COURT FILE NO.: FS-07-3743-00 DATE: 2020 05 15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

VERNA BOUFFARD Michael K. Housley, for the Applicant Applicant

• and -

AIME BOUFFARD Sarah E. Mott-Trille, for the Respondent Respondent

HEARD: April 2, 3, 4, 5, 16, 17, 18; May 2; August 7 and 8, 2019, in Brampton, Ontario

REASONS FOR JUDGMENT Kumaranayake J.

OVERVIEW

[1] The Applicant Verna Bouffard (“the Applicant”) and the Respondent Aime Bouffard (“the Respondent”) married on November 5, 1987. They have two children: Aimy Bouffard, born August 25, 1988 (“Aimy”), and Jessan Bouffard, born July 12, 1991 (“Jessan”) (collectively “the children”). At the time of trial, Aimy was 30 years old and Jessan was 27 years old.

[2] The Applicant and the Respondent were divorced on February 11, 2018.

[3] The parties do not agree on when they separated. They agree that both of their names appear on title to the property known as 1 Glendale Avenue, Brampton, but they do not agree on whether they both have an interest in the property. The Applicant says she owns half of the home and the parties should sell the home. The Respondent says that he is entitled to the Applicant’s share of the home and wants the Applicant to transfer her share to him. They also do not agree on whether the Applicant is entitled to an equalization payment or whether the Applicant owes the Respondent child support and/or section 7 expenses.

BRIEF BACKGROUND

[4] At the time of trial, the Applicant is 58 years old. And the Respondent was 64 years old. The Applicant has a grade 8 education. She grew up in foster care from the age of 3 until she was 15 or 16 years old. Unfortunately, she lived in multiple foster homes.

[5] The Respondent grew up in Quebec. He completed grade 8 in Quebec but did not finish high school. He came to Ontario in 1980 to learn English and remained in Ontario. He has physical disabilities as a result of a workplace accident in 1990 and a motorcycle accident in 1983. His limitations include that he cannot bend his left knee fully and he can only use 10% of his left arm and fingers. After he and the Applicant married, he upgraded and completed the equivalent of a grade 11 education. The Respondent indicated that he is more comfortable speaking and reading in French, but he can read English, though he has difficulty with some words. The trial of this matter was completed in English and the Respondent gave his evidence in English with little difficulty. When he needed to, the Respondent asked for clarification if he was uncertain of what was being asked of him.

[6] There is no dispute that following their marriage, the parties lived in a one-bedroom apartment on Constitution Blvd in Mississauga. They lived there for approximately one year and then moved to another one-bedroom apartment located at 1060 Caven Street. Their eldest child, Aimy, was born during the time they lived at this one-bedroom apartment. After approximately one year, they moved to a two-bedroom apartment in the same building. While they lived in the two-bedroom apartment, their second daughter, Jessan was born.

[7] On August 5, 1994, the parties signed a separation agreement. This was not prepared by a lawyer, but there is no dispute that the parties signed this document. According to that document, the parties had been living separate and apart since August 1, 1993.

[8] In or about October or November 1994, the Applicant and the children moved to 949 Burnhamthorpe Road East, Mississauga (“the Burnhamthorpe property”). There is no dispute that the Respondent was a guarantor for the lease for this two-bedroom apartment. The Applicant asserts that the Respondent lived at this address with the children and herself. The Respondent maintains that he did not as the parties had already separated.

[9] There is also no dispute that in November 1995 the Respondent purchased a townhouse condominium located at 400 Mississauga Valley Blvd., Mississauga (“the MVB property”). It is not disputed that title to this property was in the Respondent’s name only and that he was the sole owner. Nor is it disputed that the Applicant made no financial contribution to the purchase of the MVB property.

[10] There is no dispute that the Applicant, the Respondent and their two children lived together at the MVB property. The Applicant maintains that they lived together as a family, she and the Respondent lived together as a married couple and they shared a bedroom. The Respondent does not disagree that all four of them lived together at the MVB property, but he maintains that he and the Respondent lived separate and apart within the same home and that they did not share a bedroom.

[11] It is not disputed that in July 2001, the Applicant, the Respondent, and their two children moved to 1 Glendale Avenue, Brampton (“the Glendale property”). It is not disputed that the proceeds of the sale of the MVB property were not enough to purchase the Glendale property and that financing needed to be arranged. There is no dispute that the financing was obtained in both the Applicant and Respondent’s names and title to the Glendale property was registered in both their names as joint tenants. The Respondent maintains that he never intended for the property to be jointly owned with the Applicant and that he had always intended to be the sole owner of the property.

[12] The Applicant maintains that while they lived at the Glendale property, she and the Respondent were not separated. The Respondent, however, maintains that they continued to live separate and apart in the same home.

[13] In July 2005, the Applicant was charged with assault and mischief. She was removed from the home by the police. Once she was released from custody, the terms of her release prohibited her from attending at the matrimonial home except on one occasion to obtain her belongings. It is the Applicant’s position that July 1, 2005 is the date of the parties’ separation.

[14] There are three liens registered on title to the Glendale property. It is not disputed that each of these liens was registered by Legal Aid Ontario (LAO) with the Applicant’s consent. The liens are a result of payment plans the Applicant entered into with LAO. One lien relates to her criminal matter and two relate to this family law litigation. The Applicant acknowledges that she did not discuss the liens with the Applicant prior to their registration and that she did not even tell the Respondent about the liens. At trial, the Applicant estimated that the balance owing to LAO is $7,000.

[15] On October 20, 2008, on the advice of her then lawyer, the Applicant severed the joint tenancy by conveying her interest to herself. As a result, the Applicant and the Respondent own the property as tenants in common. The severance of the joint tenancy was without advance notice to the Respondent. The severance of the joint tenancy does not change the Respondent’s position. He maintains that he is the beneficial owner of the Applicant’s share of the Glendale property. The Applicant maintains she own 50% of the Glendale property.

[16] There were periods of time during which the Respondent paid child support to the Applicant when the children were in her care. However, after they moved to the MVB property, the Respondent asserts that he was the children’s primary caregiver. On March 27, 2009, Ricchetti J. made a temporary order that commencing April 1, 2009, the Applicant pay $450.00 per month in child support.

[17] The Respondent seeks retroactive child support from November 1995 to March 2009. He also seeks an order that the Applicant pay retroactive section 7 expenses.

[18] The Applicant seeks equalization of net family property. The Respondent asserts that her claim for equalization is statute-barred as she brought her claim for equalization more than six years after the valuation date.

PRELIMINARY ISSUES

[19] There were several preliminary issues that had to be addressed on the first day of trial. Consequently, the evidence in the trial only started on April 3, 2019.

(a) Legal Representation for the Respondent

[20] A review of the endorsement record shows that the Respondent has been representing himself since 2018. A settlement conference was held on March 28, 2018. The trial was estimated to be three to four days and the trial was scheduled to proceed the week of February 11, 2019. A trial management conference was held on May 8, 2018.

[21] A pretrial was held on February 11, 2019 and Ms. Mott-Trille was noted to be “assisting” the Respondent on that day. On the first day of trial, I asked Ms. Mott-Trille to clarify what that meant. Ms. Mott-Trille indicated that she was prepared to appear as counsel of record for the Respondent.

(b) Applicant’s oral motion for judgment

[22] Counsel for the Applicant brought an oral motion seeking permission to bring a motion for judgment. Respondent’s counsel opposed this request due to the lack of notice and non-compliance with rule 16 of the Family Law Rules, O. Reg. 114/99. For oral reasons given on April 2, 2019, I declined to grant the Applicant’s request.

(c) Respondent’s request to amend his Answer

[23] Counsel for the Respondent brought an oral motion to amend his Answer. The Respondent wanted to make three amendments, two of which were not opposed by counsel for the Applicant relating to the Claim by the Respondent. The two unopposed amendments are:

2. Declaration s that the Applicant has no interest in 1 Glendale Avenue, Brampton, that I am the sole legal and beneficial owner of this property, that the Applicant holds her registered ownership of this property in a resulting trust or constructive trust for me, an order vesting title to this property in my name and an order requiring the Applicant to convey her interest in this property to me absolutely .

