COURT FILE NO.: FC-15-1667

DATE: 2019 April 29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Karen Naegels

Applicant

– and –

Dwayne Robillard

Respondent

S. Coulterman for the Applicant

S. Greenberg for the Respondent

HEARD: May 17, 18, 22, 23 and 24, 2018

REASONS FOR DECISION

d. summers, J

Nature of the Proceeding

[1] There are two primary claims in this application: spousal support and unjust enrichment. The applicant, Ms. Naegels, seeks spousal support under the Family Law Act, R.S.O. 1990 c. F.3 (FLA). She asks that support be indexed annually and secured by life insurance. Corollary to her support claim, she also seeks to remain a beneficiary of the respondent’s extended health care coverage.

[2] The remedy sought by Ms. Naegels for unjust enrichment claim is a monetary payment equal to one-half of the wealth accumulated during her common law relationship with the respondent, Mr. Robillard. She says they were engaged in a joint family venture. Ms. Naegels’ pleading includes a claim for child support for her daughter retroactive to the date of separation plus a proportionate sharing of special and extraordinary expenses. She did not pursue child support at trial. Ms. Naegels also seeks reimbursement for debts she says Mr. Robillard incurred on her credit cards and for his use of Kaitlin’s child support arrears.

[3] Mr. Robillard opposes the application. He brought a claim for occupation rent but did not pursue it at trial.

Background Facts

[4] The parties lived together in a common law relationship. The length of their cohabitation is in dispute.

[5] Ms. Naegels was 39 years old at the time of trial. She was born on September 16, 1978. She has one child, Kaitlin, (d.o.b. February 28, 1995) from a prior relationship. Kaitlin lived full-time with the parties until May 2014.

[6] Mr. Robillard was born on June 5, 1967. He was 51 years old by the time of trial. He has two children from a prior marriage, Emma, born April 15, 1999 and Adam, born October 3, 2001. During his relationship with Ms. Naegels, the children resided with them on alternate weekends from Friday after school until Sunday evening and for four hours, two evenings a week. Sometime around 2011, the mid-week access became an overnight visit.

[7] Ms. Naegels and Mr. Robillard did not have children together.

[8] Ms. Naegels attended college and trained as an executive administrative assistant. She graduated sometime around 2001. She worked for approximately 5 years as a real estate assistant. At some point, she obtained her realtor’s licence and worked as a licenced assistant.

[9] In December 2008, Ms. Naegels underwent abdominal surgery from which she never fully recovered. She has not worked outside of the home since the end of 2009. In 2010 and 2011, she had two further exploratory and corrective surgeries. They did not alleviate her pain. Ms. Naegels has suffered from chronic lower abdominal pain since her first surgery and increasingly from anxiety and depression.

[10] Aside from interim spousal support, Ms. Naegels’ sole source of income is the Ontario Disability Support Plan (ODSP). She began receiving ODSP benefits in 2013.

[11] During the relationship, Mr. Robillard worked for Neilson’s Dairy and after 2007, for its subsequent owner Saputo Inc. He worked first as a maintenance manager and then as a senior technical advisor – a position that required some travel. He now works for CBRE Limited as a facility manager.

[12] On March 8, 2018, Justice J. Audet found Ms. Naegels to be a special party as defined by r. 2(1) of the Family Law Rules O.Reg. 114/99 (FLR’s). Her mother, Ms. Susan Flay, was appointed as her private representative under r. 4(2). Ms. Flay was present in the courtroom throughout the trial. She was also a witness.

Preliminary Issues

[13] Ms. Naegels was not represented by counsel on the first day of trial. She came to court with the belief that her mother, Ms. Flay, could be a witness in the trial and also act as her non-lawyer agent under r. 4(1)(c) of the FLR’s. That rule states that a party may act in person, be represented by a lawyer, or be represented by a person who is not a lawyer, but only if the court gives permission in advance. It was apparent that both Ms. Naegels and Ms. Flay believed that Justice Audet’s order authorized Ms. Flay to act as her daughter private representative and to be her non-lawyer agent. [emphasis added]. It was also clear that neither were aware that Ms. Flay could not be both witness and agent in the case. This time-honoured distinction is to be observed even with unpaid, non-lawyer agents. See Children's Aid Society (Niagara Region) v. P. (D.), 2002 CanLII 2862 (ON SC), [2002] O.J. No. 4993.

[14] Also on the first day of trial, Ms. Flay presented the court with a letter from Ms. Naegels family physican, Dr. Charania. The letter stated her opinion that Ms. Naegels was emotionally incapable of testifying without alternative arrangements in place. The trial was adjourned for a voir dire the next morning when Dr. Charania was already scheduled to testify in the trial itself as a participant expert.

[15] By the next day, Ms. Naegels had retained Ms. Coulterman.

