COURT FILE NO.: 704/18

DATE: 2019/11/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hillary Jackson

Applicant

– and –

Justin Bradley Moore

Respondent

Ryan Bonin, for the Applicant

Keith Newell, for the Respondent

HEARD: October 15-18, 2019

THE HONOURABLE JUSTICE j. r. hENDERSON

REASONS FOR JUDGMENT

INTRODUCTION

[1] The applicant (“Jackson”) and the respondent (“Moore”) are presently 24 years old and 30 years old respectively. They met in 2012 and dated briefly at that time. They reconnected in July 2014, and maintained a relationship until approximately May 2018. There is a dispute as to whether they ever cohabited with each other.

[2] The parties were never married. They have two children, namely Skylar, born April 16, 2015, and Kinsley, born December 26, 2018.

[3] In this application Jackson makes a claim for sole custody of the children, child support for the children, section 7 expenses for the children, and spousal support for herself. She also requests that the support orders be retroactive, and that any spousal support be paid as a lump sum.

[4] Skylar and Kinsley have been in the de facto custody of Jackson for their entire lives. Prior to and during the trial, the parties resolved the custody, access, and parenting issues.

[5] Moore has paid periodic child support since April 2015 in the amount of $330 per month. He increased the payment to $500 per month as of February 2019. There are outstanding issues with respect to the proper amount of child support, retroactivity of child support, and section 7 expenses.

[6] There is an issue as to Moore’s income for support purposes. Moore appears to have several sources of income, including income from employment, income from buying and selling cars and car parts, investment income, rental income, and income from a structured settlement arising out of a motor vehicle accident. Additionally, Jackson submits that Moore has been intentionally underemployed.

[7] Regarding Jackson’s claim for spousal support, Jackson must prove that she is a “spouse” within the meaning of the Family Law Act (“FLA”), failing which she cannot make a claim for spousal support. After Skylar was born, Moore purchased a rental property which he rented to Jackson. Jackson and Skylar lived in Moore’s rental property from November 2015 until May 2018, but Moore maintained his own separate residence. During this period, Jackson and Moore continued to have an intimate relationship.

[8] It is Jackson’s position that from November 2015 to May 2018 the parties cohabited in a relationship of some permanence, and that consequently Jackson is a spouse within the meaning of the FLA. Moore’s position is that Jackson was his tenant, that the parties were not cohabiting in a relationship of some permanence, and that Jackson is not a spouse.

[9] In summary, the following issues arise:

• Custody, access, and parenting issues

• Moore’s income for support purposes

• The amount of periodic child support payable by Moore, including retroactivity

• Section 7 expenses payable by Moore, including retroactivity

• Is Jackson a spouse as defined in the FLA?

• If Jackson is a spouse, there are issues as to Jackson’s entitlement to spousal support, the quantum of spousal support, and whether spousal support should be paid as a lump sum.

FINDINGS OF FACT

[10] I find that the parties met and dated briefly in 2012, while Jackson was still in high school. They remained in contact and started to date again in July 2014. Jackson quickly became pregnant with Moore’s child.

[11] When they resumed their relationship in July 2014, Jackson was living with her mother in an apartment in St. Catharines, Ontario, and working full-time as a grocery clerk at Food Basics. Moore was living with his mother in Beamsville, Ontario, and was employed as a tow truck driver.

[12] During the time that Jackson was pregnant with Skylar, I find that Jackson and Moore did not know each other very well. However, I accept that they remained in contact with one another, and spent time discussing how they would manage the birth of their child. During this period, I find that they occasionally were sexually intimate, but that Moore, to Jackson’s knowledge, was involved in relationships with at least two other women between July and December 2014.

[13] After Skylar was born in April 2015, Moore continued to live with his mother in Beamsville, and Jackson and Skylar lived with Jackson’s mother in St. Catharines. Jackson took a maternity leave from Food Basics and was in receipt of Employment Insurance benefits.

[14] Moore began dating his new girlfriend, Miranda Curley (“Miranda”) in March 2015, just prior to Skylar’s birth. Jackson was aware of Moore’s relationship with Miranda. However, despite Moore’s relationship with Miranda, Jackson and Moore continued to have occasional sexual relations.