3. A declaration/order that the Applicant shall be solely responsible for paying off and removing all Legal Aid liens registered on title to the 1 Glendale Avenue, Brampton property.

[24] The amendment which was opposed by the Applicant was within paragraph 6 of the Respondent’s Answer, where he is required to set out the important facts that form the legal basis of his position. The Respondent wished to amend subparagraph 20 as follows:

20. In closing, I do not believe the Applicant has any interest in my home, which was purchased long after we separated. We have never had a matrimonial home. The Applicant has never contributed or money’s worth to my home. The Applicant would be unjustly enriched if she were granted the relief she seeks including but not limited to a one-half interest in the 1 Glendale Avenue, Brampton, Ontario property. I am seeking a court order that the Applicant holds any registered interest in this property in trust for me and that I am the sole legal and beneficial owner of this property.

[25] Counsel for the Applicant opposed the third amendment. The basis of his opposition was that he learned of the proposed amendment that day and he would need to conduct further research regarding unjust enrichment. Counsel for the Respondent argued that this proposed amendment simply summarizes as the factual underpinnings for unjust enrichment had already been pleaded in the Respondent’s Answer. For oral reasons given on April 2, 2019, I granted the Respondent leave to amend his Answer to include all three of the proposed amendments. The Applicant’s counsel was offered an adjournment so that he could conduct further research, but he declined this offer.

(d) Document Brief and Statement of Agreed Facts

[26] Each counsel had prepared a document brief on behalf of their respective clients. However, they noted that there were many common documents. The matter was stood down so that counsel could review if they could file a joint document brief.

[27] Counsel subsequently advised that they would be able to file a joint document brief. They also advised that they would be able to file a Statement of Agreed Facts. Therefore, I ordered that the Joint Document Brief and the Statement of Agreed Facts was to be filed on April 3, 2019. The documents in the Joint Document Brief would be filed for the truth of their contents. The filing of the Joint Document Brief did not preclude either party from filing other documents as exhibits through the appropriate witness.

[28] On April 3, 2019, counsel filed a large Joint Document Brief. It consisted of 141 tabs and needed to be filed in two volumes as the documents were several inches thick.

[29] A Statement of Agreed Facts was also filed. It has been reproduced below.

(e) Issues for Trial

[30] Counsel were also asked to confirm the issues for trial. Both agreed that the date of separation, ownership of the Glendale property, and equalization were issues for trial. Counsel for the Respondent also advised that the Respondent had made a claim in his Answer for retroactive child support and retroactive section 7 expenses. Applicant’s counsel indicated that these last two issues had not previously been an issue. I directed that counsel have discussions and confirm on April 3, 2019 what the issues for trial are. Further, each counsel was to provide a draft Order for the relief each party was seeking.

[31] On April 3, 2019, counsel confirmed that all five issues outlined above were issues for trial.

(f) Draft Orders

[32] By her draft Order, the Applicant seeks:

1. That the Applicant Verna Bouffard is the legal and beneficial owner of one-half of the property known as 1 Glendale Avenue, Brampton, Ontario.
2. The Partition and Sale is hereby granted, subject to the Respondent Aime Bouffard having the right to purchase the Applicant’s interest at a current market value, as established by an independent valuation.
3. In the event the Respondent does not exercise his right to purchase, the property to be listed for sale forthwith by a real estate broker chosen by the Applicant.
4. Any Legal Aid Liens registered against the property shall be paid off from the Applicant’s proceeds of sale.
5. Costs to the Applicant upon written submissions.

[33] By his draft Order, the Respondent seeks:

1. That he is the sole legal and beneficial owner of the property municipally known as 1 Glendale Avenue, Brampton, Ontario (“the Glendale property”).
2. The Applicant holds her registered ownership in the Glendale property in trust for the Respondent Aime Bouffard.
3. Title to the Glendale property is vested in the Respondent.
4. The Applicant shall convey her registered interest in the Glendale property to the Respondent Aime Bouffard absolutely.
5. The Applicant shall be solely responsible for paying off and removing all liens registered on title to the Glendale property including the lien registered as Instrument No. 925626 on September 14, 2005; the lien registered as Instrument No. PR1314661 on August 14, 2007 and the lien registered as Instrument No. PR1736655 on November 16, 2009, all in favour of the Ontario Legal Aid Plan.
6. The Applicant shall pay the Respondent retroactive child support in relation to the children Aimy Bouffard, born August 25, 1998, and Jessan Bouffard, born July 12, 1991, and retroactive section 7 expenses.
7. The Applicant’s Application is dismissed.
8. Costs.

(g) Request to seal the courtroom

[34] On April 3, 2019, counsel for the Respondent advised that the Respondent objected to a friend of the Applicant being in the courtroom. The Applicant’s friend was not giving evidence. Respondent’s counsel requested that the courtroom be sealed as it was her client’s understanding that a notation had been made on the Trial Scheduling Endorsement Form (“TSEF”) that this special accommodation would be made.

[35] Ms. Mott-Trille was not counsel at the time the TSEF was completed and filed, but Mr. Housley was. He had no recollection of this accommodation being made. A review of the TSEF did not include a notation that the courtroom would be sealed. The Respondent withdrew his request.

ISSUES FOR TRIAL

[36] Therefore, the issues to be determined in this trial are:

1. What is the parties’ date of separation?
2. What is each parties’ interest in the Glendale Avenue property?
3. Is retroactive child support payable by the Applicant and if so, what is the amount?
4. Are retroactive section 7 expenses payable by the Applicant and if so, what is the amount?
5. Is the Applicant’s claim for equalization statute-barred?

STATEMENT OF AGREED FACTS

[37] On April 3, 2019, the parties filed a Statement of Agreed Facts by which they agreed to the following:

Background Chronology

1. The Applicant Verna Bouffard (“the Applicant Verna”) and the Respondent Aime Bouffard (“the Respondent Aimee”) married on November 5, 1987.
2. There are two children of the marriage, namely Aimy Bouffard born August 25, 1998 (“Aimy”) and Jessan Bouffard born July 12, 1991 (“Jessan”) (collectively “the children”).
3. On or about November 1, 1994, the Applicant Verna as a single tenant executed a Residential Tenancy Agreement for rental premises located at 949 Burnhamthorpe Road East, Mississauga, Ontario for herself and the children for the period from October 1, 1994 to October 1, 1995. The Respondent Aime signed the Agreement as guarantor.

Mississauga Valley property

4. The parties did not have a joint bank account.
5. The property municipally known as Unit 102, 400 Mississauga Valley Road, Mississauga, Ontario (“the Mississauga Valley property”) was sold by the Respondent Aime in the summer of 2001 for a sale price of $139,000. A transfer of the Mississauga Valley property from Aime Louis Bouffard in favour of Volodymyr Pantyukhin and Ganna Pantyukina for purchase price of $139,000 was registered on July 30, 2001, as Instrument No. PR115128.

Glendale Avenue Property

6. The parties executed an Agreement of Purchase and Sale dated May 19, 2001, with Douglas Wheeler as the vendor, for the purchase of the property municipally known as 1 Glendale Avenue, Brampton for $180,000.00, with a deposit of $4,000.00 and the balance of the purchase price, subject to the usual adjustments due on closing. The closing date for the purchase was originally June 29, 2001. The Agreement was conditional on the purchaser arranging financing on or before June 1, 2001 and upon the sale of the purchaser’s property known as 400 Mississauga Valley Blvd., #102, Mississauga, Ontario on or before June 1, 2001. By Amendment to the Agreement dated June 1, 2001, the closing date was changed to July 31, 2001.
7. A Transfer of the Glendale Avenue property from Douglas Raymond Wheeler was registered in the names of both parties on July 30, 2001 as Instrument No. PR115174 for a sale price of $180,000.00.
8. A charge between the parties and MCAP Service Corporation in the principal amount of $128,000.00 was registered on July 30, 2001 as Instrument No. PR115175 (“the MCAP”) on the Glendale Avenue property with monthly payments of $878.86 due each month.
9. The Respondent Aime’s funds were used to purchase the Glendale Avenue property. The Applicant Verna did not contribute any monies to the deposit for the purchase of the Glendale Avenue property nor did she contribute any monies for the balance due on closing of the purchase of the Glendale Avenue property.