[16] Dr. Charania testified in the voir dire regarding her concern for Ms. Naegels’ psychological health if she had to give her evidence while facing Mr. Robillard and her estranged father, Gerry Naegels. She said that Ms. Naegels’ experienced both men as intimidating. She said Ms. Naegels was suffering from depression and anxiety and described her as “emotionally broken”. Her symptoms included memory challenges, difficulty talking, and word blocks. She said those symptoms would be exacerbated by stress and they would, in turn, contribute to further stress. Dr. Charania expressed concern that Ms. Naegels would decompensate in the stand and suffer a breakdown. She agreed that Ms. Naegels was able to testify if she could do so from outside the courtroom and with notes to prompt her if she froze.

[17] Arrangements were made to conduct the trial in a child friendly courtroom. That facility allowed Ms. Naegels to testify via closed circuit tv in a separate room. After completing her evidence, Ms. Naegels returned to the courtroom and remained for the balance of the trial.

[18] With respect to my findings below, I am mindful of the submissions made by Mr. Robillard’s counsel regarding Ms. Naegels’ status as a “special party” in this proceeding and the need for corroborative evidence before ruling in her favour under s. 14 of the Evidence Act, R.S.O, 1990 c. E. 23. That section states:

s.14 – An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

1. A person who has been found,

(i) incapable of managing property under the Substitute Decisions Act, 1993 or under the Mental Health Act,

(ii) incapable of personal care under the Substitute Decisions Act, 1992, or

(iii) incapable by a court in Canada or elsewhere.

2. A patient in a psychiatric facility.

3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence.

[19] According to Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Fifth Edition, Sydney N. Lederman, Alan W. Bryant, Michelle K. Fuerst, at page 1293, the requirement under s. 14 of the Evidence Act that the evidence be “corroborated by some other material evidence” does not mean that every fact must be corroborated in order to prove the cause of action in civil proceedings. [emphasis added]. It is sufficient if there is evidence “which appreciably helps the judicial mind to believe one or more of the material statements or facts deposed to.” The evidence must be corroborative of the party’s evidence in relevant and material matters.

[20] The authors further state that corroboration can be direct or circumstantial evidence. It must render probable the truth of the evidence to be corroborated in relation to a material issue. Circumstantial evidence is assessed in the aggregate and can be found in the evidence of the other party including the evidence he or she failed to provide including the failure to call available witnesses. However, if the circumstantial evidence before the court is equally consistent with competing versions of what happened, it is corroborative of neither. See Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Fifth Edition, Sydney N. Lederman, Alan W. Bryant, Michelle K. Fuerst, pg. 1295.

The Issues To Be Determined

1. When did cohabitation begin?
2. When did the parties separate?
3. Were the parties engaged in a joint family venture?
4. Was Mr. Robillard unjustly enriched by Ms. Naegels?
5. Is Ms. Naegels’ entitled to spousal support? If so, in what amount and for how long?

Issue No. 1 – When did cohabitation begin?

[21] The length of the parties’ cohabitation is relevant to both the property and support issues in this case. Ms. Naegels claims cohabitation began in January 2002 while she lived in the Ottawa suburb of Centrepointe. Mr. Robillard says they did not live together until May 2004 when Ms. Naegels moved in with him on Sullivan Avenue.

The Legal Framework

[22] “Cohabit” means to live together in a conjugal relationship whether within or outside marriage." See s. 1(1) of the FLA.

[23] Ms. Naegels submits that parties can cohabit without living under the same roof and relies on Justice J. Blishen’s analysis in Vanesse v. Seguin, 2008 CanLII 35922 (ON SC), 2008 CarswellOnt 4265, (Ont.S.C.J.), appealed on other issues. See Kerr v. Baranow, (2011) SCC 10, (sub nom. Vanasse v. Seguin). In Vanesse, Blishen J. found that the parties had been cohabiting for approximately 14 months before they moved into the same residence. To arrive at this conclusion, she considered the decisions in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.), Stephen v. Stawecki, 2006 CanLII 20225 (ON CA), [2006] O.J. No 2412 (Ont. C.A), M v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 and Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).

[24] In Hodge, the Supreme Court of Canada said cohabitation is a constituent element of a common law relationship but cohabitation is not synonymous with co-residence. “Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof.” (See paragraph 42). In keeping with Hodge, the Ontario Court of Appeal in Stephen v. Stawecki said a finding of cohabitation is not precluded by the fact that one party continues to maintain a separate residence. The court went on to say that considering the range of potential living arrangements between couples, a definitive, bright line test for cohabitation was not possible. The court in Stephen also noted that such a test would be inconsistent with the flexible approach taken in M v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, paragraph 60.

[25] In Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) the court listed several factors to consider when determining whether parties are cohabiting or not. The shelter arrangements made by the parties is but one factor. The others include their sexual and personal behaviour, the services provided to one another, their social activities, the perception of the community, the economic ties and supports between them, and whether there are children. There can be many elements in each general category. The factors identified in Molodowich have been referred to in many cases over the past four decades including the Supreme Court of Canada’s decision in M.v. H. The factors also received implicit approval in Hodge.