[15] I find that shortly after Skylar’s birth, Moore told Jackson that he wanted to take care of Jackson and Skylar. At the same time Moore had received some money from an insurance settlement and was considering purchasing an investment property. Moore offered to buy a property that would be suitable for Jackson to rent from him. Consequently, in November 2015, Moore purchased a house known as 1 Bessey Street, St. Catharines (the “Bessey Street property”).

[16] In early November 2015, Jackson and Skylar moved into the Bessey Street property as tenants pursuant to a written lease agreement whereby Jackson agreed to rent the house from Moore for one year. The written lease specified that the rent was $1050 per month, but I accept that the parties had an oral agreement that Jackson would pay rent of $700 per month. I accept Moore’s testimony that he did not initially know how much rent to charge, but that he only wanted enough rent to cover his mortgage, insurance, and tax expenses.

[17] At the end of the first year of the tenancy, in November 2016, the lease was renewed in writing. Rent of $700 per month was specified in the new lease agreement. At the end of the second year, in November 2017, Jackson continued to rent as a month-to-month tenant with rent of $700 per month. I find that Jackson did in fact pay $700 per month to Moore for rent for every month that Jackson lived at the Bessey Street property from November 2015 to May 2018.

[18] I accept that Moore regularly did repairs and renovations at the Bessey Street property. Those repairs and renovations included repair of the furnace, repair of the roof, installation of light fixtures, repair of the front porch after a fire, building a fence, laying sod in the backyard, and renovating the bathroom.

[19] Between November 2015 and May 2018 while Jackson and Skylar lived at Bessey Street, Jackson and Moore continued their relationship. I find that Moore attended at the Bessey Street property approximately once per week. His usual routine was to arrive on a weekday at around 5:00 p.m. or 6:00 p.m., at which time he would spend approximately two hours with Skylar until Skylar went to bed. Then, he would usually spend another two hours with Jackson during which time they often watched a movie and had sexual relations. Thereafter, Moore would leave Bessey Street and return to his own residence.

[20] I specifically find that Moore did not stay overnight at the Bessey Street property with Jackson, and that Moore did not move any of his clothing or personal effects into the Bessey Street property. Further, I find that Moore continued to date other women, including Miranda. I find that Jackson also dated at least one other man during this period.

[21] Moore continued to live at his mother’s home in Beamsville until August 2016 at which time Moore and Miranda decided to move in together. Both Moore and Miranda contributed money toward the purchase price of a house on North Shore Drive in Lowbanks, Ontario, although title to the property was taken in Moore’s name alone. In August 2016, Moore and Miranda moved into the Lowbanks property and resided there in a conjugal relationship until May 2019.

[22] After Moore moved in with Miranda in Lowbanks, Moore continued to visit with Jackson and Skylar, on a weekly basis as described above. I find that Jackson was fully aware of the fact that Moore was living in a conjugal relationship with his girlfriend Miranda during this time. Further, I find that Jackson believed that Moore was “cheating” on his girlfriend by having occasional sexual relations with her.

[23] I find that Moore has been involved with Skylar’s upbringing since Skylar’s birth. I accept that Moore went shopping with Jackson for baby clothes and other items that Skylar needed. I accept that Moore attended at Jackson’s mother’s home to assemble a crib shortly after Skylar’s birth, and that Moore purchased an air conditioner for Skylar’s room at the Bessey Street property.

[24] In approximately May 2018, Jackson told Moore that she was pregnant with Kinsley and that Moore was the father. I find that Moore balked at having another child with Jackson. At the same time, I also accept that the Bessey Street property had become a lot of work for Moore and that he was considering selling it. These factors led to the termination of the relationship between Jackson and Moore in May 2018. At Moore’s request, Jackson and Skylar vacated the Bessey Street property that spring. They returned to live with Jackson’s mother.

