Indeed, as part of Katia’s financial statement sworn on October 14th, 2018, she attached a pay stub from Master Plus International Inc. This pay stub shows that between June 1st, 2017 and June 30th, 2017, Katia worked 156 hours, which approximates full time work.
135I reject Katia’s claim that she is unable to work because that claim is unsubstantiated by any medical documentation and contradicted by the other evidence before me.
136Then, there is Katia’s immigration status. I understood Mr. Goudimenko to be arguing that Katia was not yet a permanent resident in Canada, and that her immigration status might be an impediment to her ability to find and retain employment. Again, there are two problems with this argument, each of which is fatal.
[137] First, as noted in paragraph 134, Katia has worked since the end of the marriage. Second, if Katia is unable to work in Canada, it was up to her to lead evidence to prove that fact. I received no evidence, and particularly no documentary evidence, that Katia is not able to work in Canada. Indeed, the evidence that was filed demonstrates that Katia has been able to work in Canada. I note the following: a) Katia’s 2014 income tax return shows that she earned approximately $6,000.00 in income b) Katia’s 2017 Income tax return shows that she earned income of approximately $16,244.00 in 2017, including work that she did after the end of her relationship with Zurab. c) Katia’s own Affidavit states (at paragraph 38) that she worked at a golf club and night shifts at a restaurant after she finished her practicum at Seneca.
138As a result, there is no basis to conclude that Katia is unable to work. In my view, Katia has been able to work since the time of separation. Indeed, it appears that in June of 2017 she was working close to full-time hours, and earning minimum wage.
139This brings me to a consideration of the compensatory and needs basis for support.
The Compensatory Basis
140The compensatory basis can be easily dealt with. The rationale behind compensatory orders of spousal support was explained in Moge v. Moge (1992 SCC 25). Compensatory support orders are granted to recognize the sacrifices that were made during the course of the relationship by one spouse that either negatively affected the spouse claiming support or provided an advantage to the spouse from whom support is claimed.
141Katia states that she should be entitled to spousal support on a compensatory basis because Zurab controlled the work that she did. In particular, Katia states that Zurab did not like that she was working afternoons/evenings at a golf course, and he wanted her to start a cleaning business.
142I start by noting that I have no evidence on the pay that Katia was earning at the golf course job, or what the other terms and conditions of employment were. However, even if these facts are true, they are still not sufficient to establish an entitlement to spousal support on a compensatory basis.
143Other than providing money for the condominium and for joint expenses, I do not see any evidence that Katia made sacrifices during the course of the relationship, or that Zurab was advantaged by those sacrifices.
144In that regard, I should briefly comment on the business that Katia ran. On her evidence, this was a business that Zurab also was involved in. The evidence on this business, including who did what, and how much money the business made was contradictory and incomplete. However, in my view that does not matter. Any issues in terms of the financial contributions that Katia made to the joint family venture, and the accumulation of wealth during that joint family venture, are addressed in my analysis of the joint family venture/constructive trust issues. Therefore, it is not necessary to resolve the question of who owned the business.
The Needs Basis
145This brings me to the needs basis for spousal support. In Gray v. Gray (2014 ONCA 659) the Court of Appeal explained the needs model of support as follows (paragraph 27):
146One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.
147The analysis in this case requires me to consider whether Katia can support herself, and whether she can maintain her standard of living on her own.
148The evidence that I have suggests that, early on in the relationship, Katia was working at a golf club and a restaurant. She stopped in order to focus on the business that she had established and did so at Zurab’s request, as he did not like Katia working evenings.
149After the relationship ended, Katia then moved on to working at minimum wage for a company that worked with immigrants. Katia’s work was at minimum wage, and as discussed at paragraph 134 above, it was full-time work. In addition, Katia has post-secondary qualifications from Seneca College. Although the precise nature of the program was not discussed in evidence, it is clear that Katia should be able to earn an income in excess of minimum wage, and that she was able to do so from the moment of separation.
150However, Katia’s standard of living was higher when she was living with Zurab, and it has been negatively effected by the end of the relationship. As a result, I am of the view that Katia is entitled to a modest amount of transitional spousal support. I will now consider the quantum of that support.
c) Quantum of Support
151In assessing the quantum of support, I am of the view that income should be imputed in this case, for the reasons set out in the previous section. I am further of the view that income should be imputed in the sum of $30,000.00 per year.
152I reach that $30,000.00 number by considering that Katia was able to make $13.00 an hour in 2017, before the minimum wage was raised to $14.00 per hour. The minimum wage on a 40 hour week produces an annual income of $29,120.00, and on a 35 hour week it produces an income of $25,480.00. Katia has post-secondary education. As a result, assuming that she would be able to make modestly more than minimum wage is not an unreasonable assumption.