July 1, 2005 Assault

10. The Applicant Verna has not resided at the Glendale Avenue property from July 1, 2005 to date.
11. The Applicant Verna subsequently entered into [a] peace bond thereafter for a period of twelve months to address the assault allegations arising from the July 1, 2005 incident.

Revenue Canada Investigations

12. The Applicant Verna filed her income tax returns with a marital status as separated from 1993.
13. The Respondent Aime filed his income tax returns with a marital status as “separated” from 1993.
14. Canada Revenue Agency initiated an investigation and wrote a letter to the Applicant Verna dated November 27, 2003, requesting documentation from the Applicant Verna to show that the parties were separated.
15. Canada Revenue Agency forwarded a second request to the Applicant Verna on or about January 15, 2004.

ScotiaBank Mortgage

16. A charge between the parties and the Bank of Nova Scotia in the principal amount of $170,000.00 was registered on August 31, 2005 as Instrument No. PR917854 on title to the Glendale Avenue property. This charge remains outstanding against the Glendale Avenue property.
17. When the parties signed the mortgage documents in 2005, they signed them as spouses as they were not divorced.
18. When the Scotia mortgage on the Glendale Avenue property became renewable, it was by Justice Price’s ordered dated October 3, 2010 that the Applicant Verna was required to sign the extension of the mortgage. The Respondent Aime was to continue to make the payments.

Applicant Verna’s Legal Aid Liens

19. On September 14, 2005 the Ontario Legal Aid Plan registered a lien as Instrument No.925626 against the Glendale Avenue property in relation to the Applicant Verna’s agreement to contribute to the costs of Legal Aid Services given to her. This lien remains registered on title to the Glendale Avenue property.
20. On August 14, 2007, the Ontario Legal Aid Plan registered a lien as Instrument No.PR1314661 against the Glendale Avenue property in relation to the Applicant Verna’s agreement to contribute to the costs of Legal Aid Services given to her. This line remains registered on title to the Glendale Avenue property.
21. On October 20, 2008, the Applicant Verna registered a Transfer from herself to herself purporting to sever the joint tenancy as Instrument No.PR1554061 on title to the Glendale Avenue property.
22. On November 16, 2009, the Ontario Legal Aid Plan registered a lien as Instrument No. PR1736655 against the Glendale Avenue property in relation to the Applicant Verna’s agreement to contribute to the costs of Legal Aid Services given to her. This lien remains registered on title to the Glendale Avenue property.

Child Support

23. The Applicant Verna was ordered to pay the Respondent Aime child support for the children in the amount of $450.000 per month commencing on April 1, 2009, pursuant to the Order of Justice Ricchetti dated March 27, 2009.

Applicant Verna withdraws funds from the Scotiabank line of credit

24. The Applicant Verna in her affidavit sworn November 4, 2010, admits attending at the Bank of Nova Scotia located at 1 Main Street South, in Brampton, Ontario and taking funds of approximately $3,000.00 from the parties’ joint line of credit with the Bank of Nova Scotia.

Applicant Verna’s Income

25. The Applicant Verna’s primary skill is that of a fork lift driver. She also shovels snow. She typically works at several jobs including working for employers such as Best Buy, Empire Investigations and Protection Services.
26. The Applicant Verna’s income in 2006 was approximately $30,586.00.
27. The Applicant Verna’s income for 2007 was approximately $30,350.00.

Glendale Avenue Property Mortgage Payments

28. The mortgage payments on the Glendale Avenue property from 2005 to September 30, 2017 amounted to $135,771.25 as follows: 2005: $ 5,976.75 2006: $11,955.50 2007: $11,955.50 2008: $11,955.50 2009: $11,955.50 2010: $11,955.50 2011: $11,955.50 2012: $11,955.50 2013: $11,955.50 2014: $11,955.50 2015: $10,235.00 2016: $ 6,760.00 January 1, 2017 to September 30, 2017: $5,200.00

29. Payments on the mortgage on the Glendale Avenue property in favor of Scotiabank have been made from the Respondent Aime’s Scotiabank account No. 60202019925 which has been solely under the name of the Respondent Aime since May 9, 2005.

Glendale Avenue Property Realty Tax Payments

30. The realty property taxes on the Glendale Avenue property paid to the Corporation of the city of Brampton in 2001 was $2,430.14. The Respondent Aime paid these taxes from July 30, 2001 to December 31, 2001. The Applicant Verna did not pay any of these taxes.

31. The realty property taxes on the Glendale Avenue property paid to the Corporation of the City of Brampton from 2002 to 2018 were: 2002: $ 2,466.10 2003: $ 2,401.48 2004: $ 2,489.60 2005: $ 2,578.97 2006: $ 2,702.95 2007: $ 2,821.19 2008: $ 2,935.96 2009: $ 3,009.00 2010: $ 3,022.71 2011: $ 3,072.77 2012: $ 3,113.48 2013: $ 3,200.14 2014: $ 3,215.68 2015: $ 3,281.27 2016: $ 3,342.17 2017: $ 3,446.49 2018: $ 3,546.90

32. The Respondent Aime has paid all the realty taxes on the Glendale property referenced above from 2002 to 2018. The Applicant Verna did not pay any of these taxes.

Divorce

33. The parties were divorced on February 11, 2018.

Applicant Verna’s Legal Counsel

34. The Applicant Verna has been represented by three different counsel in the subject proceedings.

ISSUE ONE – DATE OF SEPARATION

[38] As outlined above, the Applicant’s position is that the parties did not separate until July 1, 2005. The Respondent’s position is that the parties separated much earlier. Through his evidence, it was apparent from the Respondent’s position that there were different possible dates of separation, ranging from late 1991/early 1992 to 1993.

[39] Each party has the onus to establish on a balance of probabilities the date of separation they propose. Having reviewed the evidence of the parties and considering the applicable jurisprudence, I find that the parties’ date of separation is August 1, 1993.

The Law

[40] The relevant portions of s. 8 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), are as follows:

Breakdown of marriage

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Calculation of period of separation

(3) For the purposes of paragraph (2)(a),

(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totaling, not more than ninety days with reconciliation as its primary purpose.

[41] There are several factors to be considered in determining when the parties are living separate and apart. As Weiler J. set out in Oswell v. Oswell (1990) aff’d , these factors include:

(a) there must be a physical separation; (b) there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship; (c) the absence of sexual relations is not conclusive but is a factor to be considered; (d) the discussion of family problems and communication between the spouses; (e) the presence or absence of joint social activities; (f) the meal pattern; (g) the performance of household tasks (h) the true intent of a spouse as opposed to a spouse's stated intent (i) how the parties arrange their finances

Discussion

[42] I shall review the relevant evidence of the parties and witnesses in the context of these factors.

(a) Physical separation

[43] There are two aspects to consider in assessing when these parties were physically separated. Consideration must be given to, first, when they were physically living in two separate residences and, second, when they were living in the same residence.

[44] The Applicant steadfastly maintained that regardless of where the parties lived, they always shared a bedroom. Essentially, she argues that the parties lived in the same residence and shared a bedroom from the date of their marriage until July 2005, when she was removed from the Glendale property following the incident which led to her being charged with assault and mischief. However, in cross-examination, she acknowledged that when the parties lived at the Glendale property, she slept on the couch for a significant period of time. She indicated that when they moved to the Glendale property, she and the Respondent first shared a bedroom, then she slept on the couch and once the Respondent allegedly “kicked Jessan out” she used Jessan’s bedroom.

[45] The Respondent’s version is that he and the Applicant lived in separate residences from 1993 until 1995 (when they moved into the MVB property). There were three bedrooms in that townhouse condominium. The bedrooms were on the second floor and the living room was on the first floor. He and each child had their own bedroom and the Applicant slept on the couch in the living room.

[46] With respect to the Glendale property, the Respondent’s evidence was that there are four bedrooms in that home. The Respondent used the largest bedroom, and each child chose their own room. The Applicant chose the back bedroom. According to the Respondent, the Applicant stayed there for six months and then wanted to have a bigger bedroom, so she switched rooms with Jessan.