[25] With respect to child support, by way of an oral agreement between the parties, Moore has paid regular periodic child support for Skylar at the rate of $330 per month from April 2015. He paid this amount every month until February 2019 when, after acknowledging that he was the father of Kinsley, he increased the amount of child support to $500 per month.

[26] Also, Moore initially contributed 50 percent of the daycare expense for Skylar, but he stopped making any contribution toward the daycare expense or any section 7 expense as of May 2018.

[27] At present, Jackson, Skylar, and Kinsley live in an apartment in St. Catharines, in the same building as Jackson’s mother’s apartment. Jackson is currently on maternity leave and will return to work at Food Basics in December 2019. She hopes to pursue her further education at Niagara College in the future.

[28] Moore and Miranda became engaged to be married in December 2018. However, they did not marry, and their relationship ended in May 2019. At present, Moore is not involved in any dating relationship and he resides by himself on North Shore Drive in Lowbanks.

[29] Moore is no longer employed as a tow truck driver, but he now works as a part-time manager at Al’s Lube Service. He also generates income from the sale of cars and car parts, and from his real estate and other investments. Further, he is currently attempting to start his own used car dealership.

CUSTODY, ACCESS, AND PARENTING ISSUES

[30] The parties have now resolved all of the custody, access and parenting issues. They have agreed to several terms, including an order that Jackson will have sole custody of the two children. Accordingly, an order will go in accordance with paragraphs 1 to 10 of the draft order submitted on behalf of Moore, marked as Exhibit 2.

MOORE’S INCOME FOR SUPPORT PURPOSES

[31] Moore has a high school education. He attended community college, but did not complete any college courses. It is clear from the evidence that Moore has a facility for repairing and restoring motor vehicles.

[32] In approximately 2008, Moore was struck by a motor vehicle while he was a pedestrian. He suffered a brain injury as well as other physical injuries. As a result of his brain injury, he was in an induced coma for approximately three weeks. After his release from hospital, with the assistance of his family, Moore went through a lengthy period of rehabilitation.

[33] As a result of the motor vehicle accident, Moore commenced litigation which resulted in a two-part insurance settlement in approximately 2015. The first part of the settlement is a structured settlement from which Moore receives the sum of $931 per month, indexed, tax-free. Because the income from the structured settlement is tax-free, it is appropriate to gross up the amounts received for support purposes. The parties agree that this income should be grossed up at the rate of 21.7 percent. Therefore, I find that for each of the relevant years Moore had income from his structured settlement in the amount of $11,172 (12 x $931), grossed up by 21.7 percent, for a total of $13,596 per year.

[34] The second part of the insurance settlement was a lump sum payment of approximately $525,000. Out of this part of settlement Moore gave his mother approximately $150,000 to assist with her financial situation. The remaining $375,000 has been invested in different investment vehicles since 2015.

[35] Moore’s first investment in real estate was the purchase of the Bessey Street property in November 2015. The Bessey Street property was sold in July 2018 and the proceeds of the sale were used to purchase a property known as 42 Carlton Street, St. Catharines (the “Carlton Street property”). Moore currently rents the Carlton Street property to his mother and sister. Moore’s mother pays rent that covers Moore’s mortgage, insurance, and taxes on the property.

[36] I find that Moore does not make any significant income from the Carlton Street property, nor does he suffer any significant loss. This was the same situation that existed when Moore rented Bessey Street to Jackson. I find that Moore’s approach to renting these properties has been reasonable. Therefore, no amounts for rental income or rental loss should be added or deducted from his income for support purposes.

[37] I find that Moore also used some of his insurance settlement to purchase the property on North Shore Drive in Lowbanks, Ontario, in August 2016. Miranda has moved out of the Lowbanks property, but Moore continues to use the Lowbanks property as his residence. He does not generate an income from the Lowbanks property.

[38] Also, in 2016, Moore invested in a five-year mortgage to Al’s Lube Service in the amount of $185,000. Interest on the mortgage is 6.5 percent per year and as a result Moore receives the sum of $1,002 per month from Al’s Lube Service. This is taxable income in Moore’s hands and is shown as income in his tax returns.

