Court File and Parties

COURT FILE NO.: FC-17-421 DATE: 2020-06-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RONALD JAMES MACINTYRE Applicant – and – IGOR ALEXANDER WINTER Respondent

Counsel: Michelle Blais for the Applicant Carol Craig and Ira Marcovitch for the Respondent

HEARD: January 20, 21, 22, 23, 24, 27, 28, 29, 30 and February 3, 2020 (at Ottawa)

REASONS FOR JUDGMENT

Shelston J.

[1] The applicant (“Ron”) seeks spousal support, security for spousal support, an equal division of the net proceeds of sale of the jointly owned property located at 421 Gillies Grove Road, Arnprior, Ontario. (“Arnprior property”) and costs.

[2] The respondent (“Alex”) denies that Ron is entitled to spousal support, seeks the repayment of all spousal support paid since March 1, 2018, the reimbursement of $480,248.82 from the net proceeds of sale of the Arnprior property with the balance to be shared equally, and costs.

[3] In his opening statement, Ron sought an order that Alex pay him the sum of $5,693.12 for his alleged overpayment of the joint expenses incurred post separation for the Arnprior property. During the trial, Alex provided a chart of his expenses incurred with supporting documents. Based on this late disclosure, Ron withdrew the claim.

Factual Findings

[4] The parties met on June 24, 1994 in Halifax, Nova Scotia. They separated on February 5, 2017 in Arnprior, Ontario. The parties never married and have no children.

[5] Ron is 57 years of age, has been under the care of a psychiatrist since April 2009 and stopped working in June 2010 due to mental health issues. Ron is in receipt of long-term disability benefits through the Canada Pension Plan and Manulife.

[6] Alex is 54 years of age, has been under the care of a psychiatrist since May 2009, is employed as a staff psychiatrist at the Royal Ottawa Hospital (“ROH”) and has private patients for which he bills OHIP directly. His income fluctuates from year to year.

Ron’s Apartment

[7] In March 1995, Ron moved from Halifax to Ottawa to start working for Bell Northern Research. In May 1995, Alex moved to Ottawa for his residency in family medicine and moved in with Ron.

[8] While living in Ron’s apartment, the parties paid various expenses. A significant part of this trial dealt with the specific financial contributions made by Ron and Alex from May 1995 to the sale of the Arnprior property in May 2018.

[9] I find that when the parties lived in Ron’s apartment, each party contributed to the expenses. I have not been requested to reconcile the various exhibits and charts submitted on the issue of the expenses to either Ron’s apartment, the Ottawa property or the Arnprior property. What is important is that the parties did not reconcile, at that time, the expenses that they paid while living in the apartment. While living in the apartment, the parties shared the domestic responsibilities.

[10] The parties resided in Ron’s apartment from May 1995 to December 1999.

The Ottawa Property

[11] While residing together, the parties considered buying a home. They went to the Royal Bank of Canada to be pre-approved for a mortgage. The parties viewed all different type of homes.

[12] On January 14, 1999, the parties purchased their first home, as joint tenants, located at 462 Island Park Drive, Ottawa, Ontario (“Ottawa property”) for $265,000. There was a joint mortgage secured against the property in the amount of $165,000. The mortgage payments were $599.24 biweekly which the parties agreed would be Ron’s responsibility. Alex provided the deposit of $5,000 and $99,081.92 as the down payment to purchase the Ottawa property.

[13] The Ottawa property sold on June 30, 2006 for $577,500. The parties received net sale proceeds of $435,828.25.

The Arnprior Property

[14] On December 12, 2005, the parties purchased 421 Gillies Grove Road, Arnprior, Ontario, as joint tenants, for $998,000. A joint RBC mortgage and line of credit were secured against the property. The purchase of the residence was financed as follows:

(i) $500,000 advanced from the Royal Bank of Canada with a secured mortgage of $891,000; (ii) $464,333.20 from the parties joint account with the Royal Bank of Canada; and (iii) $50,000 deposit.

[15] Within weeks of moving to the Arnprior property, the parties were subjected to verbal and physical harassment by individuals who were opposed to Ron and Alex living as a same sex couple. The homophobic harassment increased and intensified over time. Ron and Alex filed over 50 reports with the Ontario Provincial Police, of which one case resulted in a conviction for criminal harassment. As a result, Ron and Alex took extraordinary measures to protect themselves. Despite these measures, on one occasion, graphic and derogatory graffiti was written on the side of the house.

[16] Ron became greatly distressed by this turn of events, which manifested itself in him having difficulty sleeping, nightmares, being exhausted and having difficulty working. Alex developed a fear of confrontation, he had difficulty sleeping and he became a hypervigilant of the surroundings. Ron was concerned about the parties’ personal safety and added battery operated sensors throughout the property as well as cameras from inside the house as added security. In addition, the parties erected a six-foot high link fence on three sides of the home

[17] In April 2009, Ron started to see Dr. Evans, a psychiatrist in Ottawa who diagnosed Ron with major depression, anxiety and refractory depression. He saw the psychiatrist on a weekly basis and undertook various other procedures to deal with his stress.

[18] In May 2009, Alex also started seeing a psychologist, Dr. Richard, who diagnosed that Alex was suffering from a major depressive disorder with anxious distress.

[19] By June 2010, Ron was required to take a medical leave of absence from work. Ron was paid until the end of July 2010, when he started to receive short term disability payments from a private insurer. Ron applied for and was approved for the Royal Bank of Canada disability insurance plan which paid the monthly payments of the line of credit and mortgage payments for 24 months ending May 2012.

[20] Ron subsequently applied for and was approved to receive disability payments with Manulife which started on December 8, 2010, and for disability payments from the Canada Pension Plan which started on October 29, 2012. These payments continue today.

[21] Alex continued to work.

[22] Once Ron went on disability, Alex assumed most of the expenses including taxes and property insurance. Further, once the disability insurance ceased covering of the mortgage payments, Alex assumed that expense.

[23] In June 2016, Ron received a notice of termination from his employer. He retained counsel and a settlement was negotiated with Ron receiving approximately $50,000.

[24] In September 2016, Alex told Ron that he wanted to separate. After discussing the issue, the parties did not separate but by January 2017, the relationship was strained.

Separation

[25] On February 5, 2017, Ron told Alex the relationship was over. Alex was very upset and asked Ron to reconsider. Ron left the home, rented a room and never reconciled with Alex.

[26] By letter dated February 7, 2017, Ms. Blais, counsel for Ron, wrote to Alex addressing various issues such as the payment of the carrying costs of the home, listing the home for sale and a request that no contents be removed from the property. Six days later, despite receiving the letter, on February 13, 2017, Alex removed the bulk of the contents of the home, as well as the two dogs owned by the parties.

[27] Alex remained in the home until February 27, 2017 when Ron and Alex unexpectedly met at the Arnprior property. The police were called. No charges were laid. Alex was concerned about his personal safety and moved out.

[28] On March 1, 2017, Ron commenced these proceedings.

[29] The house remained vacant from the end of February until the end of April 2017. Both parties attended to check on the property. The carrying costs of the property were not being paid by either party.

[30] By letter dated March 22, 2017, Ms. Blais wrote to Alex’s counsel requesting that Alex pay $5000 per month to maintain the carrying costs of the property, that the property should be listed for sale and that the removed contents be returned. There was no reply.

[31] Ms. Blais sent another letter dated April 5, 2017 requesting that Alex pay the carrying costs, agreed to list the home with an agent proposed by Alex and sought to appraise the contents removed by Alex. Alex replied that he was now on disability.

[32] On April 5, 2017, Alex removed more contents from the Arnprior property without Ron’s consent or knowledge. On April 10, 2017, Ms. Blais wrote counsel for Alex advising that Ron had discovered the removal of more contents, that Ron would be moving back to the house to be present while the house was up for sale and to avoid the property being vacant for insurance purposes.