Analysis

[26] The parties met in May 2001 through Mr. Robillard’s sister. She was Ms. Naegels’ neighbour. That summer, Ms. Naegels, along with others, spent Canada Day weekend at Mr. Robillard’s cottage. She says they were together as a couple from that point forward and began cohabiting in January 2002. Aside from this, Ms. Naegels provided few details about their relationship in those early years.

[27] Ms. Naegels’ mother, Susan Flay, testified that she met Mr. Robillard for the first time at her daughter’s home in Centrepointe. She said they were dating but not living together then. Ms. Flay did not identify when this meeting took place nor did she state whether to her knowledge they ever cohabited in her daughter’s home in Centrepointe. She did speak about them sharing a home on Sullivan Avenue but did not indicate when that started. I found Ms. Flay to be forthright in her testimony. She answered the questions put to her in a matter of fact manner. If she did not know the answer, she said so and did not speculate.

[28] Mr. Andre Datta also testified on this issue. He had begun dating Mr. Robillard’s sister and through her, he met both Ms. Naegels and Mr. Robillard in the spring of 2001. He said the two couples spent a lot of time together that summer and probably saw each other every one to two days.

[29] Mr. Datta was also a guest at Mr. Robillard’s cottage on the Canada Day weekend in 2001. He said he thought Ms. Naegels and Mr. Robillard started living together a year or so later in Centrepointe. Mr. Datta also presented as candid and credible.

[30] Mr. Robillard testified that when he first met Ms. Naegels in 2001, nothing happened. He said he had a wife and a child to think about but they did end up having an affair. He did not say when the affair started.

[31] Mr. Robillard described his marriage as strained and punctuated by stints apart in 2001 when he would live at his parents’ house. He said that at some point, he decided to try to make his marriage work and his wife got pregnant. His evidence that he moved home in October 2001 was not contradicted. On October 3, 2001, Adam was born.

[32] Mr. Robillard remained in his marriage until January 17, 2003. That separation date is stated in Minutes of Settlement signed with his former spouse, Julia Hardie. She also confirmed this date in her testimony.

[33] According to Mr. Robillard, he lived with his parents for several months after leaving his marriage. He said that is when his relationship with Ms. Naegels “ramped up”.

[34] In September 2003, Mr. Robillard moved to 120 Sullivan Avenue in Ottawa. He said that was the first time he and Ms. Naegels lived together but did not clarify whether his reference to the “first time” was in relation to the date or the location of their cohabitation. He said Ms. Naegels gave him $500 toward the rent each month. He said money was tight after his separation. He had significant child support and daycare expenses to pay and moving in together was beneficial to both of them.

[35] Ms. Naegels did not present evidence to allow for a meaningful analysis of the Molodowich factors. The evidence is more persuasive of an affair prior to Mr. Robillard’s separation from his wife. In his pleadings, Mr. Robillard admits that cohabitation began in May 2004 while he was living on Sullivan Avenue. My finding is that May 2004 is the date of cohabitation.

Issue No. 2 - When did the parties separate ?

[36] Ms. Naegels asserts that separation occurred on January 11, 2015. Mr. Robillard states the relationship ended on December 31, 2013 and they lived separate and apart under the same roof after that.

Legal Framework

[37] The decision in Hodge v. Canada (Minister of Human Resources Development), also addressed when a common law relationship ends. The court said, “a common law relationship ends when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.”[emphasis added].

[38] Consideration of the Molodowich factors is also relevant to determining the date of separation.

Analysis

[39] It was on January 11, 2015 that Ms. Naegels confronted Mr. Robillard with her knowledge of his extra-marital affair. Before receiving this information, she thought he was away on business in Toronto. That is what he told her. Mr. Robillard does not dispute that the physical separation occurred on January 11, 2015.

[40] It was earlier in January when Ms. Naegels learned from Mr. Robillard’s former wife, Ms. Hardie, that he was not in Toronto, rather was away on a southern vacation with his mistress. Ms. Hardie said then, and in her testimony at trial, that she told Ms. Naegels the truth for the sole purpose of protecting her children. They knew their father was involved with another woman and she felt it was wrong for them to be burdened with his secret any longer.

[41] Ms. Naegels acknowledged that their relationship had been troubled but she thought they were working through it. She was devastated by the separation. This was corroborated by her mother, Ms. Flay, who described her as “a mess” after receiving the news. Ms. Flay said she was at the house with her daughter almost daily thereafter providing emotional support. This reaction is not consistent with someone who has allegedly known about separation for a year.

[42] In support of her position that she and Mr. Robillard were cohabiting as a couple in 2014, Ms. Naegels produced text messages from him saying “luv u too”. The last text with those words was dated November 6, 2014. She also produced her 2014 bank and credit card statements showing many transactions over the year that were either made by Mr. Robillard on her account or made by her for his benefit. According to Ms. Naegels, Mr. Robillard carried her bank and credit cards. He acknowledged that he often had her cards in his possession but only with her permission to buy items that she requested. The nature and frequency of the transactions are not consistent with his explanation.