[39] The above-mentioned investments account for most of the insurance settlement funds, although I accept that Moore continues to have some minor investments that are held at the Canadian Imperial Bank of Commerce.

[40] Moore also has employment income. He was working as a tow truck driver from approximately 2013 until the spring of 2015 when he lost his employment after he was charged with a criminal offence. For the remainder of 2015 he received Employment Insurance benefits. Then, in the spring or summer of 2016 he commenced working at Al’s Lube Service. Since 2016, Moore has worked as a part-time manager at Al’s Lube Service, working four hours per day five days per week.

[41] In addition to his employment at Al’s Lube Service, Moore has regularly purchased and restored used motor vehicles and sold the vehicles or the parts for a profit. He is in the process of opening his own used car business, to be called Blue Wave Auto Centre. It is clear that Moore makes money buying, restoring, and selling used vehicles. The parties have agreed that this court can attribute income to Moore in the net amount of $10,000 per year as income from this source. Counsel agree that this amount should also be grossed up by 21.7 percent for support purposes. Therefore, I find that for each of the relevant years Moore had income from buying and selling motor vehicles in the net amount of $10,000, grossed up by 21.7 percent, for a total of $12,170 per year.

[42] Moore’s income from his employment at Al’s Lube Service has been in the range of $16,000 to $18,000 annually for the last two years. Counsel for Jackson submits that Moore is capable of working on a full-time basis and has been intentionally underemployed. Therefore, Jackson’s counsel requests that I impute employment income to Moore in the amount of approximately $40,000 per year.

[43] Moore testified that he still has lingering problems related to his 2008 motor vehicle accident. He testified that at present he has regular back pain and headaches and that he tires quickly. In my opinion, Moore has made a significant recovery from his injuries. I generally accept that he has some minor limitations related to his accident, but I find that Moore at present is capable of working full-time. This finding is supported by the fact that Moore worked full-time as a tow truck driver for approximately two years, and after losing that job Moore spent many hours every day doing renovations to his mother’s house. That being said, Moore is not a good candidate for full-time work as a labourer; rather, any employment that he undertakes should permit him to take breaks as needed.

[44] I find that Moore’s current employment as a shop manager for approximately 20 hours per week, combined with self-employment as a used car dealer, is reasonable given Moore’s minor limitations. His present situation allows him to work within his field of expertise, and at the same time adjust his hours as needed. Further, I find that by working at Al’s Lube Shop and operating his own business, Moore is in fact working on a full-time basis. Therefore, I will not impute any employment income to Moore over and above the employment income declared on his income tax returns.

[45] In calculating Moore’s income for support purposes, I agree with Moore’s counsel that the capital gains generated by the sale of the Bessey Street property should be excluded from income as the sale of this property was a one-time occurrence. Other less substantial capital gains shown in Moore’s income tax returns should remain included in Moore’s income for support purposes as these gains likely relate to the buying and selling of bank investments.

[46] Therefore, in calculating Moore’s income for support purposes I have included the amounts shown in Moore’s tax returns as income from employment, Employment Insurance benefits, interest and dividend income, capital gains from non-real estate investments, and mortgage income. I have added the grossed up income from the structured settlement and from buying and selling motor vehicles. I have not deducted the rental losses claimed in the tax returns. Accordingly, I find that Moore’s income for support purposes for each of the relevant years is as follows:

For 2015 - $52,508

For 2016 - $51,703

For 2017 - $68,879

For 2018 - $61,147

PERIODIC CHILD SUPPORT, INCLUDING RETROACTIVITY

[47] Pursuant to the Child Support Guidelines, Moore should have paid the following amounts for child support for the following years since the birth of Skylar:

2015 – 8 months at $479 per month equals $3,832

2016 – 12 months at $470 per month equals $5,640

2017 – 12 months at $634 per month equals $7,608

2018 – 12 months at $566 per month equals $6,792

2019 – 10 months at $930 per month equals $9,300

[48] Moore in fact paid the following amounts as child support:

2015 – 8 months at $330 per month equals $2,640

2016 – 12 months at $330 per month equals $3,960

2017 – 12 months at $330 per month equals $3,960

2018 – 12 months at $330 per month equals $3,960

2019 – 1 month at $330 and 9 months at $500 per month equals $4,830

[49] Therefore, I find that Moore has underpaid child support in the total amount of $13,822 as of October 31, 2019.