[33] At the end of April 2017, Ron moved back to the house. From February 5, 2017 to July 21, 2017, the parties could not reach an agreement on which real estate agent would list the property. At a case conference on July 21, 2017, with the consent of the parties, Master Champagne addressed, inter alia, the following issues:

i. set the terms for listing the Arnprior property for sale with an agent being Ms. O’Dea for $1.5 million; ii. directed that any dispute regarding the listing or sale of the Arnprior property would be arbitrated; iii. leave was granted for either party to bring any motions for temporary relief and set out a timetable for the exchange of pleadings; iv. directed that the net proceeds of sale of the property were to be held in trust pending agreement or court order; v. detailed disclosure obligations on each party to be provided by August 31, 2017, which included Ron providing documentary proof of the value of assets and liabilities on the date of cohabitation and separation; vi. ordered Alex to produce documentary proof of the $100,000 down payment towards the Ottawa property including proof of where the funds originated; vii. ordered Alex to provide documentary proof of his assets owned on the date of cohabitation, including proof of his Scotia McLeod account, investments, and proof of 50% ownership in 1784 Connaught Avenue, Halifax, Nova Scotia; viii. directed the questioning could occur up to a maximum of three hours; ix. ordered Alex to provide a certificate of disclosure within 45 days; and x. ordered the parties to schedule a settlement conference date following any motions.

[34] The Arnprior property was listed for a period of August 10, 2017 to February 8, 2018 with Ms. O’Dea. On August 10, 2017, Ron emailed Alex advising that he was moving out of the home, that Alex had to assume paying the carrying costs and would also have to deal with the sale of the property. Ron moved to an apartment in Bedford, Nova Scotia where he resides today.

[35] On October 19, 2017, Ron filed a motion seeking a finding that Alex was in contempt for his failure to comply with the order of Master Champagne dated July 21, 2017, seeking spousal support, security for spousal support, an order regarding the carrying costs of the Arnprior property and costs. In reply, Alex filed his own motion seeking disclosure from Ron as well as the production of Dr. Evans’ psychiatric file and Ron’s OHIP records.

[36] From October 16, 2017 to February 8, 2018, Ms. O’Dea emailed the parties providing updates on any activity regarding the listing, suggesting a 5% reduction in the listing price, and stating that the property was not being maintained. In December 2017, Alex emailed the agent seeking to remove the listing of the home from the MLS listing. She refused.

[37] On March 5, 2018, Justice Engelking, with the consent of the parties, ordered the following:

(i) on a without prejudice basis to either party seeking an adjustment for payment of joint home expenses since February 5, 2017, the parties to share equally the carrying costs of the property including mortgage/joint line of credit, property insurance and utilities; (ii) commencing March 1, 2018, ordered Alex to pay Ron $3000 per month as spousal support on a without prejudice basis, with Ron claiming retroactive spousal support to the date of separation and claiming a higher amount of spousal support retroactive and ongoing. Further, the order was without prejudice to Alex’s ability to claim that no spousal support or lower spousal support should be payable on a retroactive and ongoing basis; (iii) ordered Alex to maintain his life insurance policy with Great West Life with a face amount of $200,000 as security for spousal support, with Ron as the irrevocable beneficiary pending trial or further order of the court or agreement of the parties; and (iv) ordered Alex to pay Ron’s costs for the motion in the amount of $9,000.

[38] From January 2018 to February 8, 2018, the agent was seeking to extend the listing agreement to March 1, 2018. While Ron was prepared to make such an extension, Alex failed to reply to the emails. The listing agreement expired despite requests by Ron to a further extension of the listing agreement, among other issues. There was no agreement and Ron initiated the arbitration process set out in Master Champagne’s order dated July 21, 2017 to address the listing of the property. The parties set a date for arbitration on March 8, 2018 at 6:00pm.

[39] On March 7, 2018 at 2:00pm, a lawyer for a Mr. J.P.Blais emailed counsel for the parties attaching an offer to purchase the property for $1,302,500, with certain conditions. The offer was open for acceptance until 5:00pm on March 8, 2018.

[40] On March 8, 2018, Alex advised that he wished to accept the offer. Approximately half an hour later, the previous listing agent, Ms. O’Dea, emailed the parties an offer from a third-party unrelated purchaser to purchase the property for $1,380,000, with only two conditions regarding house inspection and water testing but subject to a real estate commission.

[41] Later that same day, Mr. Blais amended his offer and submitted a new offer to buy the property for $1,380,000 without any commission. The parties accepted the offer. Unbeknownst to Ron, Alex and Mr. Blais were in a relationship. Only after the sale closed did Ron become aware that Alex had lent Mr. Blais $250,000 to purchase the property.

[42] When the Arnprior property was sold on May 24, 2018, the outstanding mortgage and line of credit, as well as other necessary expenses related to the sale, were paid off. The balance of $657,213.25 was placed in the trust account of the lawyer acting on the sale.

RON’S SPOUSAL SUPPORT CLAIM

Position of the Parties

[43] Ron seeks indefinite spousal support on a compensatory and non-compensatory basis. Ron does not seek support as of the date of separation, does not seek a variation of the temporary order of Justice Engelking dated March 5, 2018 and seeks a prospective award of spousal support.

[44] Alex denies that Ron is entitled to spousal support and seeks the return of all support payments made since March 1, 2018.

Legislative Framework

[45] Section 30 of the Family Law Act (“FLA”) provides that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of.

[46] Section 33(1) of the FLA provides that a court may, on application, order a person to provide support for his or her dependents and determine the amount of support.

[47] Section 33(8) of the FLA provides that an order for support of a spouse should:

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provisions to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Part One.

Entitlement to Support

[48] Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunities which the spouse has forgone for the sake of the family or other spouse. Generally, compensatory awards are seen where one spouse has sacrificed career opportunities, has made significant contributions to the household, and where one spouse has made significant contributions to the other spouse’s career. Kerr v. Erland, 2014 ONSC 3555.

[49] In Bennett v. Young, 2009 ONSC 4400, the court stated at paragraph 208:

The point of compensatory support and its statutory enabling in s. 33(8) of the Family Law Act is meant to acknowledge the contributions of one spouse to the domestic sphere and the effect of that contribution in future. Rather than merely allowing for support as a limited, means-to-and-end to make the other party “self-sufficient”, the Supreme Court of Canada has emphasized that support should knowledge the significant domestic contributions during the existence of the family as a unified entity, and as a way to reposition the family, post-dissolution, to the same place.

[50] Under Section 30 of the FLA, every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable. This is consistent with the concept of marriage as a partnership.

[51] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which he or she was accustomed to at the time cohabitation ceased. The analysis must consider the recipient’s ability to support him or herself, in light of his or her income and reasonable expenses. Gray v. Gray, 2014 ONCA 659.

[52] Where a spouse maintains a similar standard of living to that he enjoyed before separation, there is no basis for a needs-based, non-compensatory claim for support. Lamothe v. Lamothe.

[53] Non-compensatory support may arise from the mere fact that a person who formerly enjoyed inter-spousal entitlement to support now finds herself or himself without it. A party’s accustomed standard of living during a relationship is an appropriate part of context upon which need should be based. Blackstock v. Comeau, 2018 ONSC 193.

[54] The word “need” is not limited to one’s basic needs. It can be interpreted to cover situations where a spouse suffers a significant decline in the standard of living, he or she enjoyed during the relationship. Nixon v. Lumsden, 2020 ONSC 147.

Is Ron Disabled?