[43] Ms. Naegels’ bank records further confirm the several transfers of substantial sums from her account to Mr. Robillard’s account in 2014 following deposits from the Family Responsibility Office. The deposits were in payment of child support arrears that the agency had collected from Kaitlin’s father. Ms. Naegels also pointed to a substantial charge in February 2014 for Mr. Robillard’s Valentine’s Day gift.

[44] The parties and the children also continued to vacation together in 2014. They made one trip to Connecticut and spent time at the cottage that summer. Ms. Jordan Horlan, a long-time friend of Ms. Naegels, testified that the last time she was at the cottage was the summer of 2014. She said their relationship appeared a little strained but she was aware there had been “a rough patch”. Still, she said she was envious at how well they got along and how loving their relationship remained after so many years together.

[45] Mr. Robillard did not deny their travels that summer. He said they were for the sake of the children.

[46] Ms. Naegels’ evidence belies Mr. Robillard’s contention that separation occurred December 31, 2013. If they were living separate and apart under the same roof, why would Ms. Naegels continue to buy gifts, transfer money and provide Mr. Robillard access to her already limited funds? The evidence further belies Mr. Robillard’s contention that at some point earlier in 2014, he told Ms. Naegels that he was seeing someone. If that was the case, why mislead her with a story about a business trip to Toronto when he was really vacationing with another woman? And why ask his children to keep it a secret?

[47] In support of his claim that he told Ms. Naegels their relationship was over at the end of 2013, Mr. Robillard relies primarily on a letter that his then lawyer sent to her. The letter was dated April 15, 2014. It referred to their relationship ending around Christmas and that Mr. Robillard was now giving her one month to find other accommodation.

[48] In her testimony, Ms. Naegels acknowledged the letter but said Mr. Robillard changed his mind after she received it and withdrew his demand that she leave the house. Kaitlin nevertheless moved out in May 2014. Mr. Robillard had also shown Kaitlin the letter – because it affected her, he said. She was 19 years old at the time.

[49] When Mr. Robillard was asked why he waited until January 11, 2015 to leave the house if he had decided to separate a year earlier, he gave two reasons: he said he could not afford to live elsewhere; and he had not yet received the ultimatum from his ex-wife that she was no longer prepared to have the children in a home that he shared with Ms. Naegels. He said that was the “kick in the pants” he needed. A letter to that effect was sent by Ms. Hardie’s lawyer dated January 19, 2015, namely, a week after he had already left. Mr. Robillard did not say whether Ms. Hardie delivered her ultimatum in some other form before this letter.

[50] I am not persuaded that separation occurred on December 31, 2013. There are two aspects to the test in Hodge, to determine when a common law relationship has ended: 1. either party regards it as over; and that party has conducted him or herself in a manner that convincingly demonstrates the intention to terminate the relationship is firm. Here, even if Mr. Robillard considered the relationship over, I do not find that his actions in 2014 demonstrated in any convincing way that he was of a settled mind to end the relationship. He continued to accept gifts and significant money transfers from Ms. Naegels throughout 2014. He used her bank and credit cards. He took holidays with Ms. Naegels and he continued to say “luv u too”. He misled her about his trip in January 2015 with his girlfriend and expected his children to keep his secret. In my view, these actions are not consistent with a separation. He may have voiced his wish to separate in December 2013 and months later instructed a lawyer to send a letter but even after that letter, he continued to act in a manner that indicated the relationship was ongoing.

[51] I find that separation occurred on January 11, 2015.

Issue No. 3 – Were the Parties Engaged in a Joint Family Venture ?

[52] According to Ms. Naegels, she and Mr. Robillard were engaged in a joint family venture. She says they were a family building a life together and he will be unjustly enriched if he retains the full value accumulated during their relationship. She seeks to share in that value equally.

[53] He denies that there was a joint family venture and he denies enrichment.

The Legal Framework

[54] Kerr v. Baranow, 2011 SCC 10, is the leading case on joint family venture and unjust enrichment where spouses live together in common law relationship. The decision reiterates that the mere fact of cohabitation does not give rise to an automatic entitlement to share in the value of the other spouse’s property.

[55] Prior to Kerr, there were two recognized grounds for unjust enrichment claims: the provision of unpaid services including domestic services; and the contribution to the acquisition, improvement, maintenance or preservation of specific property. Justice Cromwell’s decision in Kerr recognizes a third basis for an unjust enrichment claim where both partners have contributed to the accumulation of wealth in the relationship. He said:

“The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts. The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the "value received" and the "value surviving", as McLachlin J. put it in Peter, at pp. 1000-1001. Thus, where there is a relationship that can be described as a "joint family venture", and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.” See paragraph 60.