[47] The evidence of their daughter, Aimy, is consistent with that of the Respondent. She had no recollection of her father living with her mother, sister and her when they lived at the Burnhamthorpe property. When the four of them lived at the MVB property, she, her father and her sister each had their own room, but her mother slept on the couch. At the Glendale property, each person had their own bedroom and she did not remember her parents sharing a bedroom.

[48] There are three documents filed in the Joint Document Brief that do not support the Applicant’s position: a separation agreement; a residential tenancy agreement and a statutory declaration.

(i) Separation Agreement, dated August 5, 1994

[49] The parties signed a separation agreement on August 5, 1994. There is no dispute between the parties that each party signed the document at the social services office as the Applicant was applying for welfare benefits.

[50] From a review of the separation agreement, I find the following to be relevant:

(a) The parties to the agreement are identified as the Applicant and the Respondent. (b) There are different addresses listed for each party in the document. The Applicant’s address was: 1060 Caven Street, Apt. #904, Mississauga. The Respondent’s address was: 835 Atwater Avenue, Mississauga. (c) The parties acknowledged that: (i) they were married on November 5, 1987 and cohabited; (ii) they had been living separate and apart since August 1, 1993; (iii) they were each advised of the right to receive independent legal advice before signing the separation agreement; and (iv) the separation agreement was a domestic contract pursuant to section 54 of the Family Law Act. (d) The parties agreed that: (i) the separation agreement was effective September 15, 1994; and (ii) the Respondent would pay monthly child support to the Applicant in the amount of $150 per child.

[51] The Applicant provided very little evidence as to why she signed the separation agreement. In cross-examination, she agreed that separate addresses were listed for the parties in the separation agreement but maintained that the parties were still living together at the Caven Street apartment.

[52] The Respondent stated that the reason he signed this separation agreement was to help the Applicant to get benefits. He acknowledged that the separation agreement was signed after he had moved out. His evidence was that the parties separated in 1991 or 1992 but that he only moved out of 1060 Caven Street, Apt. #904, Mississauga in 1993. He continued to pay the rent for that apartment as the lease was in his name and the lease did not end until 1994. His evidence was that until the Applicant was in receipt of welfare benefits, he took care of the Applicant and the children.

(ii) Residential Tenancy Agreement, dated November 1, 1994

[53] The parties did not dispute that they signed a residential tenancy agreement for the Burnhamthorpe property. However, it is clear from a review of this tenancy agreement that the Applicant was the only tenant. In addition to signing the agreement, her initials appear in nine different spots within the tenancy agreement. The Respondent, on the other hand, only signed as a guarantor. The term of the lease was from October 1, 1994 to October 1, 1995.

[54] The tenancy agreement clearly indicates that only the Applicant and the children were to reside at the premises. The Applicant acknowledged in cross-examination that she read and signed the tenancy agreement. She acknowledged that it indicated that only she and the children were to occupy the premises and that the Respondent was the guarantor. She stated that she and the children lived at these premises until October 1995 when they moved to the MVB property purchased by the Respondent.

[55] The Applicant maintains that the Respondent was “always” at the Burnhamthorpe property as she was having “problems” with the landlord. It is not clear from the Applicant’s evidence what was meant by “problems.” I accept the Respondent’s evidence that he was at the Burnhamthorpe property a lot (i.e. daily) to see the children and because he helped the landlord with repairs. I accept his evidence that if he had not signed as a guarantor, the Applicant would have been unable to rent the premises.

(iii) Statutory Declaration, dated February 3, 2004

[56] The Applicant and the Respondent jointly swore a statutory declaration on February 2, 2004. The Applicant said she is not sure that she read it before signing it, whereas the Respondent asserts that they both read it before signing it and the Applicant did not raise any concern with any of its contents.

[57] The Applicant’s evidence is vague as to why this declaration was prepared in the first place. It clearly states that the declaration is “In the matter of Verna Bouffard” and provides only her social insurance number in the descriptor. The Respondent’s evidence was that it was the Applicant who arranged to have this statutory declaration sworn.

[58] From a review of the statutory declaration, I find the following, which the parties swore to be true, to be relevant:

(a) They were separated effective 1992; (b) At the time of their separation, to cooperate with child welfare services, the Respondent permitted the Applicant and the children to reside at his properties: the MVB property from 1992 to 2001 and the Glendale property from 2001 to present (meaning the date the statutory declaration was sworn); (c) The marriage was not consummated since 1992; (d) The marriage did not resume since 1992; (e) The parties had not divorced because of the children; and (f) They parties had filed separate tax returns since separation.

[59] This statutory declaration indicates that the Applicant and the children lived at the MVB property from 1992 to 2001. However, I note that the Respondent did not purchase the MVB property until 1995. This may be a typographical error in the statutory declaration, but neither party addressed it in this trial.

[60] At trial, both parties agreed that the provisions in the statutory declaration that related to the marriage not being consummated after 1992 were not correct as both acknowledged that they had sexual relations after 1992. The Respondent candidly acknowledged that when he swore the declaration, he did not know what consummated meant and was embarrassed to ask. The Applicant also disputed the provision that stipulated that the parties had separated in 1992.

[61] Included in the Joint Document Brief was a copy of the Respondent’s driver’s licence history from the Ministry of Transportation. This showed when he changed his address with the Ministry of Transportation. A review of the Respondent’s driver’s licence history shows the following addresses were registered: 3060 Constitution Blvd., Apt. #258, Mississauga (September 1993); 245 Lakeshore Road East, Apt. #1, Mississauga (April 1994); 835 Atwater Avenue, Mississauga (August 1994); #102 – 400 Mississauga Valley Blvd., Mississauga (May 1996), and (August 2001).

[62] In his evidence, the Respondent acknowledged that he usually updated his address promptly, but sometimes there was a delay (for example, when he registered his address as the MVB property). I note that the Respondent’s address for August 1994 is 835 Atwater Avenue, Mississauga. This is the same address noted on the separation agreement which was signed on August 5, 1994.

[63] Further, the Respondent’s addresses as set out in his driver’s licence history are consistent with the addresses that he reported in his tax returns. These tax returns were included in the Joint Document Brief and were admitted for the truth of their contents.

[64] Although the Applicant denies that the Respondent moved out in 1993, I find that he did and that the parties lived in separate residences until they moved into the MVB property.

[65] I also find that as of August 1, 1993, the parties were living separately. This is the date that was stipulated in the separation agreement that the parties signed.

[66] I note that the separation agreement was written in plain language. The parties acknowledged the opportunity to receive independent legal advice before signing it. The Applicant asserted that she signed this document and the statutory declaration at the insistence of the Respondent. However, I do not accept her version of events.

[67] I also reject the Applicant’s evidence that when the parties lived at the MVB and Glendale properties, the parties shared a bedroom. I find the evidence of the Respondent and Aimy to be more reliable than that of the Applicant, and I accept their evidence that the parties did not share a bedroom at either the MVB or the Glendale property.

(a) Withdrawal of one or both of the spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium;

[68] The Respondent asserts that, from his perspective, the parties’ marriage ended in 1991 after the Applicant attended a David Bowie concert on December 3, 1991. The Applicant went to the concert with the partner of her former foster sister. It was not disputed that the Respondent was the one who bought the tickets for the concert and that he, the Applicant, her former foster sister and her partner all agreed that the Applicant and the former foster sister’s partner would attend the concert together. The Respondent stayed home to look after Aimy and Jessan.

[69] The Respondent alleges that following the concert, the Applicant returned home late and was drunk and could barely walk. He alleges that he found matches from a motel and that the matches had fallen out of the Applicant’s pocket. The next morning, the Respondent confronted the Applicant alleging that she had been unfaithful to him. The Applicant denied being unfaithful. The Applicant asserted that the Respondent was just mad because she did not come straight home after the concert as she and her concert companion went for coffee after the concert. The Respondent stated that he shared his suspicions with the Applicant’s former foster sister and as a result, she ended her relationship with her partner.

[70] The Applicant denied that there were increasing problems in their marriage following the concert. The Respondent described the marriage as frustrating and draining and gave evidence that he informed the Applicant that their marriage was over and that he was only staying because of the children. It is not clear from the Respondent’s evidence when in 1992 he told the Applicant this. The Applicant denies that the Respondent told her that the marriage was over. The Respondent stated that he and the Applicant started to sleep separately, with the Applicant sleeping on the couch. He remained in one bedroom and the children continued to share the second bedroom.