153In calculating the support payable by Zurab, I must also be mindful that he is paying child support to Anna for the two children of his first marriage. It was not clear to me precisely what the amount Zurab was paying. However, his financial statement sworn on June 26th, 2017 lists support for the two children in the amount of $777.00. There was also some suggestion that a modest additional amount (approximately $100.00 per month) was being paid on account of section 7 expenses.
154In the absence of any concrete information about the section 7 expenses, I conclude that I should analyze Zurab’s expenses based on the actual table amount of child support given his income. Zurab’s Line 150 income is approximately $54,800 as of the end of 2017. This produces a table amount for support of $881.00 for the two children of his marriage to Anna.
155The Spousal Support Advisory Guidelines state, in section 12.3.1 that prior support payment should be considered in calculating the spousal support. In this case, therefore, I should take the child support into account. Because spousal support is paid on before tax income and child support is paid on after tax income, the SSAG’s say that I should gross up the child support payments to account for taxes and then deduct the gross amount from income.
156Assuming a marginal tax rate of approximately 28%, the annual amount of child support grossed up is approximately $12,100.00. This leaves Zurab with a net income, for spousal support purposes, of $42,600. I should pause to note that I considered inviting the parties back to make further submissions on this point, but decided not to for two reasons. First, as will be seen the amounts are so minimal that the submissions would have been more costly to both sides than any differences. Second, the parties had ample opportunity to address this issue in their evidence and submissions.
157I was not provided with SSAG calculations for this file. As a result, I ran the SSAG calculations based on the analysis above. They produce spousal support ranges from $52.00/month at the low end to $69.00 per month at the high end. With a duration of 1.6 to 3.25 years.
158In my view, given Katia’s very young age and her ability to work, as well as Zurab’s obligation to pay child support on account of his two other children, the amount of spousal support should be at the low end of what the SSAG’s produce, both in quantum and in duration.
159As a result, I find that a payment of $55.00 per month for a period of two years is the appropriate amount of support in this case. Since we are now two years post-separation, Zurab’s spousal support obligation will end with the payment of $1,400.00 as a lump sum. The actual calculation is slightly less, but the lump sum provides something for interest, and leaving the parties to perform the interest calculation on this amount will result in more expenditure than the actual difference between what I have fixed as the interest and what the actual calculation would produce.
Issue #3 - Entitlement to General Damages?
160Katia claims general damages in the sum of $50,000.00 on account of Zurab’s allegedly cruel conduct. In order to determine whether Katia is entitled to general damages, I need to determine whether the cruel conduct actually happened, and what effect it had on Katia, if any.
a) The Alleged Conduct
[161] Katia alleges that she was the subject of three separate assaults by Zurab, as follows: a) An incident where she was pushed and hit by Zurab during the course of their trip to New York in late 2013 or early 2014. b) An incident in January of 2017 when the parties allegedly got into an argument over food preparation for a trip. This argument allegedly happened in the presence of Manon and Inna. c) The incident on March 8th, 2017, when the parties got into an argument of some sort. This argument escalated, and resulted in the end of the relationship.
162I will deal with the March 8th, 2017 incident separately. In terms of the first two incidents, I conclude on a balance of probabilities that they did not happen. I reach that conclusion based mostly on inconsistencies in Katia’s evidence.
163First, when Katia discussed her concerns with the police in March of 2017, she did not mention the incident that allegedly took place at the end of 2013. I find that a significant omission given that Katia was describing her concerns to the Police in detail.
164In addition, I note that Katia provided no context to either of these incidents. Given the tensions that had manifested in the parties relationship, it is possible that something happened in January of 2017. However, I would expect Katia to have provided more details about when the incident took place, what happened, and what led up to the incident.
165In addition, the January 2017 incident allegedly took place in front of Manon and Inna. There was no mention of this in the cross-examination of Manon, which raises questions about whether the incident actually took place.
166Given all of these concerns, I conclude that neither of the two previous incidents took place.
167The third incident, on March 8th, 2017, is more complicated. On the night in question, the parties agree that they were having an argument that escalated, and that resulted in the end of their relationship.
[168] In her Affidavit, Katia states (at paragraphs 51-53): 51. On March 8, 2017, an argument happened between the Husband and the Wife on the issue of finances and the issue of the Husband’s “pending” divorce from the Husband’s former wife Anna Shestak. 52. The Husband threatened the Wife that he would kill her whether she left him or not. 53. The Wife ran out of the condo and hid in a neighbouring building.
169In her evidence at trial, Katia added the fact that Zurab had assaulted her during the argument on March 8th, 2017.
170Zurab, on the other hand, stated that they had a verbal dispute on March 8th, 2017. This dispute started with a discussion about the Lexus, and Katia’s request that title be transferred to her. It then moved on to Katia’s demand that Manon leave the apartment. Zurab, in turn, asked Katia to move out of the apartment.