[56] Kerr tells us that the existence of a joint family venture is a factual determination to be made in each case. It must be well-grounded in evidence that is specific to the particular circumstances of the parties’ relationship. A joint family venture is not to be presumed nor should equal sharing be presumed where one is found to exist. “However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties' relationship and their dealings with each other, the law of unjust enrichment should reflect that reality” and the monetary award should be assessed to reflect the claimant’s proportionate contribution. (see paragraph 85)

[57] Kerr sets out a non-exhaustive list of four factors that are useful to consider in the analysis of the evidence in deciding whether or not the parties were engaged in a joint family venture. I will consider each in turn.

(a) Mutual Effort

[58] The parties’ cohabitation spanned almost 11 years between May 2004 and January 11, 2015. Ms. Naegels worked outside of the home during the first 5 years. After that, her poor health caused her to leave the workforce.

[59] To the extent there was wealth accumulated during the relationship, it rests in three assets: the last residence the parties shared together at 80 Robarts Street in Kanata, Ontario; the increase in the value of the cottage at Palmerston Lake, Ontario; and the increase in the value of Mr. Robillard’s retirement savings. Title to the real property was registered in Mr. Robillard’s sole name.

[60] According to Ms. Naegels, she and Mr. Robillard spent as much time as they could at the cottage on Palmerston Lake after the summer of 2001 and worked together to transform the property from a small shack to the cottage that exists today. She described transporting building supplies including roof trusses, pine planks, shingles, appliances, and a trampoline for the children. The cottage was accessible by boat only.

[61] Ms. Naegels description of the cottage in 2001 corresponds with that given by Andre Datta – that it was a small one-room structure. His account of their Canada Day weekend that year was of a group of people all pitching in to help build the cottage. Because the cottage was a work in progress, many slept in tents.

[62] For purposes of settling the issues arising out of his separation from Ms. Hardie, Mr. Robillard obtained an opinion of value for the cottage in November 2004. The realtor estimated the value at $70,000 and described the property this way. He said the main structure was a bungalow that had been added to a smaller original structure. It consisted of two bedrooms with open concept kitchen, living and dining space and considerable interior finishing work still to be done. The property did not have septic, electrical, water or telephone service and was accessible by water only.

[63] Ms. Hardie confirmed that the last time she was at the cottage in 2004 it was as described by the realtor. Further, when Mr. Robillard had the cottage appraised in 2017, the appraiser described the property virtually as had the realtor in 2004. Clearly, sometime between the summer of 2001 when Ms. Naegels first visited the cottage and the fall of 2004, the structure had been completed and made habitable. I find that nothing further was done to the cottage after 2004 and I accept Mr. Robillard’s submission that the increase in value during cohabitation was not on account of work contributed by either party.

[64] In light of my finding that cohabitation began in May 2004, the potential for mutual effort in relation to the cottage during the cohabitation is limited to the 6 month period leading up to November, 2004. The cottage has not changed since then. Ms. Naegels sought compensation for the contribution she made prior to May 2004 in conjunction with her assertion that this period of time was encompassed within the period of cohabitation. Her claim is based on joint family venture. As such, the contribution she made prior to its commencement is not included. Even if there had been a stand-alone claim for unjust enrichment for these particular contributions, I was not in a position to value them. There was no evidence that would permit me to value the work she did on a services rendered basis or how those services may have contributed to the value of the cottage.

[65] I also accept the value of $130,000 as of January 2016 as prepared by Mr. Robillard’s appraiser. This value was not disputed by Ms. Naegels.

[66] The increase in value during cohabitation was from $70,000 to $130,000 less the mortgage of $109,906 leaving an increase in equity of $20,094. This equity was created by market forces but at the same time, Ms. Naegels was contributing all of her available income to the family expenses. Considered globally, those expenses also included costs related to the care and maintenance of the cottage.

[67] Prior to the purchase of 80 Robarts, the couple lived in two different rental properties. Each time they moved, it was to provide more space for the family. Robarts was purchased in September 2008 for $228,000. Title was taken in Mr. Robillard’s name alone. It had the additional advantage of its proximity to the primary residence of Mr. Robillard’s children.

[68] As I will explain, the value of the property when the parties separated was $275,000. Mr. Robillard sold it in 2017 for $320,000. He received all of the net proceeds of sale of almost $78,000.

[69] Ms. Naegels did not contribute to the down payment or guarantee the mortgage. She claimed it was always intended that the house would belong to both of them. She said it was because of a prior bankruptcy and her inability to obtain credit that she was not on title in the beginning. The plan, she said, was for her to be added to title as soon as she re-established her credit. When that happened, she said she asked and Mr. Robillard refused.

[70] In support of her argument that ownership was intended to be joint, Ms. Naegels pointed to the Agreement of Purchase and Sale that was prepared showing both parties as purchasers, as well as to property tax and water bills that listed both names. I do not find these documents to be persuasive of actual mutual intention. Because of her employment background in real estate, it was Ms. Naegels who prepared the offer to purchase. Its reference to both parties as purchasers was not reflected in the title documents. The utility accounts are not indicative of ownership.