[55] I find that Ron suffers from major depression that has worsened over time and has never been in remission. In 2014, Dr. Evans diagnosed Ron as suffering from post-traumatic stress disorder (“PTSD”) which manifested itself in night sweats, being hypervigilant, having nightmares, constantly being on edge, avoidance of social interaction and being constantly in the fight or flight mode. She testified that Ron has been struggling with these issues ever since she started seeing him in 2009. She has been treating him since he moved to Nova Scotia by providing him with medication and various techniques to address his significant challenges.

[56] In her opinion, Ron has moderate to severe depression and PTSD. He cannot tolerate any change and for that reason he follows a very strict routine. Ron testified that he eats the same meals every day with breakfast and lunch at McDonald’s, where he has a Pepsi and a bagel sandwich and having scrambled eggs and ham every night for supper.

[57] Dr. Evans testified that Ron has been so sick for so long, but he must reset his expectations to have a more meaningful life and that it may be unattainable to ever return to optimal mental health. Further, she opines that his cognitive ability has been negatively affected by 10 years of major depression. In Dr. Evans’ opinion, Ron is not able to work.

[58] In closing submissions, Alex conceded that there is no evidence that Ron will be able to return to work at any time.

Alex’s Disability

[59] Alex retained Dr. Ricci to prepare a psycho-vocational assessment for this litigation which she did, dated May 15, 2019. Dr. Ricci concluded that Alex was suffering from a major depressive disorder with anxious distress, which significantly impacts his ability to engage in social, leisure and occupational activities as well as home making and personal care pursuits.

[60] In Dr. Ricci’s opinion, Alex’s prognosis with respect to improvement of his major depressive disorder and related impairments is considered fair at this time. In her opinion, it is probable that once the litigation has been resolved, he will require intensive psycho-therapeutic assistance but that his overall mental health condition will improve and become more stabilized. Further, in her opinion, Alex is able to continue working as a doctor, however at a reduced capacity and also that his current condition precludes his ability to return to working full-time as a doctor.

[61] Dr. Richard, Alex’s treating psychiatrist since May 2009, provided information to Dr. Ricci for the preparation of the report. Despite resuming the treatment of Alex in May 2019, there have been no reports submitted by Dr. Richard. The only updated information is based on a telephone call between Dr. Ricci and Alex on January 14, 2020, during which time Alex advised that he was still depressed and having difficulty at work, but that he had returned to seeing Dr. Richard in May 2019.

[62] I am concerned that Dr. Ricci was not given important information from Alex. Dr. Ricci was unaware that Alex had stayed at the Arnprior property for four months in 2018, that he was residing there four days per week with Mr. Blais and that he was working at long term care facilities and billing OHIP. Dr. Ricci confirmed that Alex presented that he was living with a roommate in an apartment and that his only source of income was from the ROH. I am concerned that Alex has attempted to portray himself in a much worse light than he actually is in order to receive some advantage in the assessment. This attempt by Alex, in my opinion, is another factor that gives me concern about Alex’s credibility and reliability as a witness in this trial.

[63] I find that Alex is and will continue to suffer from a major depression disorder for the foreseeable future and that Alex cannot work full-time at this time but that his prognosis was fair to return to work on a full-time basis in the future.

Compensatory Support Claim

[64] I do not find that Ron has an entitlement to compensatory spousal support. From May 1995 until June 2010, Ron worked in the high-tech field. He was promoted throughout his career and his income increased. In 1995, Ron’s income was $38,984 and by the time he went on disability in June 2010, he was earning approximately $128,766 in 2009. Ron admitted that he did not forgo any career opportunities and that his career path was never affected by his relationship with Alex.

[65] When Alex met Ron, Alex was already a medical doctor and came to Ottawa to work in his family residency program. He then started his own family practice, moved to the Elizabeth Bruyère Hospital and then the ROH. Throughout his career, he also earned income through his OHIP billings.

[66] Ron alleges that he contributed to Alex’s career when in 2004 Alex became Director of Medical Services. Ron indicated that he encouraged Alex, was his mentor on administrative issues and would actually take calls at work from Alex to reword and edit written replies. Further, Ron argues that the he assisted Alex in the estate litigation and that his contribution went above and beyond a loving spouse. I find that the services provided by Ron to Alex were part of their journey as life partners. I agree with Alex that the contributions made by Ron towards Alex’s career were not direct contributions and were not significant, but they were an example of Ron providing emotional support to Alex.

[67] Based on these findings, I do not find that Ron has an entitlement to spousal support on a compensatory basis.

Non-Compensatory Spousal Support

[68] Ron argues that he is entitled to non-compensatory support based on the significant decrease in the standard of living post-separation. Ron submits that Alex continues to live a lavish lifestyle post-separation while Ron has suffered a drastic change in lifestyle post-separation.

[69] A significant amount of trial time and documentary evidence addressed the financial contributions made by both parties during their cohabitation. When the parties moved from the Ottawa property to the Arnprior property, more documents, charts and trial time was spent on reviewing the parties’ respective contributions to the carrying costs of their lifestyle.

[70] I find the evidence indicates that the parties contributed roughly an equal amount to their joint expenses up to the time that Ron fell ill and could not work. What is more relevant for my purposes though, is that there was no reconciliation or request for reconciliation or reimbursement by either party throughout the cohabitation.

[71] I find that while the parties cohabitated from May 1995 to February 2017, they had a very good lifestyle. They never budgeted. If they wanted something, they bought it. If Alex needed funds to pay his income taxes or pay his lawyer representing him in the estate litigation, he borrowed the amount from the joint line of credit. If Ron needed to purchase a boat, a car or to reimburse himself, he drew the money from the joint line of credit. The parties always paid down these expenses.

[72] From 1999 to 2005 when they lived at the Ottawa property, they had an arrangement where Ron would pay for the mortgage and Alex would pay the utilities and exceptional expenses like improvements to the home. They divided up the household responsibilities and relied upon each other to pay the expenses.

[73] From 2005 to June 2010, while they lived in Arnprior, they shared expenses with Ron paying the mortgage and Alex paying all other expenses. Here again they divided up the household responsibilities. When Ron fell ill in June 2010, the disability insurance related to the mortgage paid the monthly mortgage payments while Alex assumed all of the remaining expenses. Once the disability insurance stopped paying the mortgage, Alex assumed that expense. Ron paid for the housecleaners.

[74] Despite the parties having separate bank accounts, investments and filing their income taxes separately, they were economically interdependent.

[75] By separation in 2017, the parties were residing in a beautiful home on the Ottawa River valued at $1.4 million, had collected fine arts and antiques over the years that were in the home, had expensive vehicles and both had personal trainers. The parties undertook renovations to the beachfront of the property and installed a fence around the house. The parties also shared the domestic functions including grocery shopping, cutting the grass, cooking, snow blowing the driveway, painting, etc.

[76] During the parties’ relationship, Alex paid for part of Ron’s gym membership, paid for the vacations to the East Coast and paid a large amount of the household expenses after Ron became ill. I accept Alex’s evidence that he was surprised to learn during this litigation what Ron’s actual income was after Ron stopped working in 2010. I accept Ron’s explanation as to his income estimate of Alex’s income set out in his pleadings. I do so because it was clear that the parties never prepared or exchanged income tax returns and never disclosed or were asked to disclose any of their financial information. The parties operated on the basis of their verbal agreement that Ron would pay the fixed costs for the house and Alex would pay everything else.

[77] Today, Ron lives in a two-bedroom apartment in Bedford, Nova Scotia. He has been seriously psychologically damaged on a permanent basis. His life is very simple. Every morning he gets up, takes the dog out, drives to the local McDonald’s restaurant, has a Pepsi and a bagel sandwich, returns to his home for the morning or runs errands, returns to the same McDonald’s restaurant for the same meal at lunch and then returns to his apartment. He may go out for a walk with the dog or simply stay home. For supper, he eats the same meal, being eggs and ham warmed up in a microwave. He goes to bed before 6:00 pm and it takes him at least 2 to 3 hours before he can fall asleep. The next day he starts the same process over again. One of his pleasures is to take long drives around Nova Scotia on the motor vehicle he purchased after separation.