[50] Moore’s counsel notes that in the application Jackson only requested child support retroactive to the date of the application, which was delivered in November 2018. Therefore, Moore’s counsel submits that Jackson is only entitled to child support back to November 2018.

[51] I agree that the pleadings set the parameters for the case before the court, and that Jackson’s counsel should have amended the pleadings as soon as it became clear that the pleadings were not adequate. However, I find that through negotiations between counsel, Moore’s counsel became aware, prior to the trial, that Jackson wished to claim child support retroactive to the birth of Skylar. Further, both parties dealt with the retroactivity issue in a fulsome manner during the trial.

[52] Therefore, I find that there is no prejudice to either of the parties if this court were to determine all issues of retroactivity back to the date of Skylar’s birth. Moreover, I am cognizant of the fact that this court has an obligation to ensure that the children in this Province are properly supported by their parents. Accordingly, I will deal with Jackson’s request for retroactive child support as if the pleadings had been properly amended.

[53] Therefore, it is ordered that Moore pay to Jackson for arrears of child support the amount of $13,822.

[54] Regarding ongoing child support, Moore shall pay to Jackson the amount of $930 per month commencing November 1, 2019, for the support of the two children, based on Moore’s current income of $61,147 per year.

SECTION 7 EXPENSES, INCLUDING RETROACTIVITY

[55] Jackson requests retroactive contribution to the daycare expense for Skylar. Moore had been paying 50 percent of the daycare expense until May 2018, but he has not made any payment since that date.

[56] Skylar was in daycare while Jackson was working at Food Basics. When Jackson went on maternity leave, she kept Skylar in daycare, but reduced the amount of time that Skylar spent in daycare. In my view, it is appropriate for Skylar to attend daycare a few days per week while Jackson is not working because of the social benefit that she achieves by interacting with other children her own age. Therefore, I find that the daycare expense incurred by Jackson is reasonable.

[57] Given the respective incomes of the parties, I find that the daycare expense, and all section 7 expenses, should be shared between the parties on a 70/30 basis. Therefore, Moore should reimburse Jackson for 70 percent of the daycare expense to date, less any amounts that he has already paid.

[58] I accept the calculations prepared by Jackson’s counsel and order that Moore reimburse Jackson in the sum of $2,954.05 for his share of the daycare expense from January 1, 2018 to October 31, 2019.

[59] On an ongoing basis, Moore shall pay 70 percent of the section 7 expenses, such expenses to be agreed upon by the parties in advance.

IS JACKSON A SPOUSE AS DEFINED IN THE FLA?

[60] The onus is on Jackson to prove that she is a “spouse” within the definition set out in Part III of the FLA, failing which she cannot make a claim for spousal support.

[61] Section 29 in Part III of the FLA, reads:

“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.

[62] In s.1 of the FLA, “cohabit” is defined as follows:

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

[63] It is Jackson’s position that she was a “spouse” as described in subparagraph (b) of the definition, from November 2015 to May 2018, during the time she resided at Bessey Street. Therefore, Jackson claims to be eligible for a spousal support order pursuant to s.30 of the FLA.

[64] Moore accepts that Jackson and Moore are the parents of two children and acknowledges that they were friends who were sexually intimate. However, Moore submits that they did not “live together in a conjugal relationship.” Moore described his relationship with Jackson as “friends with benefits.”

[65] In M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, the Supreme Court of Canada confirmed that the decision in Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC), [1980] O.J. No. 1904, sets out the considerations for determining whether a conjugal relationship exists. The non-exhaustive list of factors set out in Molodowich is as follows:

1. Shelter: a. Did the parties live under the same roof? b. What were the sleeping arrangements? c. Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour: a. Did the parties have sexual relations? If not, why not? b. Did they maintain an attitude of fidelity to each other? c. What were their feelings toward each other? d. Did they communicate on a personal level? e. Did they eat their meals together? f. What, if anything, did they do to assist each other with problems or during illness? g. Did they buy gifts for each other on special occasions?