[71] Mr. Robillard disputes that ownership was ever intended to be joint. He said her only contribution was preparing the Agreement of Purchase and Sale. Mr. Robillard points to Ms. Naegels’ ODSP application in 2013 where she declared that she was paying rent of $850 a month for living on Robarts. The ODSP application also included a declaration that she had no beneficial interest in any assets. It is acknowledged that she never paid rent. Mr. Robillard also signed the application. The contents of the ODSP application do not reflect well on either party. They both signed it. It is not accurate. I do not put much weight on it in my determination of her actual contribution or of the parties’ actual intentions with respect to the nature of their relationship.

[72] The parties did not have a joint account. Their personal accounts remained separate. However, I accept M. Naegels testimony that, globally, all of her money went toward the family expenses. She did so either by direct payment or transfer of money into his accounts.

(b) Economic Integration

[73] The parties did not have joint accounts. The two pieces of real estate were only registered in Mr. Robillard’s name. Despite that, Ms. Naegels contributed all of her monies to the family expenses. She incurred debt during the cohabitation which also went to such expenses. As discussed in relation to the date of separation, he carried and used her debit and credit cards.

[74] Mr. Robillard was the higher earner throughout. He paid the mortgages and paid more of the family expenses than she did. Indeed, she became financially dependent on him as the relationship progressed.

[75] There was no evidence one way or the other of any life insurance, beneficiary designations or estate provision for the other during the relationship.

(b) Actual Intent

[76] As will be seen when I discuss the priority given to the family, the intention of the parties as revealed by their actions was to live and function as a family in every way that one could imagine a family functioning. I also accept Ms. Naegels’ testimony that she and Mr. Robillard became engaged in 2010. Mr. Robillard admitted that he gave her a ring but denied announcing it on FaceBook and said the FaceBook page she produced with news of the engagement was not his despite it bearing his name. I do not accept his explanation in this regard. It was not convincing.

(d) Priority of the Family

[77] The evidence confirms that the parties gave significant priority to their family.

[78] The parties did not have children together but each came to the relationship with children from prior unions. Ms. Naegels’ daughter, Kaitlin, lived with them full-time. Mr. Robillard’s children, Emma and Adam, lived primarily with their mother. He had alternate weekends with them and mid-week access. This schedule continued until approximately 2011 when the midweek visits expanded to an overnight stay.

[79] The evidence indicates that each of them loved and cared about the other’s children. I accept Ms. Naegels’ evidence that the five of them were very much a family.

[80] During the first half of the parties’ relationship, both worked, and according to Ms. Naegels, shared household responsibilities. That changed late in 2009 when she could no longer work. After that, she claims that she took over primary responsibility for the children and most household duties including meals, cleaning, laundry, care of their three dogs and two cats. Ms. Naegels said she loved and cared for Mr. Robillard’s children as her own. She said she was there for them in the morning, after school and in the evening if he worked late. She said he worked hard, often his hours were long, and she wanted to support him in any way that she could.

[81] The testimony of her long-time friend, Ms. Horlan, about her observations of Ms. Naegels’ role in the home during those later years of their cohabitation provides corroboration of her testimony.

[82] Mr. Robillard gave a different description of their respective roles in the home. He said he was the cook in the family who also did most of the cleaning, yard work and childcare. To some extent, his testimony was corroborated by his daughter, Emma. She would have been around 5 years old when the parties started living together and 16 when they separated. Little weight can be given to her recollections of the role Ms. Naegels played in the early years. Mr. Robillard’s testimony was weakened by the fact that it did not distinguish between the early and later years of the cohabitation or provide any reference to time when describing the roles in the relationship.

Conclusions on Joint Family Venture

[83] Based on these considerations and findings, I am persuaded that this was indeed a joint family venture. Viewed globally, both parties contributed to the joint family venture that is linked to the accumulation of wealth during cohabitation. There has been an unjust enrichment because Mr. Robillard has retained a disproportionate share of the assets that were the product of their joint efforts. Ms. Naegel retains none.

[84] The next step is to determine the proportionate contributions of each party.

[85] The incomes earned by the parties during cohabitation follow:

Year	Ms. Naegels	Mr. Robillard
2004	$31,278
2005	$35,598
2006	$35,880	$68,000
2007	$35,347
2008	$38,974
2009	$33,648
2010	$27,163
2011	$4,133
2012	$0.00
2013	$16,860
2014	$19,416	$93,728

[86] Mr. Robillard did not provide evidence of his income in the other years. His testimony satisfied me that he had the same type of employment from 2004 forward. The Minutes of Settlement signed with his former spouse in July, 2006 are based on annual income of $68,000. Accordingly, Mr. Robillard was obliged to pay $1,015 in table child support plus an additional $2000 annually toward daycare. His child support obligations continued throughout this relationship with Ms. Naegels and were presumably adjusted from time to time to reflect changes in his income. In the absence of better disclosure, I infer that his income increased gradually over the years after 2006.