[78] To say that Ron’s current circumstances are a far cry from when he lived in the jointly owned home in Arnprior would be an understatement. On the other hand, Alex lives at the Arnprior home four of seven days per week.

[79] However, the fact that Alex makes more than Ron is not enough to justify an entitlement to spousal support on a non-compensatory basis. Ron must show that he needs spousal support, that Alex can afford to pay spousal support and that his similar standard of living is not similar to that enjoyed before separation.

[80] In Ron’s January 15, 2020 financial statement, he indicated that his annual expenses are $227,203 which is approximately $18,933.58 per month. Of that amount $9,467.62 represents the legal costs that he has been paying in 2019 plus $417.22 related to travel expenses to conduct this litigation. Ron testified that he has spent approximately $215,000 on legal fees up until the end of December 2019 but has been financing them by the drawing down of his investments.

[81] When this litigation is over, Ron will no longer be required to incur the $9,884.84 per month for legal fees, reducing his monthly budget to $9,048.74 per month. From that sum, Ron has admitted that he is not incurring the $600 per month for massage and indicated, when questioned, that he had no explanation or proof of other expenses listed on his budget.

[82] With respect to his proposed budget, Ron testified that his annual anticipated expenses would be $174,000 per year. Ron indicated that his proposed budget has a new monthly cost of $2500 per month while at the same time indicating that he has no intention of moving from his current apartment which costs $1700 per month. He also indicated that he is not paying $1080 per month for new biofeedback equipment despite that figure being on his financial statement.

[83] While Ron’s financial statements are contradictory and will be significantly reduced when this litigation is over, Ron’s current standard of living is significantly less than his standard of living while living with Alex. However, in looking at the lifestyle that he lived and the lifestyle that he is currently living, even on the income that he is receiving, he cannot maintain any semblance of a similar standard of living and for that reason, I find that Ron is entitled to needs based spousal support.

Ron’s Income

[84] From 2011 going forward, Ron main source of revenue was through the Canada Pension Plan disability benefit and the private non-taxable disability benefit.

[85] Ron’s current income is comprised of taxable Canada Pension Plan disability benefits as well as non-taxable Manulife disability benefits. In the year 2018, his total income from both sources, factoring in an automatic gross upon the non-taxable private disability income, calculates it as an annual income of $105,714. I have used that income for the year 2018 going forward for spousal support purposes.

[86] I have not included in Ron or Alex’s income determination any of the income received for cashing in their investments to pay the legal fees to fund this litigation or to pay their ongoing expenses. Fournier v. Labranche, 2019 ONSC 4651 and Zigiris v. Foustanellas, 2016 ONSC 7528.

Alex’s Income

[87] From 2011 to 2017 inclusive, Alex earned the following amounts;

i. 2011 - $270,742; ii. 2012 - $266,026; iii. 2013 - $187,540; iv. 2014 - $248,423; v. 2015 - $230,437; vi. 2016 - $191,942.52; and vii. 2017 - $153,537.93.

[88] The income earned by Alex during these years included taxable capital gains interest and investment income and net business income.

[89] Alex’s income is derived from his employment at the ROH and his OHIP billings. On February 3, 2020, prior to the start on submissions, Alex consented to the imputation of $10,000 per year based upon on a 4% interest rate attributable to the $250,000 that he advanced to J.P. Blais on May 16, 2018.

Year 2018

[90] Alex’s position is that his income is $81,494, being self-employment income plus $10,000 of imputed interest income on the $250,000 loan to Mr. Blais for total income of $91,494. Alex filed his 2018 income tax return but admitted that he had not filed it with the Canada Revenue Agency.

[91] A party who fails to provide disclosure that is required in a court proceeding does so at his own risk. Section 19 of the Child Support Guidelines provides the court with the necessary authority to impute income to a party. The decision is discretionary and must be based on rational and solid evidentiary basis. The burden of proof is on Ron to establish a prima facie case that income should be imputed. If the onus is met, then the onus shifts to Alex to defend his position. Mignault v. Lauzon, 2018 ONSC 5442.

[92] In this case, Alex had an obligation to provide the information to allow the court to determine his income. He has failed to provide all of the relevant information. I agree with Ron’s submission that an adverse inference must be drawn by Alex’s failure to provide the best evidence as to his income for 2018 and 2019.

[93] I find that Alex’s income in 2018 shall be based on the last income tax return filed, being his income tax return for the year 2017. I find that Alex’s income in 2018 is $129,725 based on the following:

i. Employment income in the amount of $119,725 based on Alex’s 2017 income tax return; and ii. $10,000 based on his admission of the imputed interest income on his $250,000 loan.

Year 2019

[94] For the year 2019, Alex’s position is that his income is derived of employment income of $91,080, $10,000 imputed income and $10,114 of self-employment income for a total of $111,194.

[95] Alex testified that he could not find a bookkeeper to tabulate his OHIP billings for 2019 for this trial. I find that answer ridiculous. Alex had a legal obligation to provide to this court all sources of his income to permit the court to calculate his income for support purposes. I do not accept Alex’s excuse that he could not find a bookkeeper. I find that Alex’s actions are consistent with his flagrant breaches of the orders of Master Champagne and Justice Engelking.

[96] As Alex has not produced any evidence upon which to base his OHIP billing, I find that Alex’s income is $115,480 based on the following:

i. employment income from the Royal Ottawa Hospital and OHIP in the amount of $105,480 based on Alex’s financial statement dated August 23, 2019; and ii. $10,000 based on his admission of the imputed interest income on his $250,000 loan.

Quantum of Spousal Support

[97] Section 33(9) of the FLA states that in determining the amount and duration, if any, of support for a spouse or a parent in relation to need, the court shall consider all the circumstances of the parties, including:

(a) the dependent’s and respondent’s current assets and means; (b) the assets and means that the dependent and respondent are likely to have in the future; (c) the dependent’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependent’s and respondent’s age and physical and mental health; (f) the dependent’s needs, in determining which the court shall have with regard to the accustomed standard of living while the parties resided together; (g) the measures available for the dependent to become able to provide for his or her own support and the length of time and cost involved to enable the dependent to take those measures; (h) any legal obligation of the respondent or dependent to provide support for another person; (i) the desirability of the dependent or respondent remaining at home to care for a child; (j) a contribution by the dependent to the realization of the respondent’s career potential; (k) repealed; (l) if the dependent is a spouse: i. the length of time the dependent and responded cohabitated; ii. the effect on the spouses earning capacity of the responsibilities assumed during cohabitation; iii. whether the spouse has undertaken the care of a child who is of the age of 18 years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents; iv. whether the spouse has undertaken to assist in the continuation of a program of education for a child 18 years of age or over who was unable for that reason to withdraw from the charge of his or her parents; v. any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s network; and vi. the effect on the spouse’s earnings and career development of the responsibility of caring for a child. (m) Any other legal right of the dependent to support, other than out of public money.

[98] Section 34(5) of the FLA provides that that in an order under clause (1)(a), other than an order for the support of a child, the court may provide that the amount payable shall increase annually on the order’s anniversary date by the indexing factor, as defined in subsection (6), for November of the previous year.

[99] Section 34(6) of the FLA provides that the indexing factor for a given month is the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada.

[100] In determining the quantum of spousal support, I have taken into consideration the ranges and duration of spousal support as set out in the Spousal Support Advisory Guidelines (“SSAG”) calculations.

Year 2018

[101] The applicant has provided Divorcemate calculations as schedules A and B. Schedule A refers to the calculations for the year 2018 and schedule B refers to the calculations for 2019 going forward.