3. Services: What was the conduct and habit of the parties in relation to: a. Preparation of meals, b. Washing and mending clothes, c. Shopping, d. Household maintenance, and e. Any other domestic services?

4. Social: a. Did they participate together or separately in neighbourhood and community activities? b. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

5. Societal: What was the attitude and conduct of the community towards each of them and as a couple?

6. Support (Economic): a. What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? b. What were the arrangements concerning the acquisition and ownership of property? c. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children: What was the attitude and conduct of the parties concerning children?

[66] These factors must be considered together; no one factor is conclusive of the issue. I find that the aggregate effect of these factors in the present case does not support Jackson’s position that she was a spouse during the period in which she lived at the Bessey Street property.

[67] Regarding the first three Molodowich factors, I find that there is very little evidence from any witness, including Jackson, that supports Jackson’s position that she was a spouse. I found Jackson to be an honest witness and I have no doubt that she is a good mother to her two children. However, I found Jackson to be very naïve about her relationship with Moore.

[68] Regarding the first factor, shelter and accommodations, Jackson testified that the time that Moore spent at Bessy Street was limited. In general, Moore was only present a few hours every week. Jackson testified, and I accept, that it was Moore’s regular routine to come to Bessey Street approximately once per week in the middle of the week for approximately four hours. He usually spent the first two hours exercising access with Skylar, and then he spent the other two hours with Jackson. In addition, I accept that Moore or his mother also attended for brief visits to pick up Skylar for access weekends.

[69] Jackson also confirmed Moore’s evidence that at no time did Moore ever stay overnight at Bessey Street with Jackson. Further, Jackson confirmed that Moore never moved any of his clothing or personal belongings into the Bessey Street property.

[70] In addition, Jackson acknowledged that she was a tenant at the Bessey Street property, which was owned by Moore. She signed two written lease agreements, and at the end of the second year she continued on a month-to-month tenancy. As a tenant, she paid her rent every month to her landlord, Moore.

[71] Therefore, I cannot conclude that the parties lived together under the same roof or that they shared accommodations. This Molodowich factor favours Moore.

[72] Regarding the second Molodowich factor, the considerations of sexual behaviour and fidelity clearly favour Moore’s position. Jackson testified that she was aware that Moore was seeing other women during the time she resided at the Bessey Street property, as she said that Moore talked to her about his other relationships. Jackson referred to Miranda as Moore’s “girlfriend.” She testified that she knew that Moore moved in with Miranda in the summer of 2016 and lived with Miranda in a common law relationship for approximately three years thereafter.

[73] Jackson also testified that she dated one other man, Lee, during the period. She said that she dated Lee for about a month in the summer of 2016. Her friend Elizabeth Emerson (“Elizabeth”) testified that Jackson had briefly dated two different men, Lee and Josh.

[74] Thus, I find that for approximately two years of Jackson’s residency at Bessey Street, Jackson knew that Moore was cohabiting in a conjugal relationship with Miranda, and that Miranda was Moore’s common law girlfriend. Jackson acquiesced to this arrangement, and Jackson herself did not remain completely faithful to Moore.

[75] As to personal behaviour, Jackson acknowledged that Moore did not stay for meals at Bessey Street. Jackson also testified that the parties did not exchange gifts or cards or celebrate special occasions such as Christmas together. On this point I accept Jackson’s evidence that on one occasion Moore took Jackson out for dinner to Johnny Rocco’s restaurant on her birthday, and that on Valentine’s Day they often would “hang out” at Jackson’s house. In my view, the parties’ personal behaviour suggests a very casual dating relationship, not a spousal relationship.

[76] Regarding communications between the parties and their feelings for each other, I agree that there is some modest support for Jackson’s position. Both Jackson and Moore testified that they became close friends after November 2015, and that they enjoyed their relationship with each other. In late 2015 and early 2016, there were text messages between the parties in which they expressed strong feelings for each other. Moore described Jackson as a great mom and an amazing person. He also told her that he loved her. Jackson said that she fell in love with Moore after she moved to Bessey Street.