[87] Considering the significant child support obligations that Mr. Robillard had during the years of cohabitation, the parties’ incomes were not as disproportionate in the early years as might first appear. I note, of course, that in addition to his child support obligation, Mr. Robillard was still obliged to pay income tax on his full salary of $68,000 leaving him less net income to contribute to this family.

[88] Ms. Naegels, who contributed her full income toward the family, left the relationship with debt of $6,720 and no assets. A portion of this debt was incurred by Mr. Robillard for his own use. He, on the other hand, left the relationship with an additional net worth of $75,955.

[89] In addition to contributing her income over the years, in 2014 Ms. Naegels received approximately $11,000 in payment of child support arrears that she provided to Mr. Robillard with the intention that it go toward family expenses. Ms. Naegels made a specific claim in this proceeding to be reimbursed that amount of money. Despite this claim, Mr. Robillard did not account for how he spent the money. I have considered this additional amount in the context of Ms. Naegels contributions to the joint family venture and the accumulation of wealth.

[90] Looking at the global contribution of the parties as they changed over the years of cohabitation, I have reached the conclusion that Ms. Naegels’ contributions account for 35% of the total. In reaching this conclusion, I have taken into account Mr. Robillard’s greater earnings and ability to contribute along with their relatively equal contributions in the other aspects of their life together, taken as a whole.

[91] I, therefore, quantify her claim for unjust enrichment at $26,584 rounded down to $26,580. Mr. Robillard is ordered to pay Ms. Naegels this sum within 30 days from the release of these reasons.

Issue No. 4 - Spousal Support

[92] Ms. Naegels seeks spousal support on compensatory and needs based grounds. She says her role in the relationship gives rise to elements of compensation. She further argues that her poor medical and psychological health make it impossible for her to return to work.

[93] Mr. Robillard does not dispute entitlement but says it is rooted in need only and that he has satisfied his obligation by the payments made since separation.

Legal Framework

[94] There is no question that Ms. Naegels meets the definition of spouse under s. 29(a) of the Family Law Act for purposes of support. That section states that “spouse” includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years. As found above, Ms. Naegels and Mr. Robillard cohabited for a period of over 11 years.

[95] Sections 30 and 33 of the Family Law Act govern the obligation of a spouse to provide support for the other and the purposes of a support. The relevant provisions follow.

Obligation of spouses for support

30. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

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.

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

Analysis

[96] I am not persuaded that there is a compensatory element to Ms. Naegels’ support claim. While I am satisfied that she likely took over responsibility for many domestic duties after 2009 when she was feeling well enough to perform them, those responsibilities alone do not, in my view, give rise to a compensatory support claim. Ms. Naegels did not leave her job or alter her career path to devote herself to the needs of the family or to accommodate the needs of Mr. Robillard’s employment. She left the paid workforce for health reasons. Her ability to be self-supporting is not related to decisions made during the relationship for the benefit of the family or Mr. Robillard’s career.

[97] She has established needs based entitlement.

[98] Ms. Naegels argues that she is too ill to work and cannot contribute to her own support beyond the ODSP benefits that she currently receives. Mr. Robillard challenges her inability to work for health reasons. He claims that she is addicted to prescription painkillers and that is what compromises her ability to work and be self-supporting.

[99] In December 2008 she underwent surgery. She never fully healed or recovered from this surgery. In 2010 and 2011, she had two further surgeries in the hope of fixing the problem. These procedures were not successful. She still describes agonizing pain in her lower abdomen even after 2 ½ years of pelvic physiotherapy, injections into the abdominal nerves, and attendance at a pain clinic. She says she is not getting physiotherapy currently because she cannot afford it.

[100] After surgery her teeth started to stain and turn black. This has had a negative impact on her self-confidence.

[101] Ms. Naegels says that she misses working and wants to return but does not believe she can work at this time. Her testimony is corroborated by her family physician, Dr. Charania. She referred to Ms. Naegels’ abdominal surgery in 2008, the chronic pelvic pain she has suffered since, the narcotic pain medications and anti-inflammatories prescribed for her. She said Ms. Naegels grew increasingly despondent after two further surgeries when her surgeons could not resolve her pain.

[102] Dr. Charania testified that Ms. Naegels also suffers from depression and anxiety. Her symptoms include insomnia, tremors, lack of appetite, passive suicidal ideation and threats, panic attacks, hyperventilation, and hysterical sobbing. She said Ms. Naegels already takes the maximum amount of anti-depressive medication that can be prescribed to an outpatient. Dr. Charania confirmed that Ms. Naegels medications are prescribed in consultation with a psychiatrist.

[103] Dr. Charania described Ms. Naegels’ pain as all-consuming. She said that adding depression and anxiety to that level of pain adds a new dimension to sadness. Based on her testimony, I find Ms. Naegels is not capable of working at this time for legitimate medical reasons. There was an incident of concern in 2010 as to the potential misuse of prescription medication by Ms. Naegels. She took responsibility for it. Now, she remains on prescriptive pain medication but I was not persuaded that she misuses her prescription medication or is anything but compliant with her physician’s directions.