[102] For the year 2018, the range of spousal support based on my findings as to the parties’ incomes are as follows:

i. low range - $660 per month, leaving the payor were 51.4% of the net disposable income; ii. mid range - $770 per month, leaving the payor with 50.9% of the net posable income; and iii. high range - $880 per month, leaving the payor with 50.3% of the net disposable income.

[103] I have taken into consideration the 22 years of cohabitation, the parties’ incomes, the parties’ expenses, the SSAG, the Divorcemate calculations and the net disposable income based on the various levels of spousal support.

[104] I find it is fair and reasonable that Alex should have more net disposable income than Ron because he is going to work at this time. Consequently, I have chosen the low end of the SSAG ranges of support as applicable in these circumstances.

[105] I order Alex to pay to Ron spousal support of $660 per month from February 1, 2018 to and including December 1, 2018.

Year 2019 Going Forward

[106] The range of spousal support based on my findings as to the parties’ incomes are as follows:

i. low range - $269 per month, leaving the payor with 50.8% of the net disposable income; ii. mid range - $313 per month, leaving the payor with 50.6% of the net disposable income; and iii. high range - $358 per month, leaving the payor with 50.4% of the net disposable income.

[107] I have taken into consideration the same factors used to determine the quantum of spousal support for the year 2018 in arriving at my decision. Again, I have chosen the low end of the range of the SSAG’s because Alex continues to go to work.

[108] Commencing January 1, 2019, I order Alex to pay to Ron spousal support of $269 per month.

Duration of Spousal Support

[109] In determining the duration of spousal support, I have taken into consideration the following factors:

i. the length of the parties’ cohabitation; ii. the age of the parties at the date of separation; iii. the non-compensatory entitlement of Ron to spousal support; and iv. the SSAG recommendation that the entitlement to support is of indefinite (unspecified) duration, subject to variation and possibly review.

[110] I find that Ron’s financial circumstances may not change very much in the future to allow him to return to work, even on a part-time basis. On the other hand, while Alex suffers from mental health challenges, it is anticipated that he will return to work on a full-time basis and will earn more income.

[111] Taking all these factors into consideration, I order that the spousal support is to be payable on indefinite basis subject to variation in the event of a material change in circumstances.

Lump Sum Spousal Support

[112] In closing submissions, Alex raised, for the first time, the option that he would pay Ron a lump sum amount of spousal support being either $14,469 representing 10 years of support or $36,268 representing an indefinite support. Ron replied that the issue of lump sum spousal support was not pled, not raised in the opening statement and was raised for the first time in the closing submissions. Further, Ron submits that it is inappropriate as Alex’s circumstances may change in the future.

[113] I agree with Ron’s position that the issue of lump sum spousal support was never pled or raised until final submissions and that it would be unfair to Ron to consider this claim for relief. Further, even if I were to consider a lump sum payment, I do not find that the facts of this case, a lump sum payment is appropriate in the circumstances. I find that Ron is entitled to receive periodic non-compensatory spousal support that may vary in the event of a material change in circumstances.

Annual Financial Disclosure and Adjustments to Support Payments

[114] I order Alex to provide to Ron a copy of his filed 2018 and 2019 income tax return as soon as they are available and a copy of the notices of assessment within 10 days of receipt.

[115] Annually but no later than April 30, commencing in 2021, the applicant and the respondent shall file their personal income tax returns from the previous calendar year.

[116] No later than June 30 of each year, the Ron and Alex shall exchange copies of:

a) their personal income tax returns from the previous calendar year, including all schedules and attachments. Alex shall also provide his corporate year-end financial statements and corporate income tax return if his professional corporation becomes active again; b) their notice of assessment and reassessment issued by Canada Revenue Agency for the previous calendar year; c) documentary proof of any disability income from the previous calendar year that is not reflected in a parties’ line 150 income; and d) documentation which confirms their year to date gross incomes from all sources.

[117] I order that on the first day of March of each year, starting on March 1, 2021, the monthly amount of spousal support will increase by the indexing factor for the third month immediately before the indexing date in that year. The “indexing factor” means the percentage change in the Consumer Price Index for Canada for prices of all items for February of each year, as published by Statistics Canada. For the purposes of any such computation, the base month will be February 2019.

[118] Spousal support may be varied by either parties’ request in the event a material change in either of their own circumstances.

Security for Spousal Support

[119] Section 34(1) of the FLA provides that a court may require a spouse who has a policy of life insurance as defined under the Insurance Act to irrevocably designate the other spouse or child as the beneficiary.

[120] In Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, the Court of Appeal canvassed the factors to be considered by the court on the issue of life insurance securing support obligations as follows:

The factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, are as follows: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.

[121] Currently, Alex has designated Ron is the revocable beneficiary of his life insurance policy in the amount of $200,000. Alex has only partially complied with the court ordered obligation.

[122] In determining the amount of life insurance to secure the support obligation, I have taken into consideration the Divorcemate calculations set out in schedules A and B. In schedule A, based on a monthly support payment of $660 per month, the midpoint of the life insurance is $123,354. In schedule B, based on a support payment of $269 per month, the midpoint is $49,706.

[123] Ron submits that Alex should have life insurance of $149,000 to secure his spousal support obligation in the event that Alex’s income is deemed to be $129,725. In the alternative, Ron submits that if Alex’s income is deemed to be $115,480, the amount of life insurance required to secure his spousal support obligation is $58,000.

[124] Alex did not specifically address the quantum of life insurance but rather argued for a lump sum payment. I have rejected the request for lump sum payment for the reasons set out herein.

[125] I have found that at this time, Alex’s income is $115,480. Based on the spousal support payment of $269 per month and the SSAG’s spousal support lump sum calculation, I have selected the midpoint of $49,706 and have rounded it off to $50,000.

[126] I order that Alex designate Ron as the irrevocable beneficiary of a life insurance policy with a minimum amount of $50,000 for so long as Alex has an obligation to pay spousal support to Ron. Alex is to provide Ron with a copy of the designation within 30 days of the release of these Reasons for Judgment. The amount of life insurance may be varied in the event of a material change in circumstance.

Reimbursement of the Spousal Support

[127] Alex’s position is that he should be reimbursed the $3000 per month that he has been paying as spousal support since February 1, 2018. Ron’s position is that there should be no readjustment of the spousal support because Alex has not filed his 2018 income tax return and the information for 2019 is incomplete because he has not produced any records regarding his OHIP billings.

[128] Alex testified that he did not file his 2018 income tax return because he could not afford to pay the tax that would be payable but at the same time lent Mr. Blais $250,000 in May 2018 without any interest and without any written documentation.

[129] In spite of failing to provide the required financial disclosure and file his 2018 income tax return, Alex’s position is that Ron should reimburse him all of the spousal support paid since March 1, 2018.

[130] Since March 1, 2018, Alex has been paying monthly spousal support of $3000 per month to Ron pursuant to a consent order of Justice Engelking dated March 5, 2018. The order was without prejudice to Ron’s ability to claim retroactive spousal support to the date of separation and to claim a higher amount of spousal support retroactive and ongoing. The order was also without prejudice to Alex’s ability to claim that no spousal support or lower spousal support should be payable on a retroactive and ongoing basis.

[131] The parties agreed that Alex’s income was $192,613 when they entered into the consent order on March 5, 2018 using the average of Alex’s income for the years 2015, 2016 and 2017. Alex submits that his actual income from 2018 to date is significantly less and that Ron should repay the support.

[132] I find that Alex’s income was not $192,613 in 2018, 2019 and at trial. I find that both parties were on notice that if the determination of the parties’ respective incomes were different than the basis for the consent order, there could be an amount owing either way by either party.