171In the end, I conclude that there was a significant altercation between the parties. I also conclude, on a balance of probabilities, that Zurab threatened Katia during the course of this conversation. I am of the view that Zurab’s description of what happened is not reliable because he minimizes his own responsibility for events and because it is clear that the relationship between the parties had deteriorated and things had become heated between them.
[172] However, I do not accept Katia’s evidence that Zurab assaulted her for the following reasons: a) The assault was not mentioned in the original police report. The police only charged Zurab with assault based on the January 2017 incident. b) The assault is not mentioned specifically in Katia’s Affidavit.
173Then, there are the subsequent incidents. Each side took the view that the other side had behaved poorly in the period from March 8th, 2017 to when the parties had finalized new living arrangements in April of 2017. It is necessary to step back and review the facts in this time period.
174As will be remembered, Manon was living with the parties on March 8th, 2017. As a result of the incident that took place that day, Zurab was criminally charged. As part of his bail conditions, he was not allowed to go back to the apartment.
175In mid-March, Katia’s mother Inna arrived for a visit, and she also stayed at the apartment. There was an altercation between the parties, and each side blames the other for this altercation. It is not necessary for me to assign blame, except to note that both sides behaved in a less than exemplary way and that there were probably threats exchanged by both sides in the time that Inna, Katia and Manon lived in the condominium.
176Inna, Katia and Manon continued to live in the apartment for a period of time. There was obviously tension between the parties. However, I do not need to determine every incident that happened, except to note that none of the three people in the condominium behaved properly.
177The next significant event was on April 3rd, 2017 when Zurab had the locks changed after Katia went out one morning. Katia obtained the assistance of the Peel Police, and had the locks changed back. Katia and her mother continued to live in the condominium for approximately another week.
178Katia was advised by Zurab’s counsel, through an e-mail, that Katia did not have the right to occupy the condominium as she was not a spouse, the parties had not been in a relationship for more than three years, and that she was not on title to the property. Zurab’s counsel also shared this information with the Peel Police and requested that the Peel Police cease assisting Katia with her efforts to remain in the condominium.
179The Peel Police accepted Zurab’s position and Katia was then evicted from the condominium on April 11th, 2017. She was subsequently permitted to return to the condominium and obtain her belongings under police supervision.
180In the meantime, Zurab had his bail conditions changed so that he could go back and live in the condominium once Katia had been evicted.
181In my view, this series of events shows that there was considerable animosity between the parties. It also shows that both Manon and Inna were taking their children’s position, and were behaving inappropriately towards each other. It is worth noting that in the testimony before me Inna had more understanding than Manon that the behavior was not appropriate.
182However, there are two other points that flow from this summary. First, neither party behaved perfectly in these circumstances, which is understandable given the animosity. Second, Zurab was quite properly using his legal remedies in order to obtain sole possession of the condominium.
183In the circumstances, it is difficult to find that Zurab did anything improper in this time period beyond the threats that he made to Katia on March 8th, 2017.
184I should note that the issues flowing from Zurab’s arrest on March 8th, 2017 were addressed through a peace bond that was entered into at the end of the trial. Zurab’s testimony was that the charges were withdrawn in their entirety. While that is a true statement, it is also incomplete. The withdrawal required Zurab to adhere to the conditions in the peace bond.
b) The Effect of this Conduct on Katia
[185] In my view, the effect of this one incident on Katia is far less significant than claimed by her. While the threats that Zurab made are a significant issue, I am of the view that the overall effect on Katia of these incidents was minimal. I reach that conclusion for the following reasons: a) Katia has overstated Zurab’s misconduct. b) Katia testified that she was prescribed medication and advised to go to psychological rehabilitation by her doctor. However, no evidence of these recommendations was filed in Court. Indeed, I do not have any significant information from Katia’s doctor on these incidents.
186In essence, there is one incident where Zurab threatened Katia during the course of an argument. That incident arose in the context of a deterioration of a relationship and was followed by poor conduct on the part of Katia and Inna towards Manon, as well as poor conduct on the part of Manon towards Katia and Inna.
c) Conclusions
187Katia seeks damages for Zurab’s threat. The amount sought was $50,000.00, but that amount was based on all three incidents being proven.
188The one fact that is in favour of a damages award for Katia is that Zurab threatened her. However, the conduct that Katia exhibited, particularly towards Manon, is also of concern to the Court.
[189] I am not prepared to provide Katia with an award of general damages in this case for the following reasons: a) There was only one threat, and no physical violence of any sort was proven. b) The threat arose in the middle of an argument that occurred during the deterioration of the parties’ relationship. c) All of the parties behaved badly at the end of this relationship, and it is arguable that both sides made threats of various sorts. It would not be appropriate to award one party damages in these circumstances.