[104] Going forward, Dr. Charania recommended a number of ongoing treatments. She said pelvic physiotherapy was essential to assist with the pain management as well as psychotherapy and significant dental work to restore Ms. Naegels’ self-confidence.

[105] Ms. Naegels’ need at separation flowed from illness and inability to work and earn income. These developments are not recent.

[106] Ms. Naegels’ budget shows a monthly deficit of $1,298.65 without adjustment for the ODSP claw back for spousal support and including the $1900 currently in pay. There will be a slight reduction of $110.00 for the care of pets she no longer has. Ms. Naegels budget does not include any amount for vacations, savings or physiotherapy. It is unclear whether any portion of her physiotherapy needs might be covered through OHIP as part of ODSP benefits. Her housing costs are for a rented townhouse. She does not have any assets.

[107] Since the separation, she has needed to borrow to meet day- to- day costs and legal fees. Her current indebtedness is now $79,168.

[108] Mr. Robillard’s Financial Statement shows a monthly surplus of $620 but this does not account for his spousal support obligation of $1,900 to Ms. Naegels. Adding in this amount, renders a monthly deficit of $1,280. This amount is to be reduced for income tax and CPP deductions that exceed the amounts actually paid. The amount he budgeted for income tax was $2,395.71 whereas he actually paid $1,401.41 per month as confirmed by his 2017 income tax return showing the total amount at $16,817. His CPP deductions appear on his Financial Statement at $439.31 per month whereas the maximum amount payable in 2018 was $2,593.80 or $216.15 a month. These two adjustments reduce Mr. Robillard’s deficit by $1,217.10. Mr. Robillard’s Financial Statement also includes carrying costs for two properties, vacations and RRSP savings.

[109] Mr. Robillard’s net worth has increased since separation. His assets are greater and his debt has declined slightly.

[110] Mr. Robillard indicates his current partner contributes $2,808 per month to their expenses. However, he did not provide any evidence of her income making it impossible to assess whether she is paying a reasonable share of their joint costs for herself and her two children.

[111] Based on Ms. Naegels’ ODSP benefits with the claw back calculation included, Mr. Robillard’s current income of $110,000 with his $400 per month child support obligation included, the Spousal Support Advisory Guidelines (SSAG) indicates a range of monthly support from $1,459 to $1,946. Support at the high end of the range leaves Ms. Naegels with 24.6 % of the available net disposable income whereas Mr. Robillard is left with 73.6% of the net disposable income. Support at the high end will not enable her to meet all of her needs.

[112] It is true that not all need can be addressed with spousal support. See Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420, at paragraph 54. Here the significant shortfall between the amount of support payable and her need leads me to the high end of the SSAG for duration. The high end of the durational range is 11.5 years. I am giving credit for the years paid to date. For these reasons, I order Mr. Robillard to pay $1,900 per month to and including June 15, 2026 subject to a variation in the event of a material change in circumstance. Support in this amount shall be adjusted annually for the cost of living. In addition, Mr. Robillard shall maintain Ms. Naegels as the beneficiary of his health coverage if possible and as the irrevocable beneficiary of insurance on his life in an amount that will provide her with lump sum proceeds sufficient to replace his future support obligation in the event of his untimely death. If the parties cannot agree on the amount and terms of the insurance, I may be spoken to.

My Order:

1. Mr. Robillard shall pay Ms. Naegels the sum of $26,580 in satisfaction of her unjust enrichment claim. Payment shall be made within 30 days after which post-judgement interest will accrue.

2. Mr. Robillard shall continue to pay spousal support to Ms. Naegels on the 15th day of each month in the amount of $1,900 until and including June 15, 2026, subject to variation in the event of a material change of circumstance.

3. Spousal support shall be indexed annually on the anniversary date of this order in accordance with s.34 (5) and (6) of the Family Law Act.

4. Mr. Robillard shall obtain and maintain Ms. Naegels as the irrevocable beneficiary of insurance on his life in an amount sufficient to fund his spousal support obligation to her for as long as she is entitled to be supported by him.

5. Mr. Robillard shall maintain Ms. Naegels as a beneficiary of the health care plan available to him through his employment, if he can do so under the terms of the plan, for so long as she remains entitled to support.

6. No order is made with respect to the parties’ household contents and personal belongings, the evidence being insufficient to enable me to do so.

7. If the parties are unable to settle the issue of cost, Ms. Naegels shall provide me with her costs submission by May 24, 2019. Mr. Robillard shall have until June 14, 2019 to provide his responding submissions. Ms. Naegels shall then have until June 21, 2019 for a brief reply. Cost submissions are not to exceed 3 pages exclusive of Offers to Settle and Bills of Costs.

D. Summers J.

Released: 2019 04 29

COURT FILE NO.: FC-15-1667

DATE: 2019 April 29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KAREN NAEGELS

Applicant

– and –

DWAYNE ROBILLARD

Respondent

REASONS FOR decision

Madam Justice D. Summers

Released date: 2019 April 29