[133] There is an issue of the retroactive variation of the spousal support and the implications on each party’s income tax returns. In arriving at my decision, I do so on the basis that Alex testified that he had not filed his 2018 income tax return. Consequently, there are no tax implications to Alex that needed to be taken into consideration on the repayment of the overpayment. With respect to Ron, he had filed his 2018 income tax return by the trial. No submissions were presented with respect to what income tax considerations should be taken into account in making any retroactive variation of February 1, 2018.

[134] My calculation of the gross amount of the spousal support paid less the quantum of spousal support ordered from February 1, 2018 to December 1, 2018 is $3000 less $660 = $2340 x 10 months = $23,400.

[135] My calculation of the gross amount of the spousal support paid less the quantum of the spousal support ordered from January 1, 2019 to June 5, 2020 is $3000 less $269 = $2731 x 18 months = $49,158.

[136] I order that Ron pay to Alex the sum of $72,558 for the overpayment of spousal support from February 1, 2018 up to and including June 2020. I order that this amount will be deducted from Ron’s share of the net proceeds of sale of the Arnprior property after the decision on costs.

PROPERTY CLAIMS

Division of the Net Proceeds of Sale of the Jointly Owned Property Located at 421 Gillies Grove Road, Arnprior, Ontario

[137] Ron seeks an order that the net proceeds of sale of the Arnprior property shall be divided equally between the parties, subject to the cost award. In his application, Ron had originally sought an unequal division of the net proceeds of sale of the Arnprior property. Prior to the trial, Ron did not amend his pleading in writing. There was some dispute as to whether or not Alex was aware that Ron had amended his claim for relief with respect to the Arnprior property. Despite no formal amendment being made, I proceeded on the bases that both parties were aware by the time of the trial that Ron had amended his position.

[138] Alex seeks an order that he receive the first $480,248.82 of the net proceeds of sale of the Arnprior property broken down as follows:

i. $104,081.92 towards the purchase of the Ottawa property based on the deposit of $5000 made on November 30, 1998 and $99,081.92 made on January 14, 1999; ii. $514,333.20 towards the purchase of the Arnprior property comprised of the following: a) $50,000 on March 6, 2005 plus; b) $464,333.20 on December 12, 2005, comprised of the following:

1. $150,000 deposited in the parties joint account in October 2005
2. $250,000 deposit in the parties joint account on November 23, 2005; and
3. $65,000 deposit in the parties joint account on December 9, 2005 c) Alex received reimbursement of $138,166.30 from the proceeds of sale of the Ottawa property, in partial satisfaction of the $150,000 payment made in October 2005; d) the remaining net proceeds of sale shall be distributed to the parties on an equal basis subject to Alex being reimbursed all spousal support paid from March 1, 2018 to February 1, 2020 to be paid from Ron’s portion of the net proceeds of sale of the Arnprior property.

Legislative and Jurisprudential Framework

[139] Section 14 of the Family Law Act provides that the rule of law applying a presumption of 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 the property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, but 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).

[140] In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, the court enunciated specific principles that are applicable when there is the gratuitous transfer of property between non-married individuals:

The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. The burden of proof is on the transferee to demonstrate that a gift was intended where the transfer is made for no consideration.

Depending on the nature of the relationship between the transferor and the transferee, the presumption of a resulting trust will not arise and there will be a presumption of advancement instead. In that circumstances, the burden of proof is on the transferor to rebut the presumption of a gift.

[141] In Johnston v. Song, 2018 ONSC 1005, Sheard J. stated the following with the presumption of resulting trust at paragraphs 23 and 24 of her decision:

23. A resulting trust arises when title to property is owned one person’s name but that party, because he gave no value for the property is under an obligation to return it to the original titleholder. In certain circumstances there may be a presumption of resulting trust. The presumption of resulting trust is a rebuttable presumption in law that applies to gratuitous transfers. If a presumption of resulting trust applies, the transferor is presumed to have intended to retain beneficial ownership of the property. Where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. The onus of proof is a civil standard: the balance of probabilities.

24. By virtue of section 14 of the Family Law Act, property that is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses intended to own the property as joint tenants. However, under that section, spouse is defined to mean persons who are married to each other. Here, the parties are not married and, therefore, the common law presumption of resulting trust applies

[142] The crucial time in determining the intention of the parties is at the time of the purchase to determine if the there was an intention to gift or to grant a trust. It is not open to the transferor to show that at a later time, he intended a resulting trust. Griffith v. Davidson, 2017 ONSC 187 Madill v. Leach, 2010 ONSC 4463.

[143] In Howie v. Schulz, 2010 ONSC 5024, Warkentin J. found that the down payment was not intended to be repaid prior to calculating the defendant’s share in the proceeds of sale for four reasons:

i. there was no written agreement regarding the payment of the funds for the down payment and no evidence that either party sought legal advice regarding this issue, notwithstanding that they had been making plans to live together for close to one year prior to purchasing a home together; ii. she accepted that the purchase price was lowered and the defendant by her personal relationship with the vendor obtained a discount in the purchase price; iii. the parties instructed the lawyer acting for them on the purchase that the title to the home was to be held in joint tenancy with a right of survivorship; and iv. the parties instructed their lawyer acting on the sale of the home to divide the proceeds equally between them without taking into account the down payment made by the plaintiff.

[144] In McNamee v. McNamee, 2011 ONCA 533, the Court of Appeal set out the three essential factors constitute a legally valid gift being:

i. an intention to make a gift on the part of the donor, without consideration or expectation of remuneration; ii. an acceptance of the gift by the donee [sic]; and iii. a sufficient active delivery or transfer of the property to complete the transaction for a gift to take effect.

[145] Ron has the burden of proof to prove, on a balance of probabilities, that Alex intended to gift Ron the monies used to purchase both the Ottawa and Arnprior properties.

[146] If Ron can discharge his burden, the net proceeds of sale will be divided equally. If he cannot, Alex is entitled to be reimbursed the funds that he used to purchase both properties.

[147] For Alex to succeed on unjust enrichment, he must prove three things:

ii. Ron has received an enrichment; iii. Alex has sustained a corresponding deprivation; and iv. there is no juristic reason for Ron’s enrichment.

[148] If I find that the monies advanced by Alex were gifts, the claim for unjust enrichment fails because a gift is a valid juristic reason.

The Ottawa Property

[149] From May 1995 and throughout their over 22-year relationship, the parties never had a written agreement about the sharing of the expenses or the purchasing of the two properties.

[150] I find that in the spring of 1998, the parties discussed purchasing a residence. They looked at various properties. In the fall 1998, the parties made an offer to purchase on a specific property. The parties discussed that Alex would pay the down payment and for the expenses that fluctuated such as heating and municipal taxes. Ron would pay the monthly mortgage payments. Despite the fact that Ron was working full-time, he wanted to ensure that the mortgage payment was affordable, and he fully supported that Alex provided the down payment.

[151] Alex’s version is that in 1983 his mother had placed $200,000 into an investment account in the joint names of Alex and his mother to pay for his school costs in case his father stopped paying. His parents had separated and the mother wanted to ensure that the father paid for Alex’s education. Alex was able to complete his education without debt, with the assistance of his father. Alex’s argument is that the funds placed into this joint account with his mother were not to be released without his mother’s consent.

[152] While Alex was in Halifax on a conference, Ron negotiated the purchase of the Ottawa property. Negotiations were down to the bitter end at which point, according to Alex, Alex’s mother was keen on Ron and Alex buying the house. Alex’s version is that his mother agreed that Alex could use $100,000 of the investment as a down payment to buy the house with Ron on one condition. That condition was that if the house was ever sold, Alex would get back to the $100,000. Alex testified that Ron agreed. Ron denies there was ever any such discussion.