[77] However, I find that the relationship never became the spousal relationship that Jackson wanted. It is telling that Elizabeth testified that by 2016 she was advising Jackson that she should move on from Moore because he was no good for her. Elizabeth said that Jackson told her that she was hoping that it would turn into something else with Moore, but it never did.

[78] In her testimony, Jackson said that she thought Moore’s relationship with her was different than it was with other girls. Even when Moore was living with Miranda, Jackson said that they had a child together, and she hoped that things would work out for her with Moore. Further, Jackson said that when she became pregnant with Kinsley, she knew there would be a problem because Miranda would know that Moore had cheated on Miranda with Jackson.

[79] In determining whether a party is a spouse, it is important to consider whether the parties were committed to one another. I adopt a statement made by Dunn J. in the case of Y.S. v. S.B., 2006 ONCJ 162, [2006] O.J. No. 1824 at para. 61, about the nature of the spousal relationship, as follows:

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.… [F]or a spousal relationship, what is needed is a consensual acceptance by two people of each other as spouses and so declared by each person to the other by his or her words and actions.

[80] In my opinion, in the present case, Jackson may have wished or hoped that she was in a spousal relationship with Moore, but it is clear that Moore did not commit to the relationship. Jackson, if she had been objective, would have recognized that Moore did not make any spousal relationship commitment to her.

[81] Regarding the third Molodowich factor, there was no evidence that either of the parties performed any domestic services for the other, such as cleaning, laundry, or groceries. They each maintained their own residences and performed their own domestic chores.

[82] I accept that Moore did extensive repairs and maintenance to the Bessey Street property, but I reject the submission that these acts support a finding that Moore and Jackson were living together in a conjugal relationship. I find that the Bessey Street property was a significant financial investment for Moore. The primary reason for Moore’s repair and maintenance of the property was that he wanted to protect or improve his investment; it required a lot of work and maintenance. This is not a factor in favour of Jackson’s position that she was a spouse.

[83] Regarding the Molodowich factor of economic support, Jackson’s counsel submitted that Moore rented the Bessey Street property to Jackson at a reduced rent, and that this could be construed as a factor in Jackson’s favour. In my view, the evidence on this point is very slim. The first written lease shows rent of $1050 per month, but Jackson testified that she did not even notice this figure in the lease. Jackson believed that the rent had always been $700 per month, which was the amount that Moore needed to meet his mortgage, insurance, and taxes.

[84] Moore testified that he did not know how much to charge for rent initially, but he wanted the rent to cover his mortgage, insurance, and taxes. He agreed that it was set at $700 per month as discussed with Jackson.

[85] No expert evidence was called as to the rental value of the Bessey Street property at the time. Moore denied that he could rent the Bessey Street property for more than $700 per month because of the state of the property. Both Jackson and Moore acknowledged that the house had a rat infestation problem. This was one of the many problems that caused Moore to do significant repairs and renovations. Moore testified that he did not think that anyone else would want to live there because of the rat problem.

[86] On this evidence, I cannot conclude that the property was rented to Jackson at a reduced rent. I find that there was no special financial consideration between the parties in relation to the property. Further, there was no special financial consideration with respect to the provision of food or clothing.

[87] Finally, I have considered the social and societal Molodowich factors. In my opinion, the manner in which the parties presented their relationship to family and friends also does not support Jackson’s position. Jackson acknowledged that there were only two Jackson family events at which Moore was present. The first was a barbecue in the summer of 2015 at which the Jackson family met Moore, and the second was a birthday party thrown by Moore and Jackson for Skylar’s first birthday. There were no other Jackson family events attended by Moore.

[88] I accept the evidence of Jackson’s mother, Brenda Jackson, who testified that she saw her daughter and Skylar at Bessey Street almost every day. She confirmed that Moore only visited Jackson at Bessey Street approximately once per week for most of the time during which Jackson lived at Bessey Street. She also confirmed that Moore attended only two Jackson family functions, namely the summer barbecue and Skylar’s first birthday party.