[71] The Respondent asserts that both parties had other relationships and knew about the other’s relationships. However, they had an understanding that neither would bring her/his boyfriend/girlfriend to the home because of the children. The Applicant did not dispute this evidence.

[72] The Applicant described the marriage as “dysfunctional, with a capital ‘D’”.

[73] I accept the Respondent’s evidence that as of 1992/1993, he did not consider himself married to the Applicant.

(b) Sexual relations

[74] Neither party asserts that there was an absence of sexual relations. They agree that they continued to have sexual relations from the time that the Applicant and the children lived at the Burnhamthorpe property, and while they all lived at the MVB and Glendale properties. The Applicant alleges the parties had sexual relations even after the July 2005 incident.

[75] The Respondent does not disagree that the parties continued to have sexual relations. He maintained that the last occurrence was in May or June 2005. He also stated that between 2002 and 2003, he was in a relationship with someone else, so he did not have sexual relations with the Applicant.

[76] The Respondent asserts that when he and the Applicant did have sex, the Applicant made him pay for it. The Applicant disputed this allegation at trial. However, the Applicant contradicted her own prior evidence given at a cross-examination held in March 2011 when she acknowledged that she asked the Respondent to give her money for sex and they would have sex once or twice per week.

[77] As the absence of sexual relations is not a conclusive factor, I find that having sexual relations, and particularly when it is paid for, is also not a conclusive factor in determining when the parties started to live separate and apart.

(c) Discussion of family problems and communication between the parties;

[78] There was very little evidence provided by the parties in relation to this factor. The Respondent maintained that he could not communicate with the Applicant as he alleged that the Applicant was either high or drunk.

[79] The Applicant denied that she had any substance abuse problems. She denied that in July 2005, she was consuming a lot of alcohol. However, she acknowledged that she had been consuming a lot of alcohol from 2004 onwards. In her view, drinking a case of beer per week was not a lot and she denied that there were a lot of times that she was intoxicated. She denied drinking in front of the children and/or the Respondent to the point of intoxication.

[80] The parties’ daughter, Aimy, gave evidence that there was not much of a relationship between her parents. She remembered them fighting. She did not remember them being affectionate, using terms of endearment or showing physical affection towards each other.

[81] Aimy also remembered that when they lived at the Glendale property, her mother frequently consumed alcohol and marijuana. She stated that her mother would drink to the point of intoxication about three times per week and she would smoke marijuana daily.

[82] I find that when the parties lived at the MVB and Glendale properties, there was little to no communication between the parties. They spent minimal time in each other’s company. It is not necessary for me to determine what role, if any, alcohol played in the lack of communication as I have found that there was little to no communication between these parties.

[83] The purchase of the MVB and Glendale properties is an example of the lack of communication. Both parties acknowledged that the Respondent had no prior discussion with the Applicant before the MVB property was purchased. The Applicant’s evidence was that the Respondent came home one day and announced that he had purchased the MVB property.

[84] Similarly, the evidence of the parties is that they did not have discussions prior to deciding to purchase the Glendale property. It is clear from the evidence that it was the Respondent who made the decision to purchase both properties.

(d) Presence or absence of joint social activities;

[85] The Applicant maintained that the parties participated in activities as a family and referred to visits to see her former foster parents, going to the park, boating and fishing. The Applicant recalled that she had lived with her former foster parents for about 8 months when she was approximately 7 or 8 years old. The Applicant does not know why she did not remain in their home.

[86] To support her view, the Applicant provided four photographs. Three photographs showed the Applicant and the Respondent with her former foster parents and two of those photographs also included the children. One photograph was taken on January 18, 1994 and the others were taken in 1999.The fourth photograph, taken in June 1999, showed the Applicant and the Respondent with a truck. The Applicant states that the Respondent gave the truck to her as a tenth anniversary present.

[87] The Applicant also stated that the family celebrated Christmases together and sometimes they would spend Christmas with her former foster parents.

[88] The Applicant stated that the parties and the children celebrated birthdays at home. The Applicant stated that the parties exchanged birthday presents.

[89] In cross-examination, the Applicant explained that the reason that she only had four photographs is that once she was arrested and charged on July 1, 2005, she was not permitted to return to the Glendale property. It was the Respondent who packed her belongings. She acknowledged, however, that the Respondent had made multiple offers for her to attend to obtain her belongings and she declined these offers as she understood that she was not permitted to attend at the property.

[90] She also acknowledged that the Respondent had helped her to move several times since July 1, 2005 and that he had provided her with other assistance – for example, when her car broke down, he helped her. She did not provide details of when this occurred and how he helped her.

[91] She also acknowledged that the Respondent invited her for Christmas in 2015 and 2016. She says they got along so long as they did not discuss the issue of ownership of the Glendale property.

[92] By contrast, the Respondent maintained that the parties did not socialize as a couple because of the Applicant’s drinking. He stated that they did not even watch television together when they lived at the Glendale property.

[93] The Respondent acknowledged that the family had been invited to go to the Applicant’s former foster parents’ home, but the invitations were really for the former foster parents to see the children and when the former foster parents needed him to do some work for them. He referred to one occasion where the former foster parents introduced him to a neighbour as their gardener.

[94] With respect to the four photographs tendered by the Applicant, the Respondent maintained that when those photographs were taken, the parties were already living separate and apart.

[95] The Respondent disagreed that the parties celebrated anniversaries and birthdays. He maintained that they stopped such practices after the Applicant’s alleged infidelity in December 1991.

[96] He also disputed that he bought a truck as a tenth anniversary present. He maintained that the Applicant could not afford to buy the truck on her own, so he helped her get financing by co-signing. Ultimately, the Applicant transferred ownership of the vehicle to her name. The Applicant was responsible for making the payments on the truck.

[97] He also acknowledged providing the Applicant with assistance after July 1, 2005, including helping her to move several times. He maintained that he did this out of kindness.

[98] Aimy’s evidence was that she did not recall her parents celebrating anniversaries or birthdays. She did recall celebrating Christmas, but they did not buy presents for each other.

[99] In cross-examination, Aimy stated that when she was growing up, she would be in Montreal with her grandmother for her birthdays. She acknowledged that she recalled one or two times that her mother was also with her for her birthday.

[100] Aimy had some recollection of going to the home of her mother’s former foster parents at Christmas, but she was very young at the time. She did not recall her mother’s former foster parents coming to visit them at either the MVB or Glendale properties.

(e) Meal pattern

[101] I accept the evidence of the Respondent and Aimy that when the parties resided at the MVB and Glendale properties, they generally did not eat meals together. Rather, the Respondent and the children ate together. The Applicant ate separately from them. If they went out for a meal, the Applicant did not usually join them.

[102] I also accept their evidence that it was the Respondent who made the children’s school lunches. He would also take them to school and if they arrived early enough, the children were provided with a free breakfast.

(f) Performance of household tasks

[103] The Applicant’s evidence was that she was responsible for the grocery shopping and cooking. She relied on her bank statements to support her position as she used her debit card to pay. However, in cross-examination, she acknowledged that there were extended times when expenditures on groceries did not appear on her bank statements. She indicated that she may have used cash, but also reluctantly agreed that the Respondent may have paid for the groceries.

[104] The Respondent provided detailed evidence as to who completed the household tasks. At the MVB property, he and Aimy did the laundry while the Applicant did their own. He cleaned the house on Saturday mornings and the children would complain because they could not sleep in. He stated that the Applicant did not clean or dust.

[105] He did the dishes daily after he returned from work. Once Aimy was old enough, he would pay her to do dishes, dust, and clean the bath tub.

[106] The Respondent stated that he and the children did the grocery shopping, usually every second week. He would cook on Saturdays for the week and freeze the cooked food. He taught Aimy to use the microwave to warm up food.

[107] He was the children’s primary caregiver and took them for their medical appointments. He stated that he took Aimy to buy her first bra and he bought menstrual supplies for her. This was also Aimy’s evidence. She also stated that it was her father who bought clothes for her and Jessan and that she relied on her father for assistance, not her mother.