[153] Ron testified that he was aware that Alex and his mother had a joint investment account and that Alex needed his mother’s consent to withdraw any money because it was effectively her asset. Further, Ron testified that having the joint account, and considering Alex’s income as a student, it was advantageous to the mother for tax purposes. Ron testified that he had never seen any proof that there was a joint investment account at Scotia McLeod. Master Champagne in her consent order of July 21, 2017, required Alex to provide proof of the statement by August 31, 2017. On January 27, 2020, day 5 of the trial, Alex testified that he found the statements the night before, in boxes in his home.

[154] The Scotia McLeod statements indicate that on November 30, 1998 the balance in the account was $186,798. On January 31, 1999 the balance of the account was $87,576. On January 14, 1999 the sum of $99,081.82 was transferred into Alex’s CIBC account which was then used as the down payment for the purchase of the Ottawa property

[155] Ron’s evidence is that Alex spoke to his mother, then told Ron on the phone that his mother had offered $100,000 towards the both of them to purchase the home, to stop negotiating and close the deal. Ron asked Alex if there were any strings attached. Alex said there were no strings attached and no repayment.

[156] The parties made an offer to purchase and the offer was accepted. The parties retained an Ottawa lawyer to prepare the legal documents to purchase the home. Ron testified that it was important to both Alex and Ron that the home be registered as joint tenants so that the survivor would be the sole owner upon the death of the other and the intention was to protect them as a same-sex couple in the event of one of their deaths, to avoid any challenges. Alex testified that he believed the joint tenancy meant that if either party died, the survivor would be the owner and he would not get back his deposit and down payment. If the property was sold and there was no death, he would receive back is the deposit and down payment.

[157] Ron admits that Alex made the $5,000 deposit and paid $99,081.92 as the down payment. When the Ottawa property was sold, there is no evidence that Alex requested the repayment of the deposit and down payment from Ron. Rather, instead of repaying the funds, the parties agreed that all the funds be placed in their joint account with the intention to use the funds for the purchase of the Arnprior property. After the funds were received, Alex diverted $138,136.05 to his own account without Ron’s knowledge or consent.

[158] Alex testified that he did not have a written document prepared to protect his $100,000 investment because he trusted Ron. Alex testified that his parents always lent money to friends without any paper and he was raised with the concept that your word is your bond. He felt he had no reason to doubt that Ron would not honour his word.

[159] Alex’s mother died on April 4, 1999. There is no document corroborating either party’s version. The only witnesses are Ron and Alex.

[160] While living at the Ottawa property, Ron maintained the mortgage payments which did not include the taxes. Alex paid for many of the improvements such as fencing the backyard, plumbing, re-carpeting, kitchen upgrades, restoring lead glass windows and other expenses. After buying the Ottawa property in 1999, the parties prepared formal wills and powers of attorney. I accept Ron’s evidence that the parties agreed to prepare such documents to avoid any estate litigation like the litigation that Alex was involved with in Nova Scotia with his siblings regarding his mother’s estate.

[161] On March 17, 2000, Alex, in his will, referred to Ron as his “life partner” and named Ron as the estate trustee. At paragraph 3(d) of his will it stated:

It is my intention that the house municipally known as 462 Island Park Drive in the City of Ottawa, in the Regional Municipality of Ottawa Carleton, in the Province of Ontario, which is owned by me and my life partner, Ron MacIntyre, become the sole property of my life partner, Ron MacIntyre, if he survives me, upon my death, and we are holding title in said property as joint tenants.

[162] On January 30, 2001, Alex signed a codicil to his last will amending certain paragraphs of his will dealing with specific bequests to certain individuals. However, Alex did not change his will with respect to the Ottawa house.

[163] On October 6, 2000, Ron, referring to Alex as “my life partner”, designated Alex as his power of attorney for property and personal care. On the same day he executed a will bequeathing his interest in the Ottawa property to Alex and that the residue of his estate would be shared 75% to his parents and 25% to Alex. In the event that his parents predeceased Ron, all of the residue would be to Alex.

[164] Alex’s estate litigation ended on February 4, 2004. On February 2, 2004, Alex withdrew $20,000 from the joint line of credit to pay his Ottawa counsel involved in the estate litigation in Nova Scotia. There was no reconciliation or reimbursement of this withdrawal by Alex to the parties’ joint line of credit.

The Arnprior Property

[165] In 2004, the parties considered moving out of the city of Ottawa. One of the factors was that Alex was going to be receiving part of his mother’s estate and that Alex and Ron were looking for their forever home. The parties located a suitable property and sought out contractors to receive quotes on possible renovations and repairs, went to the bank for financing and also dealt with amending zoning restrictions.

[166] Ron was more comfortable knowing what his monthly expense would be each month and that he had the ability to afford to pay it. When they looked at homes, Alex and Ron did so on the basis that they anticipated that Alex would be receiving an inheritance from his mother’s estate in the area of approximately $300,000-$400,000. This was an important consideration because it would allow the parties to put a significant down payment on the property thereby reducing the amount of the mortgage that Ron was going to assume payments on.

[167] The parties purchased the property, comprised of two separate lots, on December 12, 2005 as joint tenants. The purchase price was $998,000 with a secured mortgage of $891,000, of which $500,000 was advanced on closing. The sum of $464,333.20 was applied as a down payment paid from the parties’ joint RBC account.

[168] Prior to the closing, in November 2005, Alex received part of the estate litigation settlement proceeds which he used to deposit $250,000 on November 23, 2005 into Ron and Alex’s joint RBC account and then another sum of $65,000 into the same account on December 9, 2005.

[169] When the parties purchased the property, the did so as joint tenants.

[170] On December 6, 2006, Alex prepared a handwritten will which stated the following:

I Igor Alexander Winter of 421 Gillies Grove Road Arnprior Ontario being of sound mind and body hereby leave my entire estate/assets etc. to Ronald James MacIntyre. I also appoint Ronald James MacIntyre to act as my executor as well.

Ron’s Credibility

[171] With respect to Ron, I find that he was very emotional at times and had difficulty reciting numbers from a page. He did not remember certain events but acknowledged his errors, was not evasive, and answered questions directly. In my view, the long-term effects of the mental health issues have taken their toll on this man. However, I find he was very clear on his recollection of the circumstances before and after the purchase of both real estate properties. However, there were instances were Ron’s evidence was contradicted such as:

i. he testified that his vehicle and boat were paid by Alex’s income when in fact it was paid by funds withdrawn from the parties’ joint line of credit; ii. he admitted guessing at Alex’s income when he alleged in his application that Alex earns approximately $350,000 per year. He justified his answer based on his estimate of Alex’s income with respect to their lifestyle and discussions; iii. he admitted he does not remember how he came up with the figures in his budget set out in his June 2018 financial statement; iv. Ron testified that he annually deposited $500 a month into an RRSP plan from 2010 to 2017. However, upon a review of his income tax returns for the years 2010, 2011, 2013, 2014 and 2015, there were no RRSP contributions made; v. despite testifying that Alex made no contribution to the joint RBC account where the mortgage was deducted, in cross-examination, he admitted that Alex had in fact given Ron cheques totaling $9000 in the period November to 2012 to January 2013; vi. he admitted that many numbers in his financial statement were unsupportable with corroborating evidence, were no longer being incurred or were being incurred at a lesser amount; vii. he admitted he did not know what he based the figure of $1500 a month for vacations as indicated in his proponent budget; viii. he could not explain the figures that he would put in his proposed budgets; ix. he could not explain what he was spending the money on; and x. he admitted that his investments have dropped by approximately $215,000 as of December 2019 as a result of the payment of his legal fees for this litigation.

Alex’s Credibility

[172] With respect to Alex, I found that Alex was emotional during his testimony especially when recounting the harassment that he and Ron were subjected to while living at the Arnprior property and the effect this had on their lives. He answered the questions directly and was not evasive.