[89] I also accept the evidence of Moore’s mother, Mary Moore (“Mary”), who testified that Jackson was not present at any of the Moore family holiday celebrations, such as Christmas celebrations. Jackson herself confirmed that she was never present at any of the Moore family functions. Moore testified that Jackson was not at those family functions because Miranda was there with him.

[90] Jackson also acknowledged that when she introduced Moore to her family at the two Jackson family events, and when she introduced him to any of her friends, she introduced him as “Skylar’s dad”, not as her spouse or boyfriend.

[91] The most helpful piece of evidence for Jackson was her testimony that Moore’s mother, Mary, referred to Jackson as her “daughter-in-law”. Mary confirmed that this was the case, but she denied that she ever thought that Jackson and Moore were a common law couple. She thought they were friends and they were parents together of two children.

[92] I accept Mary’s testimony that she continues to have a good relationship with Jackson, that she loves her grandchildren, that Jackson is very accommodating, and that Jackson makes sure that Mary sees the grandchildren. She said that out of respect to Jackson she calls her “daughter-in-law”, because she does not want to refer to her as a baby mama.

[93] On behalf of Moore, Moore’s brother Ryan Moore (“Ryan”), his friend Melyssa Campbell (“Melyssa”), and his boss Al Leblanc (“Al”) all testified. Ryan testified that he had only met Jackson once, at Skylar’s first birthday party and he barely knew her. He was not aware of any relationship that his brother had with Jackson between 2015 and 2018. However, he knew that his brother was in a relationship with Miranda during this period, and Ryan testified that he met Miranda “thousands of times”.

[94] Neither Al or Melyssa have ever met Jackson. They do not know her. They are aware that Moore has two children with Jackson. They are both aware that Moore was in a relationship with Miranda for several years and had been engaged to Miranda.

[95] Jackson’s counsel referred me to the case of Hazelwood v. Kent, [2000] O.J. No. 5263. In that case, the parties never married but had two children together. The father of the children lived downtown close to his employment during the week, but he spent weekends living with the mother of the children in their home. The father had moved his personal effects into the mother’s home and had his own room in the home. The court held that the mother was a spouse within the meaning of the FLA and ordered spousal support.

[96] In my view, the circumstances in the Hazelwood decision are quite different from the facts of the present case. It is significant that in the Hazelwood case the father and the mother maintained fidelity to each other; they were exclusive sexual partners. Moreover, in Hazelwood the parties lived under the same roof for part of each week, they slept together in the same residence on the weekends, they presented as a couple at social and business functions, and they shared meals together. Further, the mother provided some domestic services, and the father kept some of his personal belongings at the shared residence. All of those elements are missing from the present case.

[97] In summary, I find that Jackson is the mother of Moore’s two children, and that the parties were occasional sexual partners. I also find that they became friends between 2015 and 2018. However, in consideration of the Molodowich factors, I find that Jackson was not Moore’s spouse. The factors of shelter, sexual behaviour, personal behaviour, fidelity, domestic services, social activities, and societal conduct all favour Moore’s position.

[98] I conclude that Jackson was not a spouse within the meaning of the FLA, and therefore she cannot claim spousal support. Her spousal support claim is hereby dismissed.

OTHER MATTERS

[99] As security for the child support payments, I order that Moore take out a life insurance policy on his life in the amount of $195,000 with Jackson named as the irrevocable beneficiary in trust for the two children. Moore is to maintain this life insurance policy for as long as he is obliged to support the children.

[100] Further, I order that each of the parties provide the other party with a copy of their respective income tax returns, along with the corresponding Notices of Assessment, on or before June 30 of each year.

CONCLUSION

[101] In conclusion, Jackson’s request for spousal support is dismissed. With respect to all other matters, there will be a final order in accordance with these Reasons.

[102] If there are any issues arising out of this decision, including costs, I direct that the party seeking relief shall deliver written submissions to the trial coordinator at St. Catharines within 14 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.

J. R. Henderson J.

Released: November 13, 2019