[108] The Respondent stated that the Applicant did not do any household tasks when they lived at the Glendale property. He asserted that she would remain in her room. He and a friend would clean the home. He did the majority of the grocery shopping.

[109] In her evidence, Aimy stated that she and her father did the household chores. She did the laundry; her father cleaned and would make school lunches. Her father would pay her to clean Jessan’s room. She stated that her mother would be in her room for 90% of the time.

[110] Aimy recalled that it was her father who did the grocery shopping, not her mother, and that he did the cooking.

[111] I accept the Respondent’s evidence that he was responsible for the majority of the household tasks and that he was primarily responsible for the children’s day to day needs when they lived at the MVB and Glendale properties.

(g) Finances

[112] There is no dispute that the parties did not have a joint bank account. They maintained separate bank accounts.

[113] There was also no dispute that it was the Respondent who paid the mortgage, property tax and maintenance expenses for the MVB and Glendale properties.

[114] According to the Applicant, the parties did not have a specific arrangement for paying expenses. She stated that they both paid for utilities. The Respondent maintains that he was responsible for paying the utilities at the MVB and Glendale properties and when the Applicant made the payment, he provided her with cash.

[115] Further, he paid the maintenance fees for the MVB property. For the Glendale property, he paid for the mortgage, utilities and insurance and the Applicant did not contribute to any of these expenses. The Respondent testified that he maintained the upkeep of and made renovations to the Glendale property. The Applicant did not dispute this evidence.

[116] On her 1992 to 1999 tax returns, the Applicant indicated her marital status as separated. On her 2000 to 2004 tax returns, she indicated her marital status as married, and on her 2005 income tax return, she indicated that she was separated. By contrast, the Respondent indicated his marital status as separated from 1993 onwards. The Applicant asserted that when her tax returns indicated that she was separated, that was not correct. She alleges that the tax returns were prepared by a friend of the Respondent’s, that she was not involved in the preparation, and that she signed where she was told to sign.

[117] In cross-examination she maintained that not all the tax returns were incorrect, just the ones that indicated her marital status as separated. She maintained that the tax returns that indicated a marital status of married were correct. I find the Applicant’s explanation self-serving and do not accept it.

[118] In support of her position that the parties separated on July 1, 2005, the Applicant asserts that the Respondent bought two trucks for her. She says the first one was bought as a tenth anniversary present when the parties lived at the MVB property and the second one was bought after the parties moved to the Glendale property.

[119] The Respondent disputed that he gifted the Applicant the first truck. His position was that he simply helped her qualify for financing.

[120] With respect to the first truck, the Applicant acknowledged that it was financed and at first, it was in the Respondent’s name. She acknowledged that she would not have qualified for financing on her own. However, she stated that after approximately one year, the truck was put into her name and she made all the payments. There was no dispute that it was her truck (as opposed to the Respondent’s truck or the parties’ truck).

[121] In 2001, after the parties moved to the Glendale property, the first truck was traded in and the Applicant acknowledged that the second truck was also financed. She stated that the Respondent co-signed for the truck, but she made all the payments. The Respondent did not dispute this. The Respondent denies that he bought the first truck as an anniversary present. His position is that he assisted the Applicant to buy the trucks by co-signing.

[122] With respect to the second truck, the Respondent maintained that he helped the Applicant get the truck by co-signing for it. He explained that he made this decision as the Applicant had co-signed the mortgage for the Glendale property.

[123] The parties gave similar evidence that both trucks were the Applicant’s. Neither regarded either truck as being shared property. Further, they agreed that after the Applicant was released from custody in July 2005, the truck was transferred into the Applicant’s sole name but that before this could take place, the Respondent paid off an outstanding balance of approximately $2,000.

[124] I am not persuaded that the first truck was bought by the Respondent as a gift for the Applicant. I accept that the Respondent simply assisted the Applicant to qualify for financing. From the evidence before me, there was no one else who could assist the Applicant to obtain financing. The parties did not share either truck.

Summary

[125] From the evidence, I am satisfied that the parties lived separate and apart from August 1, 1993. It is clear from the Respondent’s evidence that from late 1991/early 1992, it was his intention that he and the Applicant live separate and apart.

[126] They signed a separation agreement in 1994 indicating that they separated on August 1, 1993. They swore a declaration in 2004 that they had separated in 1992.

[127] From 1993 to October 1995, I find that the parties lived in separate residences. Although they lived in the same residence from November 1995 to July 1, 2005, I find that they lived separately and part and that they did not share a bedroom.

[128] When they were living in the same house (either at the MVB property or the Glendale property), I find that they lived separately with the Respondent being responsible for the children’s day to day needs, the daily household chores and the payment of household expenses (mortgage, utilities, groceries, and other necessities for the children). The Applicant was minimally involved.

[129] I find that the parties did not socialize together, they ate separately, and there was little to no communication between the parties while they lived in the same residence.

[130] Further, the parties did not share their finances. They did not have a joint bank account. They filed tax returns indicating that they were separated.

[131] Therefore, I find the date of separation is August 1, 1993 and that the parties did not reconcile after that date.

ISSUE TWO - EACH PARTIES’ INTEREST IN THE GLENDALE PROPERTY

[132] The Applicant’s position is that each party has a 50% interest in the Glendale property and she seeks an order for partition and sale of the property. The Respondent claims a resulting trust over the Applicant’s share of the Glendale property. He requests that the Applicant’s share of the property be transferred to him and that the Applicant be solely responsible for paying off and removing the three liens registered on title by the Ontario Legal Aid Plan.

[133] In Botcharova v. Kamstra, 2018 ONSC 7204, Petersen J. provides a very clear explanation of a resulting trust:

Doctrine of Resulting Trust

64 A resulting trust arises when one person transfers property to or purchases property for another person but does not intend to make a gift of the property. The grantor effectively asks for his or her own property back or for the recognition of his or her proportionate interest in the asset that the other person has acquired with that property. The idea is that the beneficial interest in the property "results" back to the true owner: Kerr v. Baranow, 2011 SCC 10, at para. 25.

65 Traditionally, resulting trusts have arisen in two circumstances: (1) the gratuitous transfer of property from one person to another or (2) the joint contribution by two persons to the acquisition of property, title to which is in the name of only one of them. As the Supreme Court of Canada explained in Kerr v. Baranow, at para. 17: "In either case, the transfer is gratuitous, in the first case because there was no consideration for the transfer of the property and in the second case because there was no consideration for the contribution to the acquisition of the property."

[134] Section 14 of the Family Law Act, R.S.O. 1990, c. F.3 provides that:

14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,

(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and

(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a).

[135] It is the Applicant’s position that the Respondent has not rebutted the presumption as set out in s. 14 of the Family Law Act and therefore the Respondent’s claim for a resulting trust must fail. I disagree with the Applicant.

[136] I am guided by the Court of Appeal for Ontario in its decision of Holtby v. Draper, 2017 ONCA 932, at para. 32,

[32] In Pecore v. Pecore, 2007 SCC 17, at para. 44, Rothstein J. explained that the trial judge must commence his or her inquiry with the applicable presumption and weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the transferor's actual intention. When a gratuitous transfer is made, the transferee has the onus to demonstrate a gift was intended, to rebut the presumption of resulting trust: Pecore, at para. 24. The presumption of resulting trust applies to married spouses, except that where property is held in joint ownership, the presumption is that they intended to each own one half, in the absence of evidence to the contrary: Family Law Act, s. 14. The transferor's intention at the time of the transfer is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, at paras. 2, 30 and 41. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. Its reliability must be assessed to determine weight, guarding against evidence that is self-serving or reflects a change in intention: Pecore, at para. 59; Andrade v. Andrade (2016), 2016 ONCA 368, at para. 63.

[137] Further, the absence of consideration makes the transfer gratuitous: see Holtby, at para. 37.

[138] In this case, to determine if the Respondent has rebutted this presumption, I must determine if there was a gratuitous transfer or not and the Respondent’s intention at the time the Glendale property was acquired: see Botcharova, at paras. 67, 68. I must also determine if there was an absence of consideration.

[139] I will review the circumstances which led to the purchase of the Glendale property.

[140] Before purchasing the Glendale property, the parties lived at the MVB property. Prior to the purchase of the MVB property, the Applicant and the Respondent were living in separate residences: the Applicant and the children were living at the Burnhamthorpe property and the Respondent was renting accommodations on Atwater Avenue.

[141] The Respondent states that the reason that he made the decision to purchase the MVB property was for his children. He states that he was contacted by the Applicant’s welfare worker and that because of cuts being made to welfare, the amount that the Applicant would be receiving would be reduced and the Applicant would not be able to afford to pay rent, which was going to increase by approximately $700. The Respondent states that he was told that the Applicant allegedly stated that she would drop the children off at the welfare office (if she could not afford to pay rent).

[142] The Respondent states that the idea for him to buy a home came from the Applicant’s worker and that the Respondent was given an assurance that if the Applicant and the children were to reside with him in the home, the Applicant would still be able to receive social assistance and the Respondent would not be doing anything improper.

[143] The Applicant’s worker did not give evidence in this trial. The Respondent provided evidence of his attempt to obtain a copy of the Applicant’s social assistance file and I accept that despite his efforts, he was not successful.

[144] The Respondent hired a real estate agent, Ms. Phillips, to assist him to find a suitable home within his budget. Once the MVB property was located and all the paperwork was completed, he told the Applicant and the children that he bought the MVB property. He stated that he had borrowed $5,000 from his mother for the deposit.

[145] He secured a pre-arranged mortgage with Ms. Phillips’ assistance. Title to the MVB property was registered solely in the Respondent’s name and he stated that he had never considered having the Applicant on title as well.

[146] The mortgage that was registered on title was in the Respondent’s name only and in the Charge/Mortgage of Land (“Charge”) registered on title, he indicated that he was not a spouse. By way of explanation, the Respondent states that he told the lawyer who prepared the Charge document that he and the Applicant were married but were separated. The Respondent indicated that as he and the Applicant were separated, it made sense to him to indicate that he was not a spouse as from his perspective, the marriage had ended in late 1991/early 1992. He relied on the lawyer to prepare the document correctly.

[147] The Applicant does not dispute that it was the Respondent’s sole decision to purchase the MVB property. She confirmed that the Respondent did not discuss his decision with her prior to making it. Although she disputed that the Respondent had borrowed money from his mother, the Applicant acknowledged that she did not contribute any money to the purchase of the MVB property.

[148] The Applicant also does not dispute that the MVB property was in the Respondent’s name only. The Applicant also confirmed that the Respondent did not want her name on title to the MVB property. She also stated that she did not remember having to sign any documents for the purchase of the MVB property. She confirmed that she did not contribute to the mortgage payments.

[149] In July 2001, the MVB property was sold and the Glendale property was purchased. The Respondent’s evidence was that he looked for the Glendale property on his own and wanted to buy it as a private sale from the vendor, Douglas Wheeler. However, as he needed to obtain a mortgage, he had to use a real estate agent and lawyer. His evidence, which was not disputed by the Applicant or Ms. Phillips, is that the Respondent had already made a verbal agreement with Mr. Wheeler for the Respondent to purchase the Glendale property prior to the Agreement of Purchase and Sale being prepared and signed.

[150] There is no dispute that the Agreement of Purchase and Sale, the Amended Agreement of Purchase and Sale, the Transfer/Deed of Land and the Charge/Mortgage of Land for the Glendale property were in both the Applicant and Respondent’s names and that where the parties were required to, they signed the documents. Both parties signed the Agreement of Purchase and Sale, the Amended Agreement of Purchase and Sale and the Charge/Mortgage of Land. The parties were not required to sign the Transfer/Deed of Land as it was only the vendor of the Glendale property who was required to sign. Therefore, neither party saw the Transfer prior to it being registered on title.

[151] It is also not disputed that the parties signed a Direction regarding title for the Glendale property. The parties also acknowledged that after the purchase of the Glendale property was completed, they received a reporting letter from the real estate lawyer which indicated that title to the Glendale property had been registered in both of their names, as joint tenants.

[152] The Applicant had minimal recollection as to what was discussed when she signed any documents for the sale of the MVB property and the purchase of the Glendale property. However, her evidence was that she recalls that the Respondent needed her name to be on title, but she denies any discussion that she would not be an owner of the Glendale property. She had a vague recollection of going to the bank to complete the mortgage application, but she stated that she did not understand much. She stated that she signed where she was told to sign. It should be noted that whenever the Applicant was asked about reviewing documents prior to signing them, she was dismissive and simply repeated that she signed where she was told to sign.

[153] The Respondent’s evidence was that his intention was to solely own the Glendale property and that the Applicant was merely a co-signor for the mortgage, not a co-owner of the property. He was clear that had he known that title was going to be registered such that he and the Applicant would be co-owners of the property, then he would not have bought the Glendale property.

[154] Both parties gave similar evidence with respect to the Direction for title, which they signed. The Direction included both of their names, dates of birth and the notation “jt”. The words “joint tenants” do not appear in the document. The Applicant and the Respondent both indicated that they did not know what “jt” meant and it was not explained to them prior to signing the Direction.

[155] Tammy Lyons, the law clerk whom the parties met with to sign the Direction for title, also gave evidence. Ms. Lyons was quite candid that given the passage of time, she did not have much of a recollection about meeting with the parties when they signed the Direction in July 2001. Her evidence outlined what the usual practice would have been – if a client had a question about how title would be registered, the client would speak to the lawyer who was responsible for the real estate transaction as it would not be her role to answer questions about title or explain the different options for how title could be registered. Neither the evidence of Ms. Lyons nor of the parties suggested that the parties had in fact met with the real estate lawyer prior to signing the Direction or that the notation “jt” was explained to the parties.

[156] Therefore, I find that at the time the parties signed the Direction for title, neither of them understood what the notation ‘jt’ meant and neither understood that title would be registered in both of their names as joint tenants.

[157] The Applicant relies on Chechui v. Nieman, 2017 ONCA 669, and argues that the Respondent knew he could have taken title in another way as he previously took title to the MVB property as a sole owner. The Respondent in Chechui owned property with his mother and they owned it as tenants in common. That property was subsequently sold, and the Respondent bought a second property with the Applicant. Title to the second property was registered in both their names as joint tenants. That Respondent’s mother also provided a gift of $1.7 million in favour of both of those parties to assist them to acquire the second property. That Respondent argued, however, that the gift was not a joint gift. The Court of Appeal noted, at paras. 35 and 36, that the trial judge accepted that the Respondent in Chechui understood the meaning of joint tenancy by virtue of owning the first property with his mother as tenants in common and there was no evidence that he tried to take title to the second property in a similar way. It was also noted that there was ample evidence before the trial judge that the gift from the Respondent’s mother was a gift to both parties and not a gift only to her son (the Respondent).

[158] In the case before me, however, the evidence is clear that neither party understood that, at the time the Glendale property was purchased, title was being registered in the names of both parties as joint tenants or that they understood what that meant.

[159] It was apparent from the parties’ evidence that they each subsequently learned what owning the property as joint tenants meant. However, it was not clear from either of their evidence when they actually acquired this knowledge. Based on their evidence, it appears that this knowledge was acquired after this litigation started.

[160] Therefore, I find that there was a gratuitous transfer to the Applicant. I accept the Respondent’s evidence that at the time the Glendale property was purchased, he intended to acquire the property in his name only and that he did not intend to gift 50% to the Applicant. The Applicant made no financial contribution to the purchase of the Glendale property. The Applicant did not make or contribute to any of the mortgage payments or the property tax payments.

[161] I now turn to the issue of whether there was an absence of consideration. The Applicant states that she provided consideration as she was a co-mortgagor for the Glendale property, and she remained liable on the mortgage.

[162] Based on the evidence before me, I find that as the Respondent was unable to secure a mortgage on his own, the Applicant had to be a co-applicant for the mortgage. The evidence of the parties was that the Applicant was working at the time and the Respondent earned less than he had been earning in previous years. His income was reduced as he was receiving Worker’s Compensation benefits due to a workplace injury.

[163] A gift of a beneficial interest in a property is not established where a party is on title for the purpose of obtaining financing and remains liable on the mortgage with no contribution to the mortgage payments or the upkeep of the property: see, for example, Zajko v. Knight, [2006] O.J. No. 3220 (S.C.), at paras. 22, 23; Gulf Oil Canada Ltd. v. O’Rourke; Gaunt v. Woudenbert, at para. 92.

[164] As stated above, there is no dispute that the Applicant made no financial contribution to the deposit for the Glendale property. The funds to purchase the property came from the proceeds of sale of the MVB property and the mortgage.

[165] There is no dispute that the Respondent made all the mortgage payments for the Glendale property and the payments were deducted from his bank account. The parties did not have a joint bank account. The Applicant also agreed that she was never called upon by the mortgagee to make a payment.

[166] When the mortgage had to be renewed, a court order was required. On October 3, 2010, Price J. ordered that the Applicant consent to an extension of the mortgage, the term being 5 years (open), and that the Respondent shall continue to make the payments. This order was made on consent of the parties.

[167] There is no evidence before me that the Applicant ever made an inquiry either of the Respondent or the holder of the mortgage to ensure that the mortgage was in good standing. When the Applicant had to leave the Glendale property on July 1, 2005, the Applicant did not notify the mortgagee of her change in address, or any of the subsequent changes of her address.

[168] As outlined above, I have determined that the parties’ date of separation is August 1, 1993. Therefore, at the time the Glendale property was purchased, the parties were living separate and apart in the same residence but were not divorced. The Glendale property was acquired after the parties separated.

[169] I find that the purchase of the Glendale property was a gratuitous transfer, not a gift, and without consideration from the Applicant. Therefore, I am satisfied that the Respondent has rebutted the presumption set out in s. 14 of the Family Law Act. The Respondent’s claim for a resulting trust is granted.

ISSUE THREE - RETROACTIVE CHILD SUPPORT

[170] On March 27, 2009, Ricchetti J. made a temporary order that commencing April 1, 2009, the Applicant pay to the Respondent $450 per month for child support. Ricchetti J. declined to order retroactive child support and his order was without prejudice to the Respondent’s right to seek retroactive child support at trial.

[171] In this trial, the Respondent claims retroactive child support from November 1995 to March 30, 2009. His position was that the Applicant did not make any child support payments during that time period. The Applicant did not dispute that she paid no child support during this period.

[172] Within her written submissions, counsel for the Respondent included a helpful summary of the Applicant’s yearly income between 1995 and 2007 and the child support payable for two children based on the Table Amount from the 2006 Federal Child Support Guidelines. According to these calculations, the Respondent claims that the arrears owed to him by the Applicant total $47,744.

[173] The Applicant requests that the claim for retroactive child support be dismissed. It was submitted that Aimy had left the Glendale home for a period of time and when she returned, she did not return to school. It was also submitted that Jessan was in the care of the CAS for approximately 18 months. It was also submitted that the Respondent had not provided calculations for the child support claimed. The Applicant did not provide the dates that, from her perspective, she claims Aimy and Jessan were not in the Respondent’s care. In her evidence, the Applicant indicated that she was no longer living at the Glendale property when Jessan was placed in the care of the CAS.

[174] As outlined above, I have found that the Respondent was the primary caregiver for the children once they moved to the MVB property in November 1995. Therefore, I am prepared to find that child support was payable to the Respondent as of November 1995.

[175] Child support is payable so long as each child is a child of the marriage as defined in s. 2(1) of the Divorce Act:

child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[176] The Schedule attached to the Respondent’s written submissions does outline how he arrived at the figure of $47,744. It sets out the Applicant’s yearly income. The time that the Respondent states that Aimy was not living with him and the time that he says Jessan was in care of the CAS are also set out in the Schedule.

[177] Aimy’s evidence was that she lived with her uncle in Montreal starting in the summer of 2005 and she returned sometime in 2006 and completed high school.

[178] Hermille Bouffard, the Respondent’s brother, testified that Aimy started to live with him in 2005 and she stayed with him for 10 to 11 months before returning to live with her father.

[179] I accept the evidence of Aimy and her uncle. There was no evidence presented that Aimy pursued post-secondary education.

[180] Aimy turned 18 years old on August 25, 2006 and therefore, I find that child support for Aimy is payable from November 1995 to May 2005 and from March 2006 to August 2006.

[181] With respect to Jessan, the Respondent’s evidence was that the CAS became involved with the family after July 2005. He stated that he worked voluntarily with the CAS and Jessan was placed in care of the CAS. I am prepared to accept that Jessan was in CAS care from March 2006 to December 2007, a period of 21 months, as there has been no evidence to contradict that these dates are accurate.

[182] Jessan turned 18 years old on July 12, 2009 and therefore I find that child support for Jessan is payable from November 1995 to February 2006 and from January 2008 to March 2009, taking into consideration that the Applicant started to pay child support on April 1, 2009 pursuant to Ricchetti J.’s order.

[183] With respect to the Respondent’s calculations, I note that there is a prior version of the Federal Child Support Guidelines that existed as of May 1, 1997. For 1995, 1996, and 1997, I applied the amount in the 2006 version as these were the amounts that the Respondent was seeking.

[184] The Applicant’s tax returns were not provided for 2008 and 2009 and her income for both years is imputed to be $30,350 (her income for 2007).

[185] I have determined that the total amount of arrears for child support owed by the Applicant is $39,821. For ease of reference, I shall summarize my findings for arrears owed by the Applicant in the table below:

| YEAR | APPLICANT’S INCOME | NUMBER OF CHILDREN | MONTHLY AMOUNT OF CHILD SUPPORT | TOTAL PAYABLE PER YEAR | | 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------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- The Applicant and Respondent were married on November 5, 1987 and divorced on February 11, 2018. They have two children, Aimy (born August 25, 1988) and Jessan (born July 12, 1991). The parties dispute the date of separation, ownership of the Glendale Avenue property, retroactive child support, retroactive section 7 expenses, and equalization of net family property.

The Applicant asserts that the date of separation was July 1, 2005, when she was removed from the Glendale property following an assault charge. The Respondent argues for an earlier separation date, ranging from late 1991/early 1992 to 1993. The court reviews factors for determining separation, including physical separation, withdrawal from matrimonial obligations, sexual relations, communication, social activities, meal patterns, household tasks, and finances.

The court finds the parties separated on August 1, 1993, based on a separation agreement signed in 1994, tax filings, and consistent evidence from the Respondent and their daughter Aimy regarding separate lives, even when residing in the same home (MVB and Glendale properties). The court rejects the Applicant's claim of sharing a bedroom and active participation in household tasks or finances.

Regarding the Glendale property, registered in both names as joint tenants, the Applicant claims a 50% interest and seeks partition and sale. The Respondent claims a resulting trust, arguing he intended to be the sole owner and the Applicant was only on title for financing. The court applies the presumption of resulting trust, noting that the Applicant made no financial contribution to the purchase, mortgage, or upkeep of the property. The court finds that the Applicant was on title solely to facilitate financing, not as a beneficial owner, and that the Respondent successfully rebutted the presumption of joint ownership. The Respondent's claim for a resulting trust is granted.

The Respondent seeks retroactive child support from November 1995 to March 2009. The court finds the Respondent was the primary caregiver during this period. Based on the Applicant's income and periods when children were in care or reached majority, the court calculates retroactive child support arrears of $39,821.

The Respondent also claims retroactive section 7 expenses for Aimy's orthodontics. The court finds that the total cost was $5,000, and the parties should share this 50-50. Since the Respondent has already paid $2,500 (half), no further amount is owed by the Applicant for this expense.

Finally, the Applicant's claim for equalization of net family property is dismissed as statute-barred. The court confirms the valuation date as August 1, 1993 (date of separation), and the application for equalization was issued on November 21, 2007, well beyond the six-year limitation period.

The court orders the Applicant to convey her 50% ownership interest in the Glendale property to the Respondent, who must remove her from the mortgage or refinance it. The Applicant is also solely responsible for paying off and removing all Legal Aid liens registered against the property. The Applicant is ordered to pay $39,821 in retroactive child support, with monthly payments of at least $300 commencing July 1, 2020.