[173] I found that Alex has knowingly ignored court orders as follows:

i. despite being ordered on July 21, 2017 to provide a reconciliation of the joint line of credit from February 1, 2010, he failed to do so prior to the trial. However, on January 28, 2020, during the trial, he produced the reconciliation; ii. despite being ordered on July 21, 2017 to produce proof of evidence of investments as of the date of cohabitation by August 31, 2017, he failed to do so prior to the trial. However, on day 5 of the trial, he produced a statement from Scotia McLeod dated November 1998 which he stated he found the previous night. I simply did not find that it is believable that Alex only found the statement during the trial; iii. despite being ordered on March 5, 2018 to designate Ron as the irrevocable beneficiary of his Great West Life insurance policy he did not do so until late December 2019/early January 2020. Even then, he has designated Ron as the revocable not irrevocable beneficiary.

Analysis

[174] However, I found that Alex was not forthright and that his evidence was at times not credible and reliable such as:

i. Alex’s evidence that when he removed the contents of the home in February 2017, he had no notice of Ron’s request that nothing be moved was contradicted when he admitted in cross examination that he had received a letter on February 7, 2017 from Ms. Blais requesting that no contents be removed from the property; ii. Alex testified that he could not afford to pay the carrying costs of the Arnprior property after separation. However, in his financial statement dated June 16, 2017, he indicated his monthly expenses to be $2500 a month for rent of an apartment with a gym, $822 towards a car loan, $1200 for a personal trainer and $2500 to a monthly RRSP contribution. Further, his income for 2015 was $191,942.50. I find that the statement indicating that he could not afford to pay is not credible when compared to his income and monthly budget; iii. Alex stated on his financial statements that when he started to cohabit with Ron, he owned land in Halifax with his mother. In cross examination, Alex admitted that the deed was not registered until 1999 after his mother’s death; iv. Alex failed to disclose an apparent account with Nesbitt Burns in his financial statement dated January 14, 2020, that apparently existed at the date of cohabitation. This failure to disclose is causing me concern about his reliability; v. Alex testified that Ron knew by March 2018 that Alex was with J.P. Blais. However, in the transcript of his questioning on June 20, 2019 at question 116, Alex replied “I have had no contact with Mr. McIntyre”. I find that Alex’s testimony was contradicted by his own statement made at questioning; vi. Alex testified that the Arnprior property, after being purchased by Mr. Blais, was rented out in the summer of 2018 so he did not stay there. However, at page 10, question 37 of his questioning of June 20, 2019 he admitted that he stayed there for “the summer 2018 from August to October”. Alex’s testimony was contradicted by his own words at the questioning; vii. Alex denied that he lives at the Arnprior property, but a copy of Alex’s Hudson Bay account ending April 26, 2019, listed his account address to be the Arnprior property; viii. Alex failed to list his 2018 Dodge Ram purchased by him in November 2018 for $55,000 on his sworn August 23, 2019 financial statement; ix. I find that Alex was aware that at one point that his friend, Mr. Blais, wanted to purchase the property. On December 6, 2017, Alex obtained a quote for renovations to the property which he emailed to Mr. Blais but not to Ron or the real estate agent. Alex’s explanation is that he sent it to Mr. Blais because Mr. Blais, who resided in Gatineau, Québec, was anxious to see what the cost of renovations would cost in Ontario. I find that answer completely unbelievable especially in light of the fact that Alex lent Mr. Blais $250,000 to purchase the property; x. Alex testified that he never told Mr. Blais that there was an arbitration or the time. Mr. Blais’ offers to purchase were sent on the same day as the scheduled arbitration on the sale of the property. Mr. Blais’ second offer to purchase expired on March 8, 2018 at 5:00 pm, just one hour before the start of the arbitration between Ron and Alex. I simply do not believe Alex. It is too strong a coincidence that this alleged third-party was submitting offers to purchase real estate property as late as one hour before an arbitration involving Alex and Ron; and, xi. Alex was not forthright with the facts when interviewed by Dr. Ricci in the preparation of her report regarding his current situation.

[175] I have considered the following factors:

i. By the time the parties purchased the Ottawa property, they had been living together for over five years being from May 1995 to December 1999; ii. I find that the parties agreed that they would finance the purchase of the Ottawa property by Alex providing the down payment and deposit, and Ron would pay the monthly mortgage payments. In addition, Alex would pay any expenses that fluctuated; iii. I do not find it credible that Alex would invest approximately $100,000 into a property and not secure the repayment with a document in writing because that is how his parents operated while living in Nova Scotia. By December 1999, Alex was working as a doctor, had run his own practice and had investments. I find that he was a sophisticated person and that it is not credible that he would advance the large sum of $100,000 without having some type of written acknowledgment if he intended to have the funds repaid; iv. If Alex intended to protect his deposit and down payment, he could easily have registered the property as tenants-in-common or sign a cohabitation agreement. He could have had Ron sign a formal contract or any document in writing confirming his agreement or any type of written evidence of an agreement to repay the deposit and down payment; v. I accept Ron’s evidence that Ron and Alex decide to register the properties as joint tenants because they were joint owners as well as to avoid any litigation in the event of the death of one of them; vi. I find that Alex’s decision to have the property registered as joint tenants supports Ron’s argument that there never was an intention to repay the deposit and down payment, also and supports the conclusion that Alex intended to gift the deposit and down payment to Ron as part of their financial arrangements for the purchase and use of the property; vii. I find that their wills confirm that they considered each other their life partners and were giving each other a lifelong commitment. Additionally, there is nothing in Ron’s will where he acknowledges an obligation to repay anything to Alex; viii. Alex’s codicil dated December 6, 2006, signed after purchasing the Arnprior property, leaves all of Alex’s assets to Ron upon Alex’s death. This further supports the finding that there was never an intention to require Ron to repay Alex any sum of money; ix. I simply do not accept as credible that Alex would on one hand not require the repayment of the down payment and deposit by Ron if Alex died but that he would insist upon payment if there was no death; x. I find that Alex’s testimony of the intention to repay was contradicted by the joint decision to direct that the proceeds of the Ottawa property in the amount of $435,828.25 be deposited “to our bank account”. If there was an obligation to repay the deposit and down payment for the Ottawa property, there was no action taken by Alex to require that payment. I conclude the reason there was no repayment is because there was no obligation to repay. xi. I find that if Ron had agreed to repay the monies, then why did Alex transfer $138,136.05 from the sale proceeds of the Ottawa property to his own account without the knowledge and consent of Ron. If Ron had agreed to repay Alex for the deposit and down payment for the Ottawa property, there was no reason for Alex to hide the transfer. Perhaps Alex changed his mind after the sale of the Ottawa property about being reimbursed but the issue is what Alex’s intention was at the date of the transfer of both properties. I conclude that his intention was to gift the funds to Ron and there was never any intention at the date of the transfers that Ron had to repay any money.

Disposition Regarding the Arnprior Property

[176] I order that the net proceeds of sale of the Arnprior property shall be divided equally between the parties. However, until the disposition of costs has been decided, none of the funds are to be released pending further order of this court.

Costs

[177] I direct that the parties should attempt to resolve the issue of costs. If they are unable to do so by June 17, 2020, I order Ron to provide his cost submissions not to exceed three pages plus a detailed bill of costs and any offers to settle by June 26, 2020. Alex is to provide his cost submissions by July 10, 2020 with said submissions not to exceed three pages plus a detailed bill of costs and any offers to settle. Ron may file reply cost submissions not to exceed 2 pages by July 17, 2020.

Released: June 8, 2020

COURT FILE NO.: FC-17-421 DATE: 2020-06-08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Ronald James MacIntyre Applicant – and – Igor Alexander Winter Respondent REASONS FOR JUDGMENT Shelston J.

Released: June 8, 2020