[190] Although it was not touched upon in closing argument, I will also briefly address the question of whether any non-contact or non-harassment orders should be granted to either side. In my view, they should not be for the following reasons: a) It is clear that the parties have moved on from each other, and that this relationship is over. b) It is clear from the evidence that the parties do not wish to have any further contact with each other. c) There was no evidence of any direct contact between the parties after April of 2017, so further Orders are not necessary. d) A peace bond was ordered against Zurab, and there was no evidence that he did not comply with that peace bond.
Other Issues
[191] There are a couple of other issues that arose either on the pleadings, or during the course of the trial. Those issues are as follows: a) The purchase and ownership of a Lexus. b) The alleged theft of Zurab’s hard drive and the alleged theft of Katia’s IPod. c) Katia’s claim that there were other chattels that she was not compensated for, and that Zurab kept.
192I will deal with each issue in turn.
a) The Purchase and Ownership of a Lexus
193Katia claims that she sold the BMW that she owned and used the proceeds to purchase a Lexus. She also claims that she provided Zurab with funds to pay for the Lexus. The ownership of the Lexus is in Zurab’s name, and the financing contract (for approximately $20,000.00) is also in his name. Katia claims, however, that this asset is hers.
[194] I reject Katia’s claim for the following reasons: a) Katia made inconsistent statements in her pleadings and Affidavit about when the BMW was sold and the Lexus was purchased. b) One key transaction that Katia pointed to was in January of 2016 when she transferred several hundred dollars to Zurab allegedly on account of the Lexus. However, the Lexus was not purchased until April of 2016, so this transaction cannot be related to the Lexus. c) Inna also testified that she kept a record of the amounts that were paid on account of various expenses, but that record was not produced.
195Accordingly, this claim is dismissed and I find that the Lexus is beneficially owned by Zurab.
b) The Alleged Theft of Zurab’s Hard Drive
196Zurab claims that his hard drive was stolen by Katia at some point during the time that Katia lived in the condominium after they separated on March 8th, 2017. There is no proof that this item was stolen, and there is no quantifiable loss that flows from the alleged theft, even if it took place.
197Similarly, Katia claims that Zurab stole an IPad from her after she moved out of the condominium. Again, there is no proof that this item was stolen, and there is no quantifiable loss that flows from the alleged theft, even if it took place.
c) Katia’s Claim for Other Chattels
198As part of the documentation in this claim, Katia filed a long list of chattels that she claims she was not compensated for when the parties separated. She has also provided receipts for the purchase of some, but not all of these items.
199I am not prepared to allow a claim for any of these items for three reasons. First, Katia had an opportunity to return to the condominium and take anything that was hers after separation. She took all of her items, and there is no basis for claiming any additional ones.
200Second, the value of most of the individual items is so minimal, even at the time it was purchased, that there is no basis in ascribing any residual value to these items even if Katia was able to prove that they were hers. For example, this claim includes stuffed toys, a black kettle and various forks and knives.
201Finally, some of these items are household chattels that would be accumulated during the course of a relationship. I have addressed the claim for unjust enrichment in the course of this relationship under the first issue, and it should not be addressed a second time.
202As a result, I am not prepared to order any compensation for any chattels that Katia allegedly left behind.
Conclusions and Costs
[203] For the foregoing reasons, I order as follows: a) Zurab is to pay Katia the sum of $6,000.00 on account of Katia’s contributions to the condominium within thirty (30) days of the release of these reasons. b) The amount in paragraph a is to have interest, in accordance with the Courts of Justice Act added to it. c) If the parties cannot agree on the calculation of interest in paragraph (b) within fourteen (14) days of the release of these reasons, they may each provide one (1) page of submissions to my judicial assistant outlining their position, and the basis for their calculations. I will then make a decision. No reply submissions are permitted unless I invite them. d) Zurab will pay Katia the sum of $1,400.00 as a lump sum, inclusive of interest, on account of his spousal support obligations within thirty (30) days of the release of these reasons. e) All other requests for relief by both parties are dismissed.
204The parties are encouraged to attempt to resolve the costs issues. In the event that they are not able to resolve these issues, then each party may file costs submissions of no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law. These submissions are due fourteen (14) days from the date that these reasons are released.
205Each party may file reply submissions of no more than one (1) single-spaced page, exclusive of case-law, within seven (7) days after receiving the other party’s costs submissions.
206I confirm that I already have the parties’ bills of cost. Given the costs incurred by each side, the principle of proportionality should be addressed in the costs submissions.
207In the event that I do not receive costs submissions in accordance with this timetable, then no costs shall be ordered.
LEMAY J Released: March 22